Affirmed and Opinion Filed August 25, 2015
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01407-CV
CHRISTIAN CARE CENTERS, INC., Appellant V. REBECCA O'BANION AND JANIS L. WOOD, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVES OF THE ESTATE OF J.D. RICHMOND, DECEASED, Appellees
On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-09-12201
MEMORANDUM OPINION Before Justices Bridges, Lang, and Evans Opinion by Justice Bridges Christian Care Centers, Inc. (CCC) appeals the trial court’s judgment in favor of Rebecca
O’Banion and Janis L. Wood, individually and as personal representatives of the estate of J.D.
Richmond. In four issues, CCC argues the evidence was legally insufficient to establish that (1)
a drainage grate on CCC’s property was an unreasonably dangerous condition, (2) CCC failed to
make its drainage grate safe or failed to warn Richmond, (3) Richmond’s death was foreseeable,
and (4) O’Banion and Wood suffered compensable mental anguish. In two issues on cross-
appeal, Wood and O’Banion argue the trial court erred in submitting Richmond’s negligence to
the jury and in refusing to submit issues on gross negligence and exemplary damages. We affirm
the trial court’s judgment. In May 2007, Richmond moved in to Bentley Assisted Living Facility (Bentley),
operated by CCC. Richmond had two daughters, Wood and O’Banion. Wood visited her father
approximately twice each week and, despite living in Houston, O’Banion visited him and spoke
with him regularly. CCC’s activities director, as well as nurses who worked at CCC, discussed
Richmond’s need for a walker with Wood. Wood purchased a walker, and Richmond began
using it.
CCC encouraged its residents to exercise and provided a path on CCC property. The
markings enabled residents to measure the distance they walked. The path went downhill on a
road to a set of speed bumps and a drainage grate. There was a mirror and a road sign to warn
traffic that pedestrians were present.
On September 12, 2007, Linda Morrison, CCC’s vice president of operations, was
walking on a sidewalk on CCC property when she saw Richmond sitting on his walker.
Richmond was “riding on the seat” and “propelling [the walker] with his feet.” Richmond’s
“back was facing down towards the incline that he was about to approach.” Morrison called out
to Richmond to “be careful” and “slow down.” No one saw Richmond fall, but a maintenance
worker found Richmond laying on a drainage grate with his legs on top of the walker. He said
he was fine, but CCC insisted that he go to the hospital. Richmond subsequently died from
injuries related to the accident.
Woods and O’Banion sued CCC, asserting CCC was negligent in, among other things,
encouraging residents to roam the grounds freely without supervision or accompaniment,
designing a walking path in such a manner that it crossed over a drainage grate, failing to
adequately warn Richmond, and failing to post a warning sign.
At trial, Wood testified she loved her father, and O’Banion was “very upset” when Wood
told O’Banion Richmond was injured. When Wood saw her father in the hospital, he had “a tube
–2– down his throat and all sorts of machines on him,” but he tried to raise his arm in
acknowledgment when she arrived. Wood was shown Richmond’s CAT scan and told that
Richmond was not going to recover and it would be best to remove Richmond from life support.
Richmond’s condition deteriorated rapidly. Wood went home to wait for O’Banion to drive
from Houston, and they decided to remove Richmond from life support the next day. The
hospital asked Wood to donate Richmond’s tissues and bones. Wood and O’Banion watched
their father die after hospital staff removed Richmond’s respirator. After Richmond’s death,
Wood was “not sure” how long it was before she “got a decent night’s sleep.” Wood “relive[d]
everything in [her] mind, and we didn’t know things like how long he laid there.” It was “about
a month” before Wood “resumed everything she was doing,” including returning to her volunteer
work.
O’Banion testified she received a call from Johnnye Okoli at CCC that Richmond “had
fallen and hit his head.” O’Banion asked Okoli how it had happened, and Okoli said “the walker
wheel had become stuck in the grate, he’d fallen over and hit his head.” Okoli said Richmond
“was talking, that he had hurt his head and had a cut on his head, and that he had skinned his
elbow as well.” Okoli said the ambulance was there, and they were going to take Richmond to
the hospital. Before Richmond’s condition suddenly changed, O’Banion was not able to speak to
him because there was not a phone available in the hospital room. O’Banion felt guilty because
she was not there and was not able to speak to him on his last day. O’Banion had difficulty
sleeping for a month after Richmond’s death, and the stress affected her diabetes.
