Crow v. Burnett
| Decision Date | 20 August 1997 |
| Docket Number | No. 10-96-113-CV,10-96-113-CV |
| Citation | 951 S.W.2d 894 |
| Parties | Randall CROW, Appellant, v. Gilbert BURNETT and Greg William Burnett, Appellees. |
| Court | Texas Court of Appeals |
Emil Lippe, Jr., Law Offices of Lippe & Ass'n, Dallas, for appellant.
Charles M. Bradshaw, Dallas, for appellee.
Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.
Appellant Randall Crow filed suit against Appellee Greg William Burnett for damages allegedly sustained by Crow as a result of a collision between their cars. 1 Based on the questions submitted in the court's charge, the jury found that:
Burnett's negligence proximately caused the collision;
one hundred percent of the negligence which caused the collision is attributable to Burnett;
Crow sustained no damages as a result of the collision; and
Burnett was not grossly negligent.
In accordance with the verdict, the court rendered judgment that Crow take nothing from Burnett and that court costs be taxed against Crow.
Crow brings this appeal asserting in six points that neither legally nor factually sufficient evidence exists to support the jury's findings that Crow sustained no damages and that Burnett was not grossly negligent. Crow's seventh point claims that the court erred in taxing court costs against him. We will affirm the judgment.
The facts surrounding the collision are not disputed. Crow was driving his automobile northbound on Interstate Highway 45 when he was overtaken by Burnett. Due to inattention and excessive speed on Burnett's part, he came upon Crow's car so suddenly that he had to take evasive action to avoid colliding with the rear end of Crow's car. Because another vehicle occupied the adjoining northbound lane, Burnett swerved onto the improved shoulder to avoid a collision.
Burnett immediately noticed the improved shoulder was about to end because of a bridge. To avoid colliding with the bridge, Burnett swerved back into Crow's lane. As a result, the passenger side of Crow's car scraped against the left rear corner of Burnett's. Crow alleges that as a result of the collision he suffered injuries to his back and his left knee.
The record reflects that Crow had previously suffered injuries to his lower back and to his left knee. Ten years before the collision, Crow had two arthroscopic surgeries performed on his left knee. Four years later, Crow injured his lower back. The injury required several days of hospitalization. Crow's physician discharged him with a diagnosis of an L5-S1 disc protrusion.
Eight months prior to the collision, Crow suffered a fracture to his left tibia which badly shattered the bone. Dr. Kurt Rathjen performed surgery to repair the fracture. Rathjen installed a six-inch metal plate and screws to hold the bone together as it healed. He advised Crow that further surgeries might be required to remove additional bone fragments. Subsequent x-rays revealed the presence of a bone fragment in the knee. As late as five months before the collision, Rathjen and Crow discussed the possibility of surgery to remove the fragment. At the time of the collision, Crow continued to wear an elastic brace on his left knee as a part of his therapy.
According to the evidence, the damage to Crow's car was minor. Crow testified that the collision caused He recalled that as a result of the collision his left knee hit the window handle and the dash. Simultaneously, he swerved to the right to avoid hitting the car in the left lane of the interstate and "pulled [his] back."
Crow coasted about 150 feet to the end of the bridge before pulling over to the shoulder after the collision. He did not notice any injury at that time. Crow testified that he began to experience pain in his left knee and lower back later that evening. He described his symptoms as "some sharp pains" in the lower back, "numbness" in his legs, and his "knee was hurting quite a bit."
Crow testified that as a result of the collision his lower back has become "real tender" he experiences "tingling down [his legs]" if he sits or stands long; and his calf muscles contract and his toes curl. He described these symptoms as "very painful." Crow stated that as a result of the collision his knee has started "locking up[ ][a]nd then[ ] giving away mostly" as he walks.
At his mother's instance, he saw Dr. Kerry Donegan four days later. Donegan's records reflect that Crow initially complained of pain in the lower back and "down the posterior aspect of his thighs and calves." He informed Donegan that he began feeling the back pain about two hours after the collision and did not experience any leg pains until the next day. He denied "any numbness or tingling." Donegan assessed his injury as "[a]cute low back strain." X-rays revealed "perhaps some slight decrease in the L5-S1 disc space."
