Continued Care, Inc. v. Fournet

979 S.W.2d 419, 1998 WL 786831

• Court: Court of Appeals of Texas
• Decided: December 17, 1998
• Docket: 09-97-020 CV
• Status: Published

Opinions

OPINION

WALKER, Chief Justice.

In this appeal, June Marie Davis Fournet, Dan Davis and Ron Davis, (Davis’ Estate) initially sued D’Ann Riggs, individually and Continued Care, Inc., d/b/a Gulf Health Care Center (“Gulf Health Care”). Davis’ Estate filed a negligence action against Gulf Health Care contending that D’Ann Riggs, former employee of Gulf Health Care, stole pan medication known as “Demerol” which had been prescribed for Warren Davis, a cancer patient at Gulf Health Care nursing home. In its Fifth Amended Petition, Davis’ Estate alleged that Gulf Health Care was Negligent in its hiring, supervision, and retention of D’Ann Riggs as a Registered Nurse. Davis’ Estate also made other negligence allegations against Gulf Health Care relating to the overall inadequate care of Warren Davis, claiming that while a resident of Gulf Health Care, Mr. Davis developed bedsores and suffered from elevated blood sugar.

Prior to the trial of this cause, Davis’ Estate non-suited D’Ann Riggs, and Riggs was dismissed as a defendant in the lawsuit. The case proceeded to trial on August 12, 1996. The trial court directed verdict in favor of Gulf Health Care against plaintiffs’ claims regarding Mr. Davis’ high blood sugar and bedsores. The trial court denied Gulf Health Care’s motion for directed verdict on the claim that Gulf Health Care’s action resulted in Warren Davis’ suffering pain due to not receiving his pain medication. The jury, by a 10-2 verdict, found favorably for the Davis’ Estate on two issues: 1) that D’Ann Riggs stole or diverted Warren Davis’ Demerol pain medication; and 2) Gulf Health Care was negligent in its supervision of D’Ann Riggs.¹ The jury awarded Davis’ Estate $150,000 in damages.

Judgment was entered against Gulf Health Care; Gulf Health Care filed a motion for judgment notwithstanding the verdict which was denied by the trial court. Gulf Health Care appeals from the final judgment raising two points of error.

Point of Error No. 1

The trial court erred in not granting a directed verdict for Gulf Health Care and in not granting a judgment notwithstanding the verdict for Gulf Health Care because no evidence based upon reasonable medical probability supported a finding of an injury to Warren Davis.

Point of Error No. 2

The trial court erred in not granting a directed verdict for Gulf Health Care Center and in not granting a judgment notwithstanding the verdict for Gulf Health Care because no evidence supported a finding that D’Ann Riggs stole Warren Davis’ demerol, resulting in an injury to Warren Davis.

The evidence in this case is purely and solely circumstantial regarding the jury’s answers to Jury Question No. 1 which inquired: “Do you find from a preponderance of the evidence that D’Ann Riggs stole or diverted the Demerol of Warren Davis while he was at Gulf Health Care Center and that such conduct, if any you have found, proximately caused any injury to Warren Davis?” The jury answered, “10 yes 2 no.”

Jury Question No. 4, which was premised upon an affirmative answer to Jury Question No. 1, inquired as follows: “Do you find from a preponderance of the evidence that Gulf Health Care Center was negligent in supervising D’Ann Riggs and that such negligence, if any, was the proximate cause of an injury to Warren Davis?” The jury answered “10 yes.”

We feel it necessary to state at the outset that the lone cause of action made the basis for the instant appeal is negligent failure to supervise a particular employee of Gulf Health Care, D’Ann Riggs. The elements of a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the breach of duty. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990) (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987)). Since Gulf Health Care’s first'point of error complains of no evidence to support a finding of injury to Warren Davis, a “damages” issue, we will assume without deciding that Gulf Health Care was satisfied that Davis’ Estate met its burden of proof regarding the elements of duty, and breach of that duty. Gulf Health Care’s second point of error complains of no evidence to support the finding of stolen or diverted Demerol by D’Ann Riggs resulting in an injury to Warren Davis. We see this second point of error as merely a subpart of point of error one’s general complaint of no evidence to support an injury to Mr. Davis. Therefore, we will focus our inquiry on the issue of whether there was legally sufficient evidence in the record before us to prove damages to Mr. Davis proximately caused by the presumed breach of duty to Mr. Davis.

The components of proximate cause are cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). These elements cannot be established by mere conjecture, guess, or speculation. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980); Farley v. MM Cattle Co., 529 S.W.2d 751, 755 (Tex.1975). 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. Prudential Ins. Co. of America v. Jefferson Assoc., Ltd., 896 S.W.2d 156, 161 (Tex.1995). See also Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458-59 (Tex.1992). Cause in fact is not shown if the defendant’s negligence did no more than furnish a condition which made the injury possible. See Bell v. Campbell, 434 S.W.2d 117, 120 (Tex.1968). As stated in Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (Tex.1939), “The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of resulting injuries ... [and] justify the conclusion that such injury was the natural and probable result thereof.” “In other words, even if the injury would not have happened but for the defendant’s conduct, the connection between the defendant and the plaintiffs injuries simply may be too attenuated to constitute legal cause.” Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995).

