Allred v. Freestone Cnty. Fair Ass'n
| Decision Date | 18 April 2022 |
| Docket Number | 07-20-00168-CV |
| Court | Texas Court of Appeals |
| Parties | VICKI ALLRED AND CHARLES ALLRED, APPELLANTS v. FREESTONE COUNTY FAIR ASSOCIATION, INC., JASON MURRAY D/B/A J&J RODEO COMPANY, AND JIMMY ADAMS, APPELLEES |
On Appeal from the 146th District Court Bell County, Texas Trial Court No. 307, 283-B; Honorable Jack Jones, Presiding
Before QUINN, CJ., and PIRTLE and PARKER, JJ.
Appellant Vicki Allred, a barrel racer, was seriously injured when she was struck by a rodeo arena gate while participating in a barrel race. She and her husband, Appellant, Charles Allred sued multiple defendants for various causes of action. After several procedural maneuvers, many of the defendants were eliminated from the suit.
Directed verdicts were granted in favor Appellees, Freestone County Fair Association (FCFA) and Jason Murray d/b/a J&J Rodeo Company (Murray) on the Allreds' claims of negligence, negligent undertaking, and joint enterprise. Without specifying individual claims, the trial court also granted a directed verdict in favor of Appellee, Jimmy Adams a rodeo judge. The remaining cause of action against FCFA and Murray, a premises liability claim, was submitted to a jury. Based on the jury's verdict, the trial court entered a judgment that the Allreds take nothing by their suit.
The Allreds have appealed and present four issues challenging that judgment. By their first issue, they maintain the trial court committed reversible error in excluding testimony from Rafe Foreman, in limiting testimony from Jackie Jatzlau, and in allowing Ed Colston, an untimely disclosed witness, to testify. By issue two, they assert reversible error by the trial court in excluding evidence of wind data. In issue three, they contend the trial court erred in granting motions for directed verdicts because they presented sufficient evidence to defeat those motions.[1] By their final issue, the Allreds argue the trial court's inclusion of an unavoidable accident instruction in the jury charge resulted in reversible error because they proved Vicki's injuries were avoidable. By reply brief, they expound on the arguments in their original brief.
FCFA, Murray, and Adams filed a cross-appeal presenting three issues. They contend (1) the Allreds' claims were precluded by the Farm Animal Activity Act, [2] (2) they were non-suited as defendants when they were omitted from the First Amended Petition, and (3) venue is proper in Freestone County, Texas, and not Bell County, if the case is remanded.[3] We affirm.
To better comprehend the issues before this court, a description of the process for producing a rodeo, the rodeo arena, and the duties of rodeo personnel is necessary. Generally, an association or group seeking to promote a rodeo enters into a lease with another party for use of an arena for rodeo events. The association then negotiates with a rodeo producer or stock contractor to reach an agreement on the details of presenting a rodeo. The stock contractor is responsible for bringing in livestock and hiring personnel such as an arena director, who coordinates events, judges for particular events, and gate men for certain events.[4] For the barrel racing event, a pattern judge signals a racer to begin her run. Generally, a rodeo also requires recruitment of numerous volunteers to fill various positions.
During a rodeo, which generally takes place over several days, many barrel racers register to compete. Only a limited number are selected to race during the evening performances with the remaining races occurring during "the slack" event which occurs sans spectators.
Usually, a barrel race takes sixteen to eighteen seconds to complete. The race consists of the rider and her horse entering the arena via the "out gate"-the gate located at the alleyway at one end of the arena which barrel racers use for ingress and egress during the event.[5] The racers run in a cloverleaf pattern around three properly spaced barrels and then exit the arena at approximately thirty miles per hour.
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In the underlying case, FCFA entered into an agreement with the City of Fairfield in Freestone County, to promote a rodeo. FCFA then hired Murray to produce a rodeo on June 16 and 17, 2017. Murray in turn hired Adams as a pattern judge for the barrel racing event.
