Greater Houston Transp. Co., Inc. v. Zrubeck

• Decision Date: 04 February 1993
• Docket Number: No. 13-91-426-CV,13-91-426-CV
• Parties: 3 NDLR P 262 GREATER HOUSTON TRANSPORTATION COMPANY, INC., Appellant, v. Ernest W. ZRUBECK, Appellee.
• Court: Texas Court of Appeals

Page 579

850 S.W.2d 579

3 NDLR P 262

GREATER HOUSTON TRANSPORTATION COMPANY, INC., Appellant, v. Ernest W. ZRUBECK, Appellee.

No. 13-91-426-CV.

Court of Appeals of Texas Corpus Christi.

Feb. 4, 1993.

Rehearing Overruled April 8, 1993.

J. Preston Wrotenbery, Hirsch, Glover, Robinson & Sheiness, Houston, for appellant.

Frank G. Harmon, III, Houston, Kathleen Hopkins Alsina, Crain, Caton & James, Houston, for appellee.

Before GILBERTO HINOJOSA, DORSEY and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

GILBERTO HINOJOSA, Justice.

Appellant, Greater Houston Transportation Company, complains by seven points of error of the trial court's rendition of judgment based on a jury verdict finding it grossly negligent. We affirm.

Greater Houston Transportation Company, a subsidiary of Yellow Cab Service Corporation, contracted with MetroLift to provide curb-to-curb transportation for the elderly, handicapped and mentally retarded. Mr. Zrubeck, appellee, sued Greater Houston for negligence and gross negligence, claiming that Greater Houston neither adequately trained nor impressed upon its drivers the importance of securing wheelchair clients to their wheelchairs with seat belts. On the court's motion, and without objection from the parties, the issues of gross negligence and the amount of exemplary damages were tried separately and submitted in a bifurcated charge. The jury found Greater Houston grossly negligent and awarded $175,000 in actual damages and $500,000 in exemplary damages.

Greater Houston appeals by seven points of error: the trial court erred in 1) failing to poll the jury upon request, 2) entering judgment because the same ten jurors did not concur on all the answers in the verdict, 3) entering judgment based on the jury's assessment of actual damages, 4) entering judgment because there is no evidence or insufficient evidence of Greater Houston's negligence, 5) entering judgment because there is no evidence or insufficient evidence of Greater Houston's gross negligence, 6) entering judgment on gross negligence and exemplary damages because there is no evidence or insufficient evidence that Greater Houston's driver and employee were grossly negligent, and 7) the award of exemplary damages is excessive. We overrule all points of error.

At the time of the incident in question, Ernest Zrubeck was a 53 year-old quadriplegic. He had suffered a broken neck as a result of an auto accident when he was 17 years of age, which left him with minimal feeling below the fifth vertebrae. Mr. Zrubeck had some feeling in both arms, but could only use his shoulders while sitting up. When he was younger, Mr. Zrubeck was independent and even drove his own automobile. His condition steadily declined until he had to move into a nursing home twelve years before the MetroLift incident.

In the nursing home, Mr. Zrubeck was completely dependent. When in a prone position, orderlies had to turn him over every two hours to avoid bed sores and other complications. However, sitting up, he could wheel himself around and enjoyed sitting in the sun. On almost all excursions from the nursing home, he would ride in a family automobile, with his wheelchair folded in the trunk. Medicare paid for Mr. Zrubeck's nursing home expenses, leaving him approximately $25 per month spending money. He had no outside sources of income.

Mr. Zrubeck had the same manual wheelchair for twenty years prior to this incident. It had a "lap tray" for reading, writing and eating. The "lap tray" was not a device intended for safety purposes. Basically, it was a flat tray that could slide off the arms of his wheelchair. Mr. Zrubeck demonstrated at trial that he could take the tray off unassisted. The tray did not have a lock that would prevent it from coming off accidentally.

On September 7, 1986, Miss Loretta Lee, a Greater Houston driver, arrived at a nursing home to transport Mr. Zrubeck to his sister's house. Using a motorized lift, she helped Mr. Zrubeck into the MetroLift van and properly secured his wheelchair to the railway. She testified that, when she removed a seat belt from her bag, Mr. Zrubeck said that he did not need it. He said that he always rode without one and that his "securement was good." Miss Lee stated that Mr. Zrubeck had a "biball"--a piece of wood around his body to hold him up--and that she checked it and was satisfied that it was snug. During trial, it was established that she was referring to Mr. Zrubeck's "lap tray."

