Doctor v. Pardue

• Decision Date: 15 September 2005
• Docket Number: No. 01-03-00899-CV.,01-03-00899-CV.
• Citation: 186 S.W.3d 4
• Parties: Laird DOCTOR and Linda Doctor, Appellants, v. Howard E. PARDUE and Experimental Aircraft Association, Inc., Appellees.
• Court: Texas Court of Appeals

Page 4

186 S.W.3d 4

Laird DOCTOR and Linda Doctor, Appellants, v. Howard E. PARDUE and Experimental Aircraft Association, Inc., Appellees.

No. 01-03-00899-CV.

Court of Appeals of Texas, Houston (1st Dist.).

September 15, 2005.

Rehearing Overruled March 9, 2006.

COPYRIGHT MATERIAL OMITTED

Dana R. Allison, Brownsville, Lance H. Lubel, Heard, Robins, Cloud, Lubel, & Greenwood, L.L.P., Houston, Guy H. Allison, The Allison Law Firm, Corpus Christi, Linda L.S. Moroney, Sharon S. McCally, Storey, Moore & McCally, P.C., JoAnn Storey, JoAnn Storey, P.C., Houston, for Appellants.

Jeffrey J. Putnam, Mark Cohen, Cohen, Gorman & Putnam, L.L.P., Houston, Robert F. Ruckman, David T. Moran, Jackson Walker L.L.P., Dallas, Frank G. Vlahakos, Richard E. Griffin, Jackson & Walker, L.L.P., Houston, for Appellees.

Panel consists of Justices JENNINGS, HANKS, and EVANS.^*

OPINION

TERRY JENNINGS, Justice.

Appellants, Laird Doctor ("Lad") and Linda Doctor, challenge the trial court's judgment entered after a jury trial in their negligence suit against appellees, Experimental Aircraft Association, Inc. ("EAA") and Howard Pardue, for personal injuries that Lad sustained in an airplane collision that occurred in Wisconsin. The Doctors present six issues for our review, seeking a reversal of the trial court's judgment, which ordered that they recover $500,000 from EAA and take nothing from Pardue. The Doctors contend that the trial court erred in concluding that Texas was the state with the most significant relationship to the issue of charitable immunity and in applying the Texas Charitable Immunity and Liability Act (the "Act")¹ to limit their award against EAA and to completely immunize Pardue. The Doctors also contend that the evidence is factually insufficient to support the jury's findings of zero damages for Lad's past and future physical pain and mental anguish, past and future disfigurement, and past and future physical impairment; zero damages for Lad's past medical expenses; $2.5 million in damages for Lad's future medical expenses; zero damages for Linda's past loss of consortium; and $50,000 for Linda's future loss of consortium.

We reverse and remand for a new trial.

Factual and Procedural Background

EAA, a not-for-profit charitable corporation incorporated under the laws of Wisconsin, maintains its principal place of business in Wisconsin. Although it is not registered to do business in Texas, EAA is subject to the general jurisdiction of Texas courts.² EAA is an organization dedicated to preserving the grassroots aspect of aviation and encouraging families and children to become interested in aviation. It assists governmental agencies in the development of aviation activities and promotes and encourages aviation safety, aviation research and development, and non-commercial aviation. Every year, EAA hosts a convention and sponsors an air show, known as "AirVenture," in Oshkosh, Wisconsin.

In July 1999, Lad was rendered a quadriplegic at the air show when the vintage World War II Corsair aircraft that he was piloting collided on the runway with another aircraft piloted by Pardue. At the time of the collision, Lad was working as a professional pilot and an employee of the Corsair's owner, the Cavanaugh Flight Museum ("CFM"), located in Addison, Texas. Pardue was piloting an aircraft owned by the Breckenridge Air Museum ("BAM"), a charitable organization located in Breckenridge, Texas, and he was serving as a BAM volunteer. Lad and Pardue, both Texas residents, attended the air show in Wisconsin to exhibit the aircrafts on behalf of their respective organizations.

The Doctors sued EAA and Pardue for negligence, seeking damages "under the laws of the State of Texas." EAA filed a motion for partial summary judgment seeking a ruling that, based on the Act, its liability to the Doctors was limited to $500,000. Pardue also filed a motion for partial summary judgment seeking a ruling that, based on the Act, as a volunteer he was entitled to absolute immunity from liability for the Doctors' injuries. The Doctors then filed an amended petition asserting that Wisconsin law should govern the issue of charitable immunity. EAA and Pardue also filed pretrial motions for determination of applicable law, arguing that Texas law should govern and that the Act should apply. The trial court carried these motions through trial.

