TEXAS a & M UNIVERSITY v. Bishop

105 S.W.3d 646, 2002 WL 1962958
CourtCourt of Appeals of Texas
DecidedMay 15, 2003
Docket14-97-00153-CV
StatusPublished
Cited by9 cases

This text of 105 S.W.3d 646 (TEXAS a & M UNIVERSITY v. Bishop) 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
TEXAS a & M UNIVERSITY v. Bishop, 105 S.W.3d 646, 2002 WL 1962958 (Tex. Ct. App. 2003).

Opinions

OPINION ON REMAND

PAUL C. MURPHY, Senior Chief Justice (Assigned).

This appeal arises from a suit for personal injuries suffered by Paul A. Bishop while portraying “Vlad Dracula” in a play performed by the Texas A & M University at Galveston Drama Club. Texas A & M University (TAMU) challenges the judgment in favor of Bishop in eleven points of error. In our original opinion, we found legally insufficient evidence to support the jury’s findings that Michael and Diane Wonio, Dr. Stephen Curley, and Dr. Melanie Lesko were employees of TAMU on the occasion in question. Therefore, we reversed and rendered judgment in favor of TAMU. The supreme court reversed, holding that legally sufficient evidence supported the jury’s finding that Drs. Cur-ley and Lesko were employees at the time of the occurrence. Bishop v. Texas A & M Univ., 35 S.W.3d 605, 607 (Tex.2000). The case was remanded to our court for review of remaining issues. We affirm.

Facts

In the Spring of 1994, the Drama Club of Texas A & M University at Galveston decided to perform the play, “Dracula” and a member of the club telephoned Michael Wonio, a local Galveston actor and director, who had directed previous Drama Club plays. Wonio agreed to direct the play. His wife, Diane Wonio, assisted with props and choreography of fight scenes. In one of the final scenes of the play, the character of Jonathan Harker impales Vlad Dracula with a knife. Diane Wonio prepared a stab pad for Bishop, as Vlad Dracula, to wear during this scene because the Wonios determined that the scene required use of a real knife. The stab pad was strapped to Bishop’s chest with a target visible. Dennis Rittenhouse, another student, played the part of Jonathan Hark-er. On the night of the incident in question, Rittenhouse swung the knife, missed the stab pad, and stabbed Bishop in the chest.

Bishop was taken by ambulance to a hospital emergency room, where it was determined that the knife had penetrated Bishop’s lung, causing a pneumothorax, or collapsed lung. Bishop remained in the hospital for eight days. Bishop testified that his grade point average declined and he continues to experience weakness, insomnia, and nightmares.

Bishop filed this negligence suit against TAMU, Drama Club faculty advisors, Drs. Stephen Curley and Melanie Lesko, and the Wonios alleging negligence. The Won-ios settled with Bishop before trial. The case was then tried to a jury only on claims of negligence against the Wonios and Drs. Curley and Lesko as employees of TAMU. The jury found the Wonios and the Drama Club faculty advisors acted as employees on the night in question and were negligent in the use of tangible personal property. The jury awarded Bishop $350,000 in damages. After an off-set for settlement credit, the trial court rendered judgment for $250,000.

Sufficiency of the Evidence of Employee Status

In its first two points of error, TAMU asserts the trial court erred in overruling its motion for judgment notwithstanding the verdict and its motion for new trial because there was legally or factually insufficient evidence to support [652]*652the jury’s answer to question number one, regarding which individuals were TAMU’s employees. Question one asked the jury if Mike and Diane Wonio, Stephen Curley, and Melanie Lesko, were acting as employees of the university on the occasion in question. In its opinion, the supreme court addressed the issue whether the evidence was legally sufficient to support the jury’s findings that Drs. Curley and Lesko were TAMU employees at the time of Bishop’s injury. Bishop, 35 S.W.3d at 607. The supreme court found that there was legally sufficient evidence and thus, held that TAMU could be held hable for the employees’ negligence.1 Id. Thus, we first address whether the evidence is factuahy sufficient to support the jury finding with respect to Drs. Curley and Lesko.

1. Drs. Curley and Lesko

In deciding factual sufficiency questions, the appellate court must review ah of the evidence. Lofton v. Tex. Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). The court may set aside the finding only if the evidence is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Further, when reversing a trial court’s judgment after concluding the supporting evidence is insufficient, the court of appeals must detail the relevant evidence introduced at trial and clearly state why the jury’s finding is factually insufficient. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). The court should state in what regard the contrary evidence greatly outweighs the evidence supporting the jury’s verdict. Id.; Aim v. Aluminum Co. of America, 717 S.W.2d 588 (Tex.1986).

The instructions for jury question one stated that an employee is not a volunteer, but is a person in the paid service of the university. The instruction further stated an employee is not an independent contractor or a person who performs tasks, the details of which the university does not have the legal right to control.

In Texas, a governmental unit is immune from tort liability unless the Legislature has waived immunity. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998); Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994). A state agency such as TAMU shares this governmental immunity. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). The Texas Tort Claims Act provides for a limited waiver of governmental immunity under specified circumstances. Id.; Tex. Crv. PRAC. & Rem.Code Ann. § 101.021 (Vernon 1997). Under the act, a governmental unit may be held liable for personal injury caused by a condition or use of tangible personal property if the governmental unit would, were it a private person, be held hable under Texas law. Id. at (2). A governmental entity can be held liable for personal injuries only through the acts of its employees. Dumas v. Muenster Hosp. Dist., 859 S.W.2d 648, 650 (Tex.App.— Fort Worth 1993, no writ). The Act defines “employee” as a “person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a [653]*653person who performs tasks the details of which the governmental unit does not have the legal right to control.” Tex. Civ. PRAC. & Rem.Code Ann. § 101.001(2) (Vernon Supp.2002).

The evidence shows that Dr. Cur-ley is employed by TAMU as a professor of English and head of the Department of General Academics. Dr. Lesko teaches organic chemistry and is Assistant Department Head of the Degreed Science Department. Thus, there was evidence Drs. Curley and Lesko were paid employees of the university for their academic positions. Drs. Curley and Lesko also acted as faculty advisors to the Drama Club. A number of witnesses testified that faculty advisors were volunteers and were not paid for this service.

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