Foreseeability, the other aspect of proximate cause, requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549-50 (Tex.1985). The danger of injury is foreseeable if its “general character ... might reasonably have been anticipated.” Id. at 551 (quoting Carey, 124 S.W.2d at 849). The question of foreseeability, and proximate cause generally, involves a practical inquiry based on “common experience applied to human conduct.” City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987) (quoting Cook Consultants, Inc. v. Larson, 700 S.W.2d 231, 236 (Tex.App.—Dallas 1985, writ ref'd n.r.e.)). It asks whether the injury “might reasonably have been contemplated” as a result of the defendant’s conduct. McClure, 608 S.W.2d at 903. Foreseeability requires more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defendant’s conduct brings about the injury. See Restatement (Second) of Torts § 435(2) (1965).

In the instant case, the appellees’ cause of action appears to rest on the contention that Gulf Health Care failed to supervise employee D’Ann Riggs resulting in unnecessary or increased pain or suffering to Mr. Davis. It is apparently uncontested that the operative time-frame for Gulf Health Care’s liability was during the sixteen-day period from May 21, 1994, up until the day Mr. Davis died, June 6,1994. Specifically, appel-lees’ theory was that Ms. Riggs, the director of nurses at the nursing home, either stole or otherwise diverted Mr. Davis’ prescribed Demerol from him, causing Mr. Davis unnecessary or increased pain or suffering. It is uncontested that the evidence presented in support of this fact was entirely circumstantial.

The standard of review regarding a “no evidence” issue has been often repeated by the Texas Supreme Court in a variety of cases. We quote from one of the latest:

When reviewing a legal sufficiency point, this court “must consider only the evidence and inferences tending to support the trial court’s finding,, disregarding all contrary evidence and inferences.” Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). However, meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support a finding. See ... Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993) (holding that a factual finding must be supported by more than mere surmise or suspicion).

Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998) (citations omitted).

In the instant case, we find that the record contains merely “conjecture, guess, or speculation” with regard to the elements of cause in fact and foreseeability. Even accepting as proven the first two elements of negligence (a duty, and breach of that duty) regarding Gulf Health Care’s supervision of Ms. Riggs in her capacity as director of nurses at the nursing home, the evidence rises to only speculation at best that whenever Mr. Davis complained of pain that said pain “was the natural and probable result” of Ms. Riggs being negligently supervised. While there was testimony that Ms. Riggs’ nursing practices ran the spectrum from unorthodox to downright sloppy, there was simply no evidence that Ms. Riggs ever engaged in conduct that placed Mr. Davis in a position of not being able to receive his Demerol as prescribed or when needed. The fact that some ampules were broken or possibly missing is of no consequence so long as there were enough remaining to provide Mr. Davis with an injection when needed. There was absolutely no testimony, or even inferences that could be drawn from testimony, to the effect that at any time during the sixteen-day period in question, Mr. Davis’ supply of Demerol was completely exhausted when he needed it because of appellant’s negligent supervision of Ms. Riggs. Cause in fact was simply not proven.

Proof of foreseeability was also lacking. It is undisputed that Ms. Riggs’ own supervisor, Shirley Harris, testified that she was not aware of Ms. Riggs’ “opiate dependency” pri- or to Mr. Davis’ death. This was consistent with the testimony of other employees and co-workers of Ms. Riggs at the nursing home. Again, even with sufficient proof of a breach of the duty owed Mr. Davis by Gulf Health Care to the extent that said breach permitted Ms. Riggs to steal or divert some of Mr. Davis’ Demerol, we find appellees failed to prove that the danger of an injury, i.e., manifestations of increased, or unnecessary pain or suffering, to Mr. Davis could have been reasonably anticipated by Gulf Health Care. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d at 478. We reiterate there was no evidence presented that the supply of Mr. Davis’ Demerol was ever exhausted to the extent he was unable to receive an injection of the prescribed dosage at the appropriate time. Appellees’ focus on the “unusual” conduct of Ms. Riggs at the nursing home during the sixteen days in question simply ignores the need to provide the required evidentiary nexus between said conduct and how Gulf Health Care might have reasonably anticipated an injury to Mr. Davis from said conduct. While we are to disregard all evidence and inferences contrary to the verdict, it simply cannot be ignored that Ms. Riggs was herself a “supervisor” of nurses and, therefore, had every right to be present at the nursing home at any hour of the day or night as the need arose. We are not ignoring the fact that there was testimony that Mr. Davis complained of pain to relatives as well as to nursing home employees. Indeed, Mr. Davis’ son, Dan Davis, indicated that his father related that he (Donald Davis) “was not getting his pain medicine.” Placing this testimony along side of the evidence of Ms. Riggs’ “sloppy,” “unprofessional” charting of Mr. Davis’ medications, of the overattentiveness by Ms. Riggs to Mr. Davis, and of her appearance at the nursing home at “unusual” hours, even in the light most favorable to the verdict, still does not rise to the level of evidentiary probativeness that was necessary to place Gulf Health Care on notice so it “might reasonably have been contemplated” that Mr. Davis was in danger of unnecessary or increased pain or suffering.

All this is to say that Gulf Health Care has succeeded in its appellate burden as we find, after reviewing only the evidence and inferences in support of the verdict, the record before us reflects legally insufficient evidence to sustain the finding that Gulf Health Care negligently failed to supervise Ms. Riggs. Appellant’s points of error are sustained. The trial court’s judgment is reversed, and we render judgment that appellees take nothing.

REVERSED AND RENDERED.

1 . Interestingly, the jury decided D’Ann Riggs was not in the course and scope of her employment at the time the jury determined she stole or diverted Demerol. However, "[Ijiabilily for negligent supervision is not dependent upon a finding that the employee was acting in the course and scope of his employment when the tortious act occurred.” Mackey v. U.P. Enterprises, Inc., 935 S.W.2d 446, 459 (Tex.App.—Tyler 1996, no writ).