Rob Runnels, CCC’s director of facilities, testified he had seen residents walking on the
road where Richmond was injured. Runnels testified the road could be dangerous to residents
with mobility problems. Runnels warned residents with “mobility issues” not to “walk down
there.” Runnels admitted that CCC could have put a sign indicating that the road was not a
–3– pedestrian path. Runnels testified the drainage grate was designed by a civil engineer to hold the
amount of water and debris that runs down from two hills.
Sue Nelson, formerly in charge of Bentley, testified she inspected the area where
Richmond fell after his fall. Nelson testified that, in her opinion, the area was not unsafe.
Nelson testified she did not know how long the mile markers had been beside the road or who
put them there, but she was aware that seniors walked on the road. To Nelson’s knowledge,
CCC did not do “anything to warn seniors not to go down there.”
The court’s charge asked the jury to find what percentage of negligence, if any, should
have been attributed to CCC, Richmond, and Wood. The charge submitted the issues of Wood’s
and O’Banion’s past and future loss of companionship and society and past and future mental
anguish. The jury found CCC and Richmond were each fifty percent negligent and Wood was
not negligent. The jury awarded O’Banion zero damages for past and future loss of
companionship and $7500 for mental anguish suffered because of Richmond’s death. The jury
awarded Wood $30,000 for past loss of companionship and society, $10,000 for future loss of
companionship, $40,000 for past mental anguish, and $15,000 for future mental anguish. The
jury awarded Richmond $20,000 for the pain and mental anguish experienced before his death.
The trial court entered judgment reducing these amounts by half due to Richmond’s being fifty
percent at fault. This appeal followed.
In its first two issues, CCC challenges the sufficiency of the evidence to establish (1) a
drainage grate on CCC’s property was an unreasonably dangerous condition, (2) CCC failed to
make its drainage grate safe or failed to warn Richmond.
When considering the legal sufficiency of the evidence, we consider only the evidence
and inferences tending to support the jury’s finding, disregarding all evidence to the contrary.
Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992). If the record contains any evidence of
–4– probative force to support the jury’s finding, the finding will be upheld. ACS Investors, Inc. v.
McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).
A property owner’s duty is decided by the court as a question of law and is dependent on
factors like foreseeability, risk of injury, and the burden on the owner. Del Lago Partners, Inc.
v. Smith, 307 S.W.3d 762, 767 (Tex. 2010). Generally, premises owners have a duty to protect
invitees from, or warn them of, conditions posing unreasonable risks of harm if the owners knew
of the conditions or, in the exercise of reasonable care, should have known of them. See TXI
Operations, L.P. v. Perry, 278 S.W.3d 763, 764–65 (Tex. 2009). To recover on a premises
liability theory, a plaintiff must establish that the injury resulted from a condition of the
premises. Keetch v. The Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). A plaintiff must prove:
1) actual or constructive knowledge of some condition on the premises by the owner/operator;
2) that the condition posed an unreasonable risk of harm;
3) that the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and
4) that the owner/operator's failure to use such care proximately caused the plaintiff's injuries.
Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998), See also CMH
Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).
The duty owed by a property owner is to exercise reasonable care to protect against
dangerous conditions on the premises that create an unreasonable risk of harm which it knew
about, or by the exercise of reasonable care, would have discovered. CMH Homes, Inc. v.
Daenen, 15 S.W.3d 97, 101 (Tex. 2000). The threshold requirement for a premises liability
claim is the existence of actual or constructive knowledge of a condition on the premises. See
Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). “An owner/occupier cannot breach a
duty that it does not owe, and it does not owe a duty to correct an alleged dangerous condition of
–5– which it is not aware.” Id. at 4; Gillespie v. Kroger Texas, L.P., 415 S.W.3d 589, 592 (Tex.
App.—Dallas 2013, pet. denied). Ordinarily, an unreasonably dangerous condition for which a
premises owner may be liable is the condition at the time and place injury occurs, not some
antecedent situation that produced the condition. Brookshire Grocery Co. v. Taylor, 222 S.W.3d
406, 407 (Tex. 2006).
If the evidence conclusively establishes that the property owner adequately warned the
injured party of the condition, then the property owner was not negligent as a matter of law.
Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 369 (Tex. App.—Houston [14th Dist.] 2002,
pet. denied). To be adequate, a warning must be more than a general instruction such as “be
careful”; the warning must notify of the particular condition. TXI Operations, 278 S.W.3d at
765.
