HNMC, Inc. v. Chan

CourtCourt of Appeals of Texas
Citation637 S.W.3d 919
Docket NumberNO. 14-18-00849-CV,14-18-00849-CV
Parties HNMC, INC., Appellant v. Francis S. CHAN, Individually and as Personal Representative of the Estate of Leny Rey Chan, Jonathan Chan, and Justin Chan, Appellees
Decision Date30 December 2021

Christina Huston, Carol Y. Kennedy, Curry L. Cooksey, Courtney Parecki, The Woodlands, Kurt C. Kern, Hunter Oliver, Dallas, for Appellant.

Richard P. Hogan, Jr., Jennifer Bruch Hogan, James C. Marrow, David Salazar, Jim S. Hart, Steven Joseph Kherkher, Sharon McCally, Andrew Bender, Houston, for Appellees.

Before the court en banc.


Margaret "Meg" Poissant, Justice

This court issued its opinion and rendered judgment in this case on May 28, 2020. After the filing of a timely motion for en banc reconsideration, this Court has decided to grant the motion for en banc reconsideration.1 We withdraw our initial opinion and judgment of May 28, 2020, and substitute this opinion in its stead. We affirm.

Appellant Houston Northwest Medical Center ("HNMC") appeals the trial court judgment in favor of appellees Francis S. Chan, Jonathan Chan, and Justin Chan—the husband and sons, respectively, of Leny Rey Chan, deceased.2 In five issues, HNMC argues that: (1) appellees’ claims are barred by workers’ compensation coverage; (2) it owed no duty to Chan in a public roadway; (3) appellees cannot recover under a general theory of negligence in this case; (4) the evidence is legally and factually insufficient to support the jury's findings that HNMC breached a duty and that said breach caused Chan to suffer damages; and (5) the trial court erred by admitting "inadmissible evidence" or evidence "prohibited by the court" of pertaining to other pedestrian-vehicle incidents on the premises. We address each issue in turn as they were presented on appeal.


Chan worked as a nurse for more than thirty years at HNMC. After her shift ended on March 17, 2015, Chan left the building from the northeast door. Adjacent to the northeast side of the building is Cali Drive, a public roadway owned and maintained by Harris County. Chan's car was parked in a surface parking lot across Cali Drive owned by HNMC. The quarter-mile long parking lot has two pedestrian gates at each end of the lot and a single operative vehicle entrance/exit at a mid-block location, almost directly across from the northeast hospital exit. Two marked pedestrian crosswalks were located at each end of the block on Cali Drive. The parties dispute the existence of a crosswalk at the mid-block location near the hospital's northeast exit.3

As she had done in the past when leaving the hospital, Chan walked across Cali Drive at the mid-block location almost directly outside the northeast exit door instead of using one of the two crosswalks near each end of the block. According to appellees, it was common for persons leaving the hospital at the northeast exit to cross Cali Drive at mid-block and enter the parking lot by walking through the vehicle entrance/exit. There was no pedestrian gate in the immediate vicinity of the vehicle entrance/exit. The perimeter of the parking lot, other than the pedestrian gates and the sole vehicle entrance/exit, was fenced.

As Chan crossed Cali Drive toward the parking lot, James Budd drove his car out of the parking lot exit, turned left onto Cali Drive, and struck Chan. Chan died from her injuries.

Appellees sued Budd and Budd's employer, Siemens Medical Solutions USA, Inc. ("Siemens"), asserting claims for wrongful death and negligence. Siemens designated Harris County and HNMC as responsible third parties. As to HNMC, Siemens alleged that the hospital failed to take adequate measures to prevent ingress and egress to and from Cali Drive, encouraged pedestrians to approach and cross Cali Drive at unsafe locations, and failed to advise pedestrians on HNMC's property of known risks existing on and near the premises. These risks, according to Siemens, facilitated the unsafe pedestrian conditions existing when Chan crossed Cali Drive and proximately caused Chan's death.

Appellees then added HNMC as a named defendant, alleging that HNMC was negligent in:

• failing to structure its premises surrounding Cali Drive, including its parking lots and access points, in a reasonably safe design to ensure the safe entry and exit of pedestrians to and from Cali Drive;
• failing to install barriers to bar crossing Cali Drive at unsafe locations;
• failing to post any signage near the subject crosswalk directing pedestrians to alternate locations to cross Cali Drive; and
• failing to warn of the alleged known dangerous conditions at the location.

HNMC moved for summary judgment on the ground that the Texas Workers’ Compensation Act (TWCA) barred appellees’ claim. The trial court denied this motion on February 13, 2017. On April 5, 2018, HNMC also moved for summary judgment on the ground that HNMC owed no legal duty to Chan as a pedestrian in a public street; however, the trial court did not rule on this motion.

