Scott's Marina at Lake Grapevine Ltd. v. Brown

365 S.W.3d 146, 2012 WL 177970
CourtCourt of Appeals of Texas
DecidedJanuary 28, 2012
DocketNo. 07-10-00277-CV
StatusPublished
Cited by17 cases

This text of 365 S.W.3d 146 (Scott's Marina at Lake Grapevine Ltd. v. Brown) 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
Scott's Marina at Lake Grapevine Ltd. v. Brown, 365 S.W.3d 146, 2012 WL 177970 (Tex. Ct. App. 2012).

Opinions

OPINION

MACKEY K. HANCOCK, Justice.

Appellants, Scott’s Marina at Lake Grapevine, Ltd. d/b/a Silverlake Marina (Scott’s Marina), Just for Fun of North Texas, Inc. (JFF), and Silver Lake Marina Store, Inc. (the Store), appeal a judgment entered in favor of appellee, Allen Johnathan Brown, that awarded Brown $676,800 for past and future actual damages, $10,667.80 for court costs, and post-judgment interest at a rate of five percent per annum. We affirm.

[150]*150Background

Because the issues presented by appellants primarily challenge the sufficiency of the evidence, we will limit the background to a general overview of the factual background and procedural history of the case. We will discuss the evidence more fully in the analysis of each of appellants’ issues below.

Brown was employed to work weekends at the Store during the summer of 2005. The Store was owned by Scott’s Marina, but had been leased to JFF. Brown was hired by JFF and was paid by JFF.

On June 11, 2005, Brown was working the cash register at the Store when he heard a “whoosh-type” noise and was immediately struck by a “godawful smell.” A substance began to backup and overflow out of the hub drain1 of a Pepsi soda fountain machine in the Store. The Store was initially evacuated before Brown was ordered to clean up the backflowed substance. Brown performed the cleanup with the use of a mop and bucket. No additional protective wear was provided to Brown while he cleaned up the backflow. Additional spills occurred over the remainder of the weekend of the 11th. It took Brown about ten to fifteen minutes to clean the spillages each time they occurred.

The following weekend, the hub drain again backflowed on multiple occasions. On these instances, two other Store employees assisted Brown in clean up of the spillages. Plumbers were called to the Store on June 20, and apparently installed backflow valves to the hub drain line. Regardless, no further backflows occurred after June 19.

During the second weekend, Brown developed a cough and a sore throat. He indicated that the glands in his neck started to swell. Nonetheless, Brown attempted to work through his developing illness. However, due to severe vomiting and diarrhea, Brown eventually had to seek medical attention on July 5. Brown’s illness worsened from July 5 to July 11, when Brown had his mother take him to the emergency room because he was vomiting uncontrollably. Brown was hospitalized and diagnosed with enteroviral meningitis and Lemierre’s Syndrome. To prevent the spread of these conditions, doctors tied off one of Brown’s jugular veins. Brown spent twelve days in the hospital due to this illness. After his release from the hospital, Brown continued to have medical and emotional problems that restricted his everyday life.

Brown filed suit against the appellants contending that the spillage that he was required to clean up in the Store on the weekends of June 11th and 18th of 2005 was sewage containing human feces, and that this exposure to human feces caused Brown’s acute and continuing illnesses. At the trial, Brown offered the expert testimony of Itzhak Brook on the issue of causation. Brook, a leading expert in the field of anaerobic infectious disease, opined that, in reasonable medical probability, Brown’s exposure to sewage containing human feces at the Store was the proximate cause of his enteroviral meningitis and Lemierre’s Syndrome. At the close of evidence, the case was submitted to the jury who returned a verdict in favor of Brown. Specifically, the jury found that appellants were negligent; that Scott’s Marina was 60 percent responsible, JFF was 20 percent responsible, and the Store was 20 percent responsible; and awarded Brown damages of $250,000 for past physical pain and mental anguish, $75,000 for future [151]*151physical pain and mental anguish, $89,000 for past lost earning capacity, $102,300 for future lost earning capacity, $60,000 for past medical expenses, and $100,000 for future medical expenses. Appellants filed a motion for entry of judgment notwithstanding the verdict, which was denied by the trial court. The trial court entered judgment on the jury’s verdict, and appellants appealed this judgment.

Scott’s Marina filed a brief on its own behalf and JFF and the Store filed a joint brief on their behalf. The issues presented by Scott’s Marina are (1) the trial court abused its discretion in admitting Brook’s unreliable testimony, (2) the evidence was insufficient to establish that Brown was exposed to sewage at the Store, and (3) the jury’s award of actual damages cannot be sustained. The issues presented by JFF and the Store are (1) the trial court erred in admitting Brook’s testimony over appellants’ objection, (2) the evidence is insufficient to support the jury’s implied finding that Brown was exposed to human waste, and (3) the evidence is insufficient to support the jury’s implied finding that appellants should have foreseen the risk that Brown could be exposed to human waste. We will address appellants’ issues in a slightly different order starting with the issue of whether the evidence was sufficient to establish that Brown was exposed to human waste.

Sufficiency of the Evidence — Exposure to Human Feces

By both of their second issues, appellants contend that the evidence was insufficient to support the jury’s implied finding that Brown was exposed to sewage containing human feces by cleaning up the backfiowed spillage in the Store on the weekends of June 11 and 18 of 2005. The significance of this implied finding is that Brook’s expert causation testimony assumes that Brown was exposed to human feces containing enterovirus, and that this exposure led to Brown’s subsequent medical problems. Additionally, JFF and the Store contend, by their third issue, that the evidence was insufficient to support the foreseeability of human feces backflow-ing into the Store.

Standard of Review

When a party challenges the legal sufficiency of the evidence supporting a jury finding, we consider the evidence in the light most favorable to the finding and indulge every reasonable inference that supports it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We credit favorable evidence if a reasonable jury could and disregard contrary evidence unless a reasonable jury could not. Id. at 827. If the evidence would permit reasonable and fair-minded people to reach the finding under review, the legal sufficiency challenge fails. Id.

When a party challenges the factual sufficiency of the evidence, we consider all of the evidence and will set aside the finding only if the evidence supporting the finding is so weak or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In conducting our review, we are mindful that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819; Hinkle v. Hinkle, 223 S.W.3d 773, 782 (Tex.App.-Dallas 2007, no pet.).

Analysis

Appellants contend that the overwhelming weight of the evidence proves that the configuration of the plumbing was such that it would not have been possible for wastewater or sewage containing human waste to have backfiowed into the Store on the occasions in issue. Due to

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365 S.W.3d 146, 2012 WL 177970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scotts-marina-at-lake-grapevine-ltd-v-brown-texapp-2012.