Diaz de Leon v. Furr's Supermarkets Inc.

• Decision Date: 19 July 2000
• Docket Number: No. 08-99-00004-CV,08-99-00004-CV
• Citation: 31 S.W.3d 297
• Parties: (Tex.App.-El Paso 2000) CASTULO DIAZ DE LEON, Appellant, v. FURR'S SUPERMARKETS, INC., Appellee.
• Court: Texas Court of Appeals

Page 297

31 S.W.3d 297 (Tex.App.-El Paso 2000)

CASTULO DIAZ DE LEON, Appellant, v. FURR'S SUPERMARKETS, INC., Appellee.

No. 08-99-00004-CV

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS, EL PASO.

July 19, 2000

Appeal from the 120th Judicial District Court of El Paso County, Texas (TC# 93-571) Before Panel No. 4 Barajas, C.J., Larsen, and McClure, JJ.

O P I N I O N

RICHARD BARAJAS, Chief Justice.

This is an appeal from a jury verdict entered in favor of Appellant in a negligence cause of action. The damages award was reduced by 50 percent to account for Appellant's proportionate responsibility. For reasons stated below, we reverse the judgment to the extent that it reduced Appellant's damages, we modify the judgment to reflect Appellant's full recovery, and we affirm the judgment as modified.

I. SUMMARY OF THE EVIDENCE

On November 2, 1992, Castulo Diaz De Leon ("De Leon"), an employee of Furr's Supermarkets, Inc., ("Furr's"), was summoned from the front office to investigate a shoplifting incident. As he was looking for the shoplifter, De Leon became injured when he slipped on water which had accumulated near one of the checkout stands. De Leon then brought suit against Furr's for negligence.¹ In its answer, Furr's raised the following defense:

Subject to the above pleadings, Defendant alleges that on the occasion in question, the Plaintiff failed to keep such a proper lookout for his own safety that a reasonable and prudent person, using ordinary care, would have kept under the same or similar circumstances, and that such failure was a proximate cause, or the sole proximate cause of this accident and any and all of the Plaintiff's alleged damages and/or injuries.

Over De Leon's objections, the trial court submitted a jury question which asked the jury to assign the percentage of negligence attributable to each party. After assigning 50 percent of the fault to Furr's and 50 percent to De Leon, the jury assessed De Leon's total damages at $35,500 thus enabling him to recover 50 percent of that figure or $17,750. De Leon brings this appeal.

II. DISCUSSION

In four issues on appeal, Appellant argues that the issue of contributory or comparative negligence should not have been presented to the jury because (1) Section 33.002 (c)(1) of the Civil Practice and Remedies Code specifically excludes cases brought for workers' compensation benefits from the proportionate responsibility statute; (2) Section 406.033 of the Texas Labor Code excludes contributory negligence issues in nonsubscriber negligence cases; and (3) the issue was not raised in Appellee's pleadings.

A. Preservation of Error

Before addressing the merits of these arguments, we will determine whether Appellant preserved error with respect to each of his contentions. Tex. R. Civ. P. 274 provides: "A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections." In State Dept. of Highways v. Payne, 838 S.W.2d 235, 241 (Tex. 1992), the Court stated: "There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling."

Here, the trial court submitted the following jury questions:

Question Number One: "Did the negligence, if any, of those named below proximately cause the occurrence in question?" The court then listed Castulo Diaz De Leon and Furr's Supermarket's Inc.

Question Number Two: "What percentage of the negligence that caused the occurrence do you find to be attributable to each of those found by you, in your answer to Question 1, to have been negligent?"

Question Number Three: "What sum of money, if paid now in cash, would fairly and reasonably compensate CASTULO DIAZ DE LEON for injuries, if any, that resulted from the occurrence in question? . . . Do not reduce the amounts, if any, in your answers because of the negligence, if any of CASTULO DIAZ DE LEON."

In response to these questions, Appellant's counsel made the following objections:

The question that the Court submitted as Question Number 1 puts in there, in the section for negligence, Castulo Diaz De Leon as a blank for that. It's well-established case law in Texas that in a nonsubscriber situation, as we have here, there should not and there never has been, in El Paso court, at least, a submission of Castulo Diaz De Leon being negligent in an employer situation. The only proper party to be submitted to ask the jury if they were negligent is Furr's Supermarkets, Incorporated. Castulo Diaz De Leon should not be submitted as a person to consider his negligence. There's no evidence in this case at all that he was negligent. There's insufficient evidence, certainly, of that. And we would object strenuously to that submission.

Plaintiff would further object to Question Number 2, which deals with the percentage of negligence between Castulo Diaz De Leon and Furr's Supermarkets, Incorporated. Plaintiff would object to this entire question, as there should not be any submission or any percentage attribution between the negligence of Castulo Diaz De Leon and Furr's Supermarkets, Incorporated, since the issue of negligence for Castulo Diaz De Leon should not be considered at all in this charge.

Plaintiff would further object to using the definition of negligence in respect to Mr. Castulo Diaz De Leon at all.

Plaintiff would also object to the portion of the Court's charge in Question Number 3, which reads as follows: Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Castulo Diaz De Leon. As previously stated, there should be no submission of the negligence of Castulo Diaz De Leon in this case, and we would object to that portion as a comment on the weight of the evidence; and there is no supporting case law to submit that type of information to the jury.

Appellant's objection was sufficient to satisfy the first element of Rule 274, as it properly identifies the objectionable matter (the inclusion of the proportionate responsibility language). With regard to the second element of Rule 274, Appellant asserted the following as grounds for his objections: (1) it is "well-established case law" that there should not be a submission of an employee's negligence; (2) there is insufficient evidence or no evidence of Appellant's negligence; (3) informing the jury to not decrease the damage award by the percentage of Appellant's negligence, if any, amounts to a comment on the weight of the evidence; and (4) there is no case law supporting the charge. Under these circumstances, we believe that Appellant preserved error.

B. Standard of Review

The standard of review for charge error is whether the trial court abused its discretion. Texas Dept. of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); Holeman, E.W. v. Landmark Chevrolet Corp., 989 S.W.2d 395, 397 (Tex. App.-- Houston [14th Dist.] 1999, writ denied) (citing Varme v. Gordon, 881 S.W.2d 877, 881 (Tex. App.--Houston [14th Dist.] 1994, writ denied). Our review requires that we consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Id. at 397 (citing Island Recreational Dev. Corp. v. Republic Of Texas Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986)). We may not reverse unless the error, when viewed in light of the totality...