Ten days later, Crow returned for a follow-up examination. He complained on this visit of continued back pain and pain in his left knee. He informed the doctor also about the prior fracture. Donegan ordered x-rays which confirmed the fracture and revealed a probable tear of the medial meniscus and an apparent defect of the medial femoral condyle. A month later, Crow returned complaining only of lower back pain. Donegan's assessment again noted the observations made during the previous examination.
Crow had a follow-up examination four weeks later. He complained of continued back pain and "very occasional" leg pain. X-rays continued to depict "perhaps some slight decrease in the disc space at L5-S1." They also revealed "a loose body" in the left knee and osteophytes on Crow's medial and lateral femoral condyles. Donegan's assessment of back strain continued and he assessed the knee injury to be "post ACL and medial collateral ligament tear with loose body and post-traumatic arthritis."
Crow returned nine days later complaining of his lower back pain. Crow had two monthly follow-up examinations with Donegan after this. He complained of the lower back pain during these visits. Donegan diagnosed Crow to have a L5-S1 degenerative disc.
Crow changed physicians one month later. On his first visit to the new doctor, Dr. Ronnie Shade, Crow complained primarily of back pain, but he also stated that he had experienced "pain, popping and [the] sensation of the left knee 'giving way.' " Dr. Shade testified that Crow had a slight limp during this initial examination. The doctor also detected "tenderness and spasms in the lumbar region" and noted a limited range of motion of the back.
Shade confirmed the back strain diagnosis previously made by Donegan. He testified that his assessment of Crow included radiculitis of the lower back. He noted instability in Crow's left knee and a "suspected" meniscal tear in the left knee. Crow returned monthly to see Shade for follow-up care. Over the next six months, he continued to complain of lower back pain and of "persistent left knee pain, popping, and giving away."
One year after the collision, Shade operated on Crow's knee. The surgery revealed damage to the knee cartilage. Shade removed the metal plate and screws and some torn fragments of the anterior crucate ligament. The doctor also attempted to relieve some of the pressure Crow was experiencing from the damaged cartilage.
One and one-half years after this operation, Shade performed a second surgery to repair ligament damage suffered by Crow when he hyperextended his left knee. Crow testified that on this occasion, he was walking normally and his knee simply "[gave] out." In Crow's words, "It lock[ed] all the way out." On cross-examination, he explained that on this occasion he suffered this later injury as a result of planting his foot and twisting the knee.
Crow's medical bills totaled in excess of $40,000. Shade testified that in his opinion based on reasonable medical probability, the collision caused Crow's back and knee injuries. He testified that Crow continues to suffer "persistent back pain and ... pain and discomfort in the left knee and also with [sic] giving way of the left knee." In Shade's opinion, the collision exacerbated Crow's preexisting conditions.
On cross-examination, Shade explained that his opinion of causation is based solely on the information Crow provided him. The doctor conceded that Crow could possibly have experienced the knee problems he suffered as a result of the prior fracture and regardless of whether he had been in an accident. He agreed that removal of hardware like the metal plate implanted after Crow's fracture is generally recommended to avoid future pain and problems. Shade testified that the conditions he addressed in his first operation on Crow's knee could possibly have existed prior to the collision. He agreed that the damaged cartilage was not necessarily traumatic in origin.
Shade testified that low back pain is a common complaint and Crow's back pain was not necessarily a result of the accident. Burnett's counsel showed the doctor an MRI scan of Crow's back made a little more than two months after the collision. After reviewing the image, Shade explained that the MRI revealed degenerative disc disease in Crow's lumbar spine at L5-S1. The doctor stated that this type of condition usually does not manifest itself in such a short period of time. As a result, Shade agreed that it is "probably correct" that in all reasonable medical probability Crow's lower back condition antedated the collision.
Crow contends in his first point that the jury's finding of no damages is contrary to the great weight and preponderance of the evidence. His second point claims the evidence is insufficient to support this finding. He alleges in his third point that no evidence exists to support the finding.
When the party with the burden of proof appeals from an adverse finding, "the point of...
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