At trial, Mr. Zrubeck denied that a conversation with Miss Lee about whether to wear a seat belt ever occurred. In fact, Mr. Zrubeck testified that, of the three or four times he used MetroLift, he had never been offered a seat belt.

En route to their destination, Miss Lee was forced to stop suddenly when a car in front of the van stopped to make a U-turn. She testified that the speed limit was 35 m.p.h., that she was following at a distance of approximately two car-lengths and that it was misting. As soon as she stopped, she saw Mr. Zrubeck slide feet-first out of his wheelchair until the lower half of his body was on the floor of the MetroLift van. The wheelchair never moved. Mr. Zrubeck testified that he called to Miss Lee to tell her he had fallen.

Miss Lee turned on the emergency flashers, put the van in park and briefly left it to get help. She first testified that she tried to lift Mr. Zrubeck but could not. Subsequently, she testified that she did not try to lift him because she was afraid she would hurt him, and that a police officer helped her return him to his wheelchair.

Miss Lee secured Mr. Zrubeck with a seat belt. She repeatedly asked him if he wanted to go to the hospital. It is undisputed that Mr. Zrubeck repeatedly declined these offers. He said that he was "fine" and that he just wanted to go to his sister's house. After dropping off Mr. Zrubeck, Miss Lee immediately reported the incident to Greater Houston.

Mr. Zrubeck testified that at the time of the incident he felt no pain. But, at his sister's house, he began to "feel bad." Consequently, his sister called MetroLift, and he was returned to the nursing home.

Two or three days later, Mr. Zrubeck began having a hard time wheeling his chair. Five days after the incident, the nursing home called his doctor. Mr. Zrubeck was extremely pale, and his legs were deformed and grossly swollen. His doctor sent him to the hospital for x-rays which revealed that he had broken both of his legs. His right leg had a fractured femur, tibia and fibia. His left leg had a fractured tibia and fibia. After forty years of paralysis, the bones in Mr. Zrubeck's legs were very brittle.

Mr. Zrubeck was in the hospital for six days while his doctors determined the best way to treat his fractures. The total cost of his stay at the hospital was $6,200. During that time, he received a blood transfusion because a considerable amount of blood had drained into the wound area. Mr. Zrubeck's doctor testified that he had very few veins in his arms and that he could feel the pain of the needles probing for a vein.

After leaving the hospital, Mr. Zrubeck spent approximately two weeks in physical therapy. He was confined to his bed for three to four months. During that time, he was completely unable to perform even the simplest tasks. He became extremely depressed. His doctor testified that Mr. Zrubeck did not return to his pre-accident mobility for "quite a while."

Mr. Zrubeck's doctor testified that, as a result of his paralysis, his legs are not expected to heal. X-rays taken shortly before trial show that his bones continue to have deformities. To avoid further displacement, extra care will be required when moving him. The likelihood is much greater that the orderlies who turn him over every two hours will injure him. As a result, Mr. Zrubeck can no longer ride in family vehicles, but must spend a substantial portion of his meager allowance on MetroLift transportation. Because he has weakened considerably, he now has an electric wheelchair.

Greater Houston trained its drivers with regard to proper handling of MetroLift vans and customers. First, the drivers studied safe driving skills for eight hours. Second, they received eight hours of instruction for passenger assistance and sensitivity training. This portion of instruction emphasized behavior such as, "don't ever embarrass a passenger," "offer assistance, but do not insist," and "give passengers the benefit of the doubt." Third, they participated in two eight-hour days of on-the-road training. And, fourth, they had two-to-four hours of company orientation, which emphasized company policies. After completion of training, but prior to issuance of an identification badge, trainees had to sign for the receipt of a safety handbook issued by MetroLift.

The adoption of the safety guidelines in this MetroLift handbook was a condition of Greater Houston's contract. The thirty-six-page handbook repeatedly and clearly stated in underlined and capital letters that all wheelchair passengers had to be secured to their wheelchairs with snug-fitting seat belts to prevent the passengers from sustaining injuries. ¹ Miss Lee testified that attaching a seat belt only required approximately twenty seconds.

The MetroLift handbook unequivocally mandated that a driver was to call a supervisor if a passenger refused to wear a seat belt. ² However, Miss Lee's supervisor at the time of his deposition could not recall this specific policy. Although he testified that he had copies of the handbook in his office, he stated that the policy provided that if there was a "problem," then the driver was to call the dispatcher.

Greater Houston did not deny that their policy was "no belt, no ride." In fact, Greater Houston had developed their own seat belt design.

Nonetheless, Miss Lee testified that many MetroLift drivers, including herself, regularly permitted wheelchair passengers to ride without seat belts. The justification she gave was that...