The jury, finding that the negligence of EAA, Pardue, and Lad proximately caused the collision, attributed 25% of the negligence to EAA, 25% of the negligence to Pardue, and 50% of the negligence to Lad. The jury awarded zero damages for Lad's past and future physical pain and mental anguish, past and future disfigurement, past and future physical impairment, and past medical expenses; $2.5 million in damages for Lad's future medical expenses; zero damages for Linda's past loss of consortium; and $50,000 for Linda's future loss of consortium. The jury further found that, at the time of the collision, EAA was a charitable organization and that Pardue was acting in good faith and in the course and scope of his duties and functions as a volunteer of a charitable organization. Based on these findings, the trial court applied the limitations set forth in the Act and rendered final judgment that the Doctors recover $500,000 from EAA and take nothing from Pardue.

Choice of Law

In their fifth issue, the Doctors argue that the trial court erred in applying the Act to limit EAA's liability because Wisconsin had the most significant relationship to the charitable immunity issue as EAA³ is a Wisconsin organization, the acts and omissions underlying the jury's negligence finding occurred in Wisconsin, and the crash and resultant injury occurred in Wisconsin. The Doctors also argue that if the trial court's application of the Act is affirmed by this Court, Texas corporations will lose the protections provided under the Act when sued in foreign states by foreign plaintiffs, even for injuries arising out of charitable services performed in Texas.

The determination of which state's law applies is a question for the court. Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex.2000). Therefore, we must review the trial court's decision to apply Texas law to this case de novo. Minn. Mining & Mfg. Co. v. Nishika Ltd., 955 S.W.2d 853, 856 (Tex.1996); Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349, 352 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Texas courts use the "most significant relationship" test to decide choice of law issues. Torrington Co., 46 S.W.3d at 848; Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex.2000); see also RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 6, 145 (1971). Under that test, a court must consider which state's law has the most significant relationship "to the particular substantive issue to be resolved." Hughes Wood Prods., Inc., 18 S.W.3d at 205.

EAA argues that the trial court correctly applied the Act to reduce the jury's damages award to $500,000 because Texas is the state with the most significant relationship "to the discrete issue of the amount of compensatory damages" recoverable by the Doctors. EAA asserts that Texas has an overriding interest in reducing the liability exposure and limiting compensatory damage awards against charitable organizations, including those not incorporated in Texas, like EAA. In support of its argument, EAA relies on Torrington, in which the plaintiffs argued in favor of application of Texas law on damages, while the defendants argued for application of Michigan law, which did not permit recovery of mental anguish damages, or Nebraska law, which only permitted recovery for pecuniary losses. 46 S.W.3d at 848 n. 16.

However, the issue here, unlike the issue presented to the court in Torrington, does not directly relate to the type of damages recoverable by plaintiffs, but instead relates to protections afforded to a certain class of defendants—charities and volunteers, for a certain type of conduct—performance of charitable services. We note that the doctrine of charitable immunity has been treated as an affirmative defense that must be pleaded and proven by parties seeking its application. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999) (stating that immunity from liability, like other defenses to liability, must be pleaded and proven and can be waived); Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 939 (Tex.1992) (stating that governmental immunity and charitable immunity can be waived by failure to assert them as affirmative defenses) (citing Davis v. City of San Antonio, 752 S.W.2d 518, 520 (Tex.1988)). The central issue disputed by the parties in this case, distinct from the issue in Torrington, is whether the trial court properly limited the liability of EAA and completely immunized Pardue pursuant to the provisions of the Texas Charitable Immunity and Liability Act. We thus hold that the underlying particular substantive issue presented to this court is one of "charitable immunity."⁴

Accordingly, we now consider, under the most significant relationship test, whether the law of Wisconsin or Texas should apply. We begin our choice of law analysis by consulting section 168 of the Restatement of Conflict of Laws, which specifically addresses charitable immunity. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 168 (1971); see also Hughes Wood Prods., Inc., 18 S.W.3d at 206 n. 2 (stating that "[this] Court has often applied more specific sections of the Restatement to address particular choice of law issues"); Robertson v. Estate of McKnight, 609 S.W.2d 534, 536 (Tex.1980) (applying section 169 of Restatement to determine choice of law on issue of interspousal tort immunity). Section 168 provides that the law selected by application of section 145 of the Restatement determines the issue of charitable immunity. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 168. The comments to section 168 further provide that the determination of the applicable...