A property owner’s warning to an invitee of an unreasonably dangerous condition is
adequate if, given the totality of the surrounding circumstances, the warning identifies and
communicates the existence of the condition in a manner that a reasonable person would
perceive and understand. Henkel v. Norman, 441 S.W.3d 249, 253 (Tex. 2014) (per curiam).
Here, the jury saw pictures of the area where the incident occurred. The pictures of the
area marked for walking showed the mirror, road sign, and mile markers that residents used to
track their exercise. There was no sidewalk in the area at the bottom of the hill where the
drainage grate and speed bumps were, yet CCC knew residents walked the road and permitted,
encouraged residents to exercise, and allowed mile markers to mark the road, including the area
where the drainage grate was. Runnels, CCC’s director of facilities in charge of the campus’s
security, landscaping, and safety, testified that the area where the incident occurred could be
dangerous to residents with mobility problems. He also said that he would warn those residents
not to go down there. CCC did not warn residents of the specific condition at the bottom of the
–6– hill, the drainage grate, but Runnels stated that CCC could have easily put up signs warning
residents of that condition. Morrison testified she saw Richmond just before the incident, and he
was sitting on his walker pushing it backwards with his feet. She told him to “be careful” and
“slow down” but did not intervene or warn him of any particular peril. From this evidence, we
conclude the evidence was legally sufficient to establish the drainage grate on CCC’s property
was an unreasonably dangerous condition, and CCC failed to make its drainage grate safe or
failed to warn Richmond. See Weirich, 833 S.W.2d at 945; TXI Operations, 278 S.W.3d at 765;
Henkel, 441 S.W.3d at 253. We overrule CCC’s first and second issues.
In its third issue, CCC argues the evidence is legally insufficient to establish Richmond’s
death was foreseeable. The question of proximate cause is normally one for the jury. Caldwell
v. Curioni, 125 S.W.3d 784, 793 (Tex. App.—Dallas 2004, pet. denied). Proximate cause has
two elements: cause in fact and foreseeability. Paragon Gen. Contractors, Inc. v. Larco Const.,
Inc., 227 S.W.3d 876, 887 (Tex. App.—Dallas 2007). These elements cannot be established by
mere conjecture, guess, or speculation. Id. The test for cause in fact is whether the act or
omission was a substantial factor in causing the injury and without which the harm would not
have occurred. Id.; Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).
Foreseeability means a person of ordinary intelligence should have anticipated the dangers that
his negligent act created for others. Lincoln Prop. Co. v. DeShazo, 4 S.W.3d 55, 60-61 (Tex.
App.—Fort Worth 1999, pet. denied). Foreseeability requires only that the general danger, not
the exact sequence of events that produced the harm, be foreseeable. Timberwalk Apartments,
Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).
Here, the jury heard evidence that the drainage grate at the bottom of the hill had
openings big enough to catch a cane, walker, or shoe, causing a senior to trip and fall. The grate
was on a roadway where residents walked and where mile markers were set up to encourage
–7– them to walk. Runnels testified that the area where the incident occurred could be dangerous to
residents with mobility problems. Runnels knew some of the residents used walkers, and it was
foreseeable that one of them could end up falling and hitting their head resulting in their death as
a result of being tripped by the drainage grate. See id. We conclude the evidence was legally
sufficient to establish that Richmond’s death as a result of such a fall was foreseeable. See
Weirich, 833 S.W.2d at 945. We overrule CCC’s third issue.
In its fourth issue, CCC argues the evidence is legally insufficient to establish that
O’Banion and Wood suffered compensable mental anguish. We apply a traditional no-evidence
standard to a mental anguish finding to determine whether the record reveals any evidence of a
high degree of mental pain and distress that is more than mere worry, anxiety, vexation,
embarrassment, or anger. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). In
reviewing a jury’s finding, we consider whether the evidence at trial would enable reasonable
and fair-minded people to reach the verdict under review, crediting favorable evidence if
reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not.
City of Keller v. Wilson, 168 S.W.3d 802, 822-27 (Tex. 2005). We consider all of the evidence
in the light most favorable to the verdict, and indulge every reasonable inference that would
support it. Id. at 822. It is well-settled that there must be both evidence of the existence of
compensable mental anguish and evidence to justify the amount awarded. See Serv. Corp. Int'l
v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011); Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex.
2002).
Mental anguish damages cannot be determined with mathematical precision but only
through the exercise of sound judgment. Bentley, 94 S.W.3d at 605. A great deal of discretion is
given to the jury in awarding an amount of damages it deems appropriate for pain and suffering.
HCRA of Texas, Inc. v. Johnston, 178 S.W.3d 861, 871 (Tex. App.—Fort Worth 2005, no pet.).