Trial on the merits began on May 7, 2018. After appellees rested, appellants moved for directed verdict asserting (1) the TWCA barred Chan from relief and (2) HNMC did not owe a duty to Chan. The trial court denied the motion, and Siemens began its case-in-chief. After Siemens rested, HNMC again moved for directed verdict on the same grounds: the TWCA barred Chan from relief and HNMC did not owe a duty to Chan. The trial court denied the motion.

The jury found that the negligence of Budd, HNMC, Harris County, and Chan proximately caused Chan's death. The jury apportioned negligence 40% to Budd, 20% to HNMC, 30% to Harris County and 10% to Chan. The jury awarded a total of $10 million to Chan's husband and $2.5 million to each of Chan's sons. On June 11, 2018, HNMC filed a motion for judgment notwithstanding the verdict, arguing that Chan's claim was barred by the TWCA and that it did not owe a duty to Chan. The trial court signed a final judgment on July 2, 2018, incorporating the jury's findings. After the court signed its judgment, appellees settled with Budd and Siemens and filed a release of judgment as to them, leaving only the judgment against HNMC. On August 1, 2018, HNMC filed a motion to set aside judgment and for new trial, which was overruled by operation of law. See Tex. R. Civ. P. 329b(c).

HNMC timely filed its appeal and seeks either the rendition of a take-nothing judgment or a new trial.


With the exception of instances of intentional acts or gross negligence, recovery of workers’ compensation benefits is "the exclusive remedy" for an employee covered by workers’ compensation insurance or for a legal beneficiary against the employer, or an agent or employee of the employer, for the death or work-related injury sustained by the employee. See Tex. Lab. Code Ann. § 408.001(a).

In its first issue, HNMC argues that its subscription to statutory workers’ compensation coverage bars appellees’ claims. In the trial court, HNMC argued that the TWCA barred Chan from relief in two motions for summary judgment, a motion for directed verdict, a motion for judgment notwithstanding the verdict (JNOV), and a motion for new trial. However, while HNMC points us to the denial of its motion for JNOV in a single footnote, HNMC's argument in its brief addresses only the trial court's denial of its summary judgment motion on the basis that the TWCA barred Chan from relief. HNMC's conclusion states "Summary judgment should have been granted to [HNMC] on February 13, 2017. The motion was denied."

Generally, the denial of summary judgment cannot be reviewed on appeal. Cincinnati Life Ins. v. Cates , 927 S.W.3d 623, 625 (Tex. 1996). Thus, when a motion for summary judgment is denied by the trial judge and the case is tried on the merits, "[t]he party's remedy is to assign error to the trial court's judgment ultimately rendered following trial on the merits." United Parcel Serv., Inc. v. Tasdemiroglu , 25 S.W.3d 914, 916 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Because HNMC challenges the denial of summary judgment directly and fails to assign error to the trial court's judgment, the denial of its motion for new trial, or the denial of its JNOV, we overrule its first issue. Id.


In its second issue, HNMC argues that it owed no duty to ensure Chan's safety while she crossed the public roadway. HNMC and Chan dispute whether this is a premises liability case or a general negligence case. That issue is inconsequential because the initial inquiry under either theory is whether a duty exists, and both sides agree on the body of law governing the duty questions presented. Furthermore, as noted below, the case was submitted to the jury with an instruction on general negligence only, and HNMC waived any complaint as to the theory submitted to the jury because it invited the instruction. For the reasons detailed below, we conclude that HNMC owed Chan a duty.


The existence of a duty is generally a question of law, and that determination is made from the facts surrounding the occurrence in question. Tri v. J.T.T. , 162 S.W.3d 552, 563 (Tex. 2005) ; see Pagayon v. Exxon Mobil Corp. , 536 S.W.3d 499, 503 (Tex. 2017). When the issue on appeal is a question of law, we exercise de novo review. See El Paso Nat'l Gas Co. v. Minco Oil & Gas, Inc. , 8 S.W.3d 309, 312 (Tex. 1999). However, a jury question can arise when the facts involving the duty are in dispute. See Pagayon , 536 S.W.3d at 503–04 ; Fort Bend Cnty. Drainage Dist. v. Sbrusch , 818 S.W.2d 392, 395 (Tex. 1991). When reviewing error under a de novo standard, we conduct an independent analysis of the record to arrive at our own legal conclusion. See Quick v. City of Austin , 7 S.W.3d 109, 116 (Tex. 1998) ; Rieves v. Buc-ee's Ltd. , 532 S.W.3d 845, 850 (Tex. App.—Houston [14th Dist.] 2017, no pet.).


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