On the morning of June 17, 2017, Vicki and numerous other barrel racers competed in the slack event at the arena in Fairfield. Two witnesses testified that on the morning of the incident it was "a little breezy." The sound of the wind during Vicki's race can be heard on a video admitted into evidence. The out gate, which is hinged on one side and weighs approximately 600 pounds, had a sponsorship banner affixed to it but it did not have "wind cuts" in it.[6] Also, the latch on the out gate was rusted and was not tied back by a chain or rope.
The barrel racers who competed on the night before the slack and who competed just before Vicki that morning, did so without incident. Unfortunately, at the end of Vicki's performance, as she was exiting the arena on her horse at full gallop, the out gate began to blow shut, struck her, and hurled her to the ground. As a result, she was seriously injured and was transported by helicopter for medical treatment. The accident left her a tetraplegic.[7] The medical evidence showed she will require medical care for life.
Vicki and Charles sued numerous parties alleging multiple causes of action. After many defendants were eliminated from the suit, as relevant here, the claims of premises liability, negligence, negligent undertaking, and joint enterprise remained against FCFA, Murray, and Adams. At trial, the critical issue was whether the out gate presented a dangerous condition by not being tied back as a safety precaution. At the conclusion of the testimony of numerous witnesses, FCFA, Murray, and Adams, through their separate counsel, moved for directed verdicts. Although the trial court granted a directed verdict as to all parties as to negligence, negligent undertaking, and joint enterprise, as to FCFA and Murray, the issue of premises liability, with an instruction on unavoidable accident, was submitted to the jury. The jury returned a verdict finding Vicki's injuries were not proximately caused by the negligence of either FCFA or Murray. Based on that verdict, the trial court entered a take-nothing judgment from which the Allreds appeal.
By their first and second issues, the Allreds complain of the trial court's evidentiary rulings regarding the testimony of Rafe Foreman, Jackie Jatzlau, and Ed Colston. They also challenge the trial court's exclusion of wind data. They maintain that the erroneous exclusion of testimony from Foreman and Jatzlau and of wind data would have supported their claims of a dangerous condition. They also assert that the admission of Colston's testimony compounded the trial court's erroneous rulings.
A trial court's ruling related to the admission or exclusion of evidence is reviewed for abuse of discretion. Southwestern Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721 (Tex. 2016); U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012); Melton v. CU Members Mortg., 586 S.W.3d 26, 32 (Tex. App.-Austin 2019, pet. denied). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex. 2018); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The erroneous exclusion of evidence is harmful if it probably resulted in the rendition of an improper judgment. Tex.R.App.P. 44.1.
The Allreds designated Foreman as a retained expert. They allege the trial court should have allowed him to offer expert opinions on inspection and repair of arena gates alleyways, and whether the out gate that closed on Vicki presented an unreasonably dangerous condition. As relevant to the issues on appeal, Foreman's report offered the following opinions which he described as applying to "the duty of care applicable to all Defendants that sound in negligence and premises liability":
Foreman testified that he has over thirty years' experience as an attorney. Outside the jury's presence, he was questioned about his qualifications and the basis for the opinions in his expert report. He explained that he has experience with rodeos from his involvement in his daughters' participation in them for sixteen years. He has volunteered in various positions at numerous rodeos and describes his experience as "hands-on." For example, he has volunteered as a stock contractor, welder, contract negotiator, and announcer and has judged exhibitions and non-sanctioned rodeos. He does not, however, hold any licenses for professional rodeos.
Foreman further testified that in all his years involved with rodeos he had never seen a gate blown shut because it is supposed to be tied back. He had "experience[d] a gate blowing shut when we hung a banner on it . . . but we just made sure there was a rope or a chain." In his opinion, a rusted latch on the gate, a banner without wind cuts hanging on the gate, and a failure to provide a gate man created an unreasonably dangerous condition. Foreman acknowledged, however, that there are no rodeo regulations or standards for securing a gate.
The trial court ruled...
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