–8– While the impossibility of any exact evaluation of mental anguish requires that a jury be given a
measure of discretion in finding damages, that discretion is limited and the jury must find an
amount that, in the standard language of the jury charge, “would fairly and reasonably
compensate” for the loss. Saenz v. Fid. Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.
1996). An award of mental anguish damages will survive a legal sufficiency challenge when the
plaintiff has introduced direct evidence of the nature, duration, and severity of her mental
anguish, thus establishing that there was a substantial disruption in her daily routine. Parkway
Co., 901 S.W.2d at 444; O’Dell v. Wright, 320 S.W.3d 505, 514 (Tex. App.—Fort Worth 2010,
pet. denied). Evidence of past pain and mental anguish may be proven through a plaintiff's
testimony or other evidence, including circumstantial evidence. Telesis/Parkwood Retirement I,
Ltd. v. Anderson, 462 S.W.3d 212, 239 (Tex. App.—El Paso 2015, no pet.). In the absence of
direct evidence of pain, the jury is permitted to infer the occurrence of pain from the nature of
the injury. Id.
Here, Richmond was a healthy resident of CCC’s facility, and Wood visited him often.
O’Banion, who lived in Houston, also visited. After his fall, Richmond initially appeared only
slightly injured. However, as Wood and O’Banion learned, Richmond’s injuries became more
serious over time. Wood was able to see Richmond at the hospital, and he acknowledged her but
was unable to speak to her. O’Banion was unable to speak with Richmond before his death.
Wood and O’Banion were faced with making the decision to take their father off life support and
whether to donate his tissues and bones. Wood and O’Banion watched their father die from his
injuries after he was removed from life support. Both Wood and O’Banion suffered
sleeplessness and suffering as a result of Richmond’s death. After Richmond’s death, Wood was
“not sure” how long it was before she “got a decent night’s sleep.” Wood “relive[d] everything
in [her] mind, and we didn’t know things like how long he laid there.” It was “about a month”
–9– before Wood “resumed everything she was doing,” including returning to her volunteer work.
The stress affected O’Banion’s diabetes.
We conclude this evidence was legally sufficient to support the jury’s finding that Wood
and O’Banion suffered compensable mental anguish. See id. We overrule CCC’s fourth issue.
In their first and second issues on cross-appeal, Wood and O’Banion argue the trial court
erred in submitting Richmond’s negligence to the jury and in denying Richmond jury issues on
gross negligence and exemplary damages.
We review the trial court’s decision to submit a particular question for an abuse of
discretion. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); Henry v.
Masson, 333 S.W.3d 825, 848–49 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner or if it acts without
reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985). The trial court is required to submit to the jury a properly
requested question that is raised by the pleadings and evidence and is necessary to enable the
jury to render a verdict. TEX. R. CIV. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162,
166 (Tex. 2002); Halmos v. Bombardier Aerospace Corp., 314 S.W.3d 606, 617 (Tex. App.—
Dallas 2010, no pet.). A trial court may refuse to submit a question only if there is no evidence
in the record to warrant its submission. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992);
Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 824 (Tex. App.—Dallas 2003, pet.
denied); see also Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex. 1992) (per curiam) (trial
court erred by denying properly requested question on viable affirmative defense that was timely
raised by pleadings and evidence).
A plaintiff’s actions are taken into account in calculating recovery, but do not completely
bar recovery unless his or her actions account for more than fifty percent of the responsibility or
–10– satisfy the elements of the statutory affirmative defense in section 93.001. TEX. CIV. PRAC. &
REM. CODE. §§ 33.001–.003, 93.001 (West 2015); Dugger v. Arredondo, 408 S.W.3d 825, 836
(Tex. 2013). A liable defendant is generally responsible only for the percentage of damages
found by the trier of fact equal to that defendant's percentage of responsibility with respect to
those damages. TEX. CIV. PRAC. & REM. CODE ANN. § 33.013 (West 2015). We reverse and
render only if no evidence—or less than a scintilla of evidence—exists to support the judgment.
Olympic Arms, Inc. v. Green, 176 S.W.3d 567, 576 (Tex. App.—Houston [1st Dist.] 2004, no
pet.). By its terms, Chapter 33 expressly applies to “any cause of action based on tort.” TEX.
