Browning-Ferris, Inc. v. Hobson

967 S.W.2d 543, 1998 Tex. App. LEXIS 2523, 1998 WL 208998
CourtCourt of Appeals of Texas
DecidedApril 30, 1998
DocketNo. 14-97-00250-CV
StatusPublished
Cited by10 cases

This text of 967 S.W.2d 543 (Browning-Ferris, Inc. v. Hobson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Browning-Ferris, Inc. v. Hobson, 967 S.W.2d 543, 1998 Tex. App. LEXIS 2523, 1998 WL 208998 (Tex. Ct. App. 1998).

Opinions

OPINION

AMIDEI, Justice.

Browning-Ferris, Inc., (BFI) appeals from a judgment upon a jury verdict in favor of appellee, Larry D. Hobson (Hobson) for money damages. Hobson sued BFI for money damages as a result of injuries he sustained to his shoulder when he threw a bag of trash into the top of BFI’s dumpster. In five points of error, BFI contends there is no evidence that BFI’s negligence was a proximate cause of the occurrence or of Hobson’s injuries and the trial court erred in: (1) and (2), submitting questions on BFI’s negligence and proximate cause to the jury; (3) rendering judgment on the jury’s verdict; and (4) and (5), denying BFI’s motions for judgment notwithstanding the verdict (JNOV). In point of error six, appellant contends the evidence is factually insufficient to support the judgment of the trial court upon the jury’s verdict. We affirm.

I. BACKGROUND.

On September 22, 1992, Hobson injured his shoulder while throwing a bag of trash into the top of an 80-inch tall, eight-yard BFI dumpster. Hobson was working as a maintenance man for the Farmington Apartments and was required to empty trash into three dumpsters on a regular basis. Hobson alleged that BFI was negligent in: (1) damaging the side-loading door of the dumpster so that it would not open, (2) failing to inspect the sideloading door to determine its damaged condition, and (3) failing to respond to two calls notifying BFI of the damage, and either repair or replace the damaged dumpster. As a result of BFI’s negligence, Hob-son alleged he could not use the side-loading dumpster door and was forced to load trash by lifting heavy trash bags over his head, and throw them in the top part of the dumpster that was 80 inches from the ground. Hobson alleged that the extra strain of lifting the trash bags over his head resulted in a permanent shoulder injury. In question one, the jury found the negligence of BFI and Hob-son proximately caused the occurrence and Hobson’s injury. In question two, the jury allocated 90% of the comparative responsibility to BFI, and 10% to Hobson. The jury awarded Hobson $350,000.00 for physical pain, mental anguish, loss of earning capacity, physical impairment, and medical care.

II. CAUSATION.

BFI argues its first five points of error together contending there is no evidence that BFI’s negligence proximately caused Hob-son’s injuries.

A. Standard of Review — No evidence. When we review a no evidence claim, we consider only the evidence and inferences tending to support the jury’s fact finding. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). We disregard all contrary evidence and inferences. Id. If there is any evidence of probative force to support the finding, we overrule the point of error and uphold the jury’s finding. Id. If there is more than a scintilla of probative evidence in the record to support the finding, a no evidence challenge fails. Id.

1. Proximate Cause — Cause in Fact.

a. Applicable Law. The components of proximate cause are “cause in fact” and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 [546]*546(Tex.1995); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). The test for cause in fact is whether the negligent “act or omission was a substantial factor in bringing about the injury” without which the harm would not have occurred. Doe, 907 S.W.2d at 477. Cause in fact is not shown if the defendant’s negligence did no more than furnish a condition that made the injury possible. Doe, 907 S.W.2d at 477; Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995). The question of proximate cause is one of fact that is particularly within the province of the jury, and a jury finding on proximate cause will be set aside only in the most exceptional circumstances. Farley v. M M Cattle Co., 529 S.W.2d 751, 756 (Tex.1975); Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 425-26 (Tex.App.-Houston [1st Dist.] 1990, no writ).

b. Application of Law to the Facts. In its supplemental motion for JNOV, BFI contended there was no evidence to support the jury’s finding of proximate cause in light of the recent supreme court decision in Leitch, 935 S.W.2d at 118-120. In its brief, BFI argues Hobson did not present any evidence to show his injury would not have happened if the side door had been operable, citing Leitch as analogous to this case. In Leitch, the plaintiff, Hornsby, alleged that he injured his back while lifting a cable reel. Id. at 118. Hornsby contended he would not have been injured if he had been furnished a lift belt or other equipment to lift the cable reel out of his truck. Id. Hornsby’s physician testified that Hornsby’s injuries were caused by lifting the cable reel. However, in response to a question about whether Horns-by’s injury could have been prevented by the use of a lift belt, Hornsby’s physician testified he could not say that providing a lift belt would have prevented the injuries. Id. at 119. The supreme court found that the doctor’s testimony was no evidence of causation and no probative evidence existed that Hornsby’s injury was proximately caused by the breach of duty to provide him with proper lifting equipment. Id.

The supreme court further found that the opinion of Hornsby’s co-worker, Larry Whid-den, that the use of a lift belt would have eliminated Hornsby’s injuries was no evidence of causation. Id. at 119. The Leitch court found that Whidden was not qualified to testify about whether lifting equipment would have prevented -Hornsby’s injuries. Id. The supreme court held, in pertinent part:

Whidden’s testimony has no probative worth and is not proper evidence of causation because his testimony amounts to mere conjecture, and because he was not qualified to testify about what type of lifting devices might have prevented Horns-by’s injuries. [Citations omitted]. Therefore, there is no evidence to support the jury’s verdict.

Id. at 119.

Appellant argues there was no medical testimony in this case to connect Hobson’s injuries to the damaged side-door. Appellant cites testimony from Dr. Robert Koshman, Hobson’s primary physician, in support of his argument that there was no medical testimony linking the injury to the side door. During cross-examination by appellant’s counsel, the following testimony was elicited:

[APPELLANT’S COUNSEL]: Now, can you get an impingement syndrome by tossing underhand a bag of garbage into a dumpster one time?
[DR. KOSHMAN]: I don’t know.

Later in the cross-examination, the following was elicited:

[APPELLANT’S COUNSEL]: Are you able to tell us if a motion whereby somebody

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967 S.W.2d 543, 1998 Tex. App. LEXIS 2523, 1998 WL 208998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/browning-ferris-inc-v-hobson-texapp-1998.