CIV. PRAC. & REM. CODE § 33.002 (West 2015). The trier of fact shall determine the percentage
of responsibility with respect to each person's causing or contributing to cause in any way the
harm for which recovery of damages is sought, whether by negligent act or omission, by any
defective or unreasonably dangerous product, or by other conduct or activity that violates an
applicable legal standard. See TEX. CIV. PRAC. & REM. CODE § 33.003(a) (West 2015). The
language of the statute indicates the Legislature’s desire to compare responsibility for injuries
rather than bar recovery, even if the claimant was partly at fault or violated some legal standard.
See Parker, 565 S.W.2d at 518 (discussing article 2212a, which is now Chapter 33); Dugger, 408
S.W.3d at 831-32.
In reviewing an award for exemplary damages, the court conducts a legal sufficiency
review under the “clear and convincing” evidence standard. Garza, 164 S.W.3d at 609. “‘Clear
and convincing’ means the measure or degree of proof that will produce in the mind of the trier
of fact a firm belief or conviction as to the truth of the allegations sought to be established.”
TEX. CIV. PRAC. & REM. CODE § 41.001(2); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002); U-
Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137-38 (Tex. 2012).
–11– A corporation may be liable in punitive damages for gross negligence only if the
corporation itself commits gross negligence. Anderson, 462 S.W.3d at 250. Because a
corporation can “act only through agents of some character,” the court has developed tests for
distinguishing between acts that are solely attributable to agents or employees and acts that are
directly attributable to the corporation. See Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387,
391 (Tex. 1997). A corporation is liable for punitive damages if it authorizes or ratifies an
agent’s gross negligence or if it is grossly negligent in hiring an unfit agent. Mobil Oil Corp. v.
Ellender, 968 S.W.2d 917, 921 (Tex. 1998).
Gross negligence consists of both objective and subjective elements. See Lee Lewis
Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). Plaintiffs must prove by clear and
convincing evidence that 1) when viewed objectively from the defendant’s standpoint at the time
of the event, the act or omission involved an extreme degree of risk, considering the probability
and magnitude of the potential harm to others and 2) the defendant had actual, subjective
awareness of the risk involved, but nevertheless proceeded with conscious indifference to the
rights, safety, or welfare of others. See id.; TEX. CIV. PRAC. & REM. CODE § 41.001(11); State v.
Shumake, 199 S.W.3d 279, 287 (Tex. 2006). Evidence of simple negligence is not enough to
prove either the objective or subjective elements of gross negligence. See Universal Servs. Co.
v. Ung, 904 S.W.2d 638, 641 (Tex. 1995). Under the first element, “extreme risk” is not a
remote possibility of injury or even a high probability of minor harm, but rather the likelihood of
serious injury to the plaintiff. See Ung, 904 S.W.2d at 641. Under the second element, actual
awareness means that the defendant knew about the peril, but its acts or omissions demonstrated
that it did not care. Ellender, 968 S.W.2d at 921.
Here, Morrison testified Richmond was sitting on his walker pushing it with his feet
toward the incline leading down to the area where the drainage grate and speed bumps were.
–12– The walker was not designed to be ridden in this manner. This evidence alone raised the issue of
Richmond’s negligence, and the trial court therefore did not abuse its discretion in submitting the
issue of Richmond’s comparative responsibility to the jury. See E.B., 802 S.W.2d at 649. We
overrule Wood and O’Banion’s first cross-point.
As to the gross negligence issue, CCC presented evidence showing that there had never
been a similar accident in the area where Richmond fell. Runnels testified the drainage grate
was designed by a civil engineer to hold the amount of water and debris that runs down from two
hills. Under these circumstances, we conclude the trial court did not abuse its discretion in
refusing to submit to the jury the issues of gross negligence and exemplary damages. See
Ellender, 968 S.W.2d at 921; E.B., 802 S.W.2d at 649. We overrule Wood and O’Banion’s
second cross-point.
We affirm the trial court’s judgment.
121407F.P05
/David L. Bridges/ DAVID L. BRIDGES JUSTICE
–13– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CHRISTIAN CARE CENTERS, INC., On Appeal from the 162nd Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. DC-09-12201. No. 05-12-01407-CV V. Opinion delivered by Justice Bridges. Justices Lang and Evans participating. REBECCA O'BANION AND JANIS L. WOOD, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVES OF TEH ESTATE OF J.D. RICHMOND, DECEASED, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee REBECCA O'BANION AND JANIS L. WOOD, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVES OF THE ESTATE OF J.D. RICHMOND, DECEASED recover their costs of this appeal from appellant CHRISTIAN CARE CENTERS, INC.
Judgment entered August 25, 2015.
–14–