Houston Sports Ass'n v. Russell
| Decision Date | 28 January 1970 |
| Docket Number | No. 277,277 |
| Parties | HOUSTON SPORTS ASSOCIATION, INC., Appellant, v. Mrs. Ella B. RUSSELL, a widow, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Lew W. Harpold, W. Ervin James, Hofheinz & James, Houston, for appellant.
W. James Kronzer, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellee.
This is a personal injury case. The injuries were sustained by Mrs. Ella B. Russell, plaintiff in the trial court and appellee here, when she fell while going down some steps in the Harris County Domed Stadium. The Houston Sports Association occupies the Harris County Domed Stadium as lessee from Harris County. Houston Sports Association was the defendant in the trial court and is appellant. At the time of her fall Mrs. Russell was in the domed stadium as an invitee of Houston Sports Association. The trial was to a jury and resulted in a judgment for Mrs. Russell for $42,892.25. Under the circumstances hereinafter discussed the trial court required a remittitur of $12,500. Such remittitur was duly filed. Houston Sports Association has appealed. The parties will sometimes be designated as they were in the trial court.
Soon after the domed stadium was opened, the Houston Sports Association began conducting guided tours through it. Each person taking such tour was charged $1. On October 18, 1968, Mrs. Russell, her sister and her cousin took the guided tour of the stadium. At the time Mrs. Russell was 79 years old and her sister and cousin were ladies about 70 years of age. It was the practice of the appellant to conduct special slower moving tours for elderly people and those who were physically handicapped. These ladies decided to take this slow tour.
After those intending to take the tour had entered the stadium they were assembled for preliminary instructions. They were then divided into groups, each led by a guide, and proceeded through the stadium. As they came to the various points of interest the guide would give a 'spiel' calling attention to and explaining the interesting features of the stadium.
There were about 40 people in the slow moving tour of which Mrs. Russell and her relatives were members. The tour had been going for some time when it reached the area on the fifth level of the stadium where the press boxes were located. Much of the testimony given in the description of the area was given with reference to a drawing on a blackboard. The trial judge and the members of the jury were able to see the blackboard to which the witnesses referred and pointed as they described the area. The description of the area was, therefore, clearer to them than it is to this Court. It is apparent, though, that the members of the tour group approached the press boxes from one level and were required to take two steps down to reach the level on which the press boxes were. It was in taking the first of these two steps down that Mrs. Russell fell. There was no handrail for the use of those descending the steps. The liability issues submitted to the jury and the answers thereto were as follows:
'SPECIAL ISSUE NO. 1
'Do you find from a preponderance of the evidence that the depth of the step in question created a more than ordinary risk of harm to Mrs. Russell in using the step at the time and on the occasion in question?
'By the term 'more than ordinary risk of harm' is meant such risk as would not have been allowed to exist by reasonably prudent persons in the exercise of ordinary care under the same or similar ircumstances.
'To which the jury answered 'We do'.
'If you have answered Special Issue No. 1 'We do', and only in that event, then answer the following:
'SPECIAL ISSUE NO. 2
'Do you find from a preponderance of the evidence that such risk of harm, if any, was a proximate cause of Mrs. Ella B. Russell's fall?
'To which the jury answered 'We do'.
'If you have answered Special Issue No. 1 'We do', and only in that event, then answer the following:
'SPECIAL ISSUE NO. 3
'Do you find from a preponderance of the evidence that at the time that Mrs. Russell took her first step down she did not actually know that she was confronted with a condition creating a more than ordinary risk of harm?
'To which the jury answered 'She did not actually know'.
'If you have answered Special Issue No. 3 'She did actually know', and only in that event, then answer the following:
'SPECIAL ISSUE NO. 4
'Do you find from a preponderance of the evidence that at the time Mrs. Russell took her first step down she did not actually, fully appreciate the more than ordinary risk of harm, if any, with which she was confronted?
'To which the jury gave no answer.
'SPECIAL ISSUE NO. 5
'Do you find from a preponderance of the evidence that the failure of the Houston Sports Association to provide handrails on the occasion in question was negligence as that term is herein defined?
'To which the jury answered 'We do'.
'If you have answered Special Issue No. 5 'We do', and only in that event, then answer the following:
'SPECIAL ISSUE NO. 6
'Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of Mrs. Russell's fall?
'To which the jury answered 'We do'.
'SPECIAL ISSUE NO. 7
'Do you find from a preponderance of the evidence that at the time and on the occasion in question Plaintiff, Mrs. Ella B. Russell, filed to keep such a lookout as would have been kept by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances?
'To which the jury answered 'We do not'.
'If you have answered Special Issue No. 7 'We do', and only in that event, then answer:
'SPECIAL ISSUE NO. 8
'Do you find from a preponderance of the evidence that such failure to keep such a lookout, if you have so found, was a proximate cause of the occurrence in question?
'To which the jury gave no answer.
'SPECIAL ISSUE NO. 9
'Do you find from a preponderance of the evidence that the accident in question was not the result of an unavoidable accident?
'By the term 'unavoidable accident', as used in the above Special Issue, is meant an event which occurred without having been proximately caused by any begligence on the part of either party thereto.
'To which the jury answered 'It was not the result of an unavoidable accident."
The jury then found that the plaintiff has sustained $42,500 damage for past and future physical and mental pain and suffering and for loss of past earnings and future earning capacity. The damages sustained by way of medical expense were found, separately, to be $392.25.
The first question presented for determination by this Court is the question as to whether there is any probative evidence of the facts found by the jury upon the basis of which liability was imposed upon Houston Sports Association. This is the 'no evidence' question of law. 'In deciding that question, the appellate court must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary.' Garza v. Alviar (Tex.Sup.Ct.), 395 S.W.2d 821, 823.
It is to be remembered that a special area of the law of torts is applicable to this case because the relationship of the plaintiff to the defendant was that of an invitee to an occupier of the premises in question. Where an invitee seeks to recover from the occupier for injuries sustained because of a condition on the premises onto which he has been invited by the occupier, he must sustain the burden of proving that he was injured because a condition on the premises constituted an unreasonable risk of harm to him and that the occupier was under a duty to take reasonable precautions to protect him from such dangerous condition. Halepeska v. Callihan Interests, Inc. (Tex.Sup.Ct.), 371 S.W.2d 368 .
The physical characteristics of the step on which Mrs. Russell fell were established fairly definitely by the evidence. The depth from the floor from which Mrs. Russell stepped to the tread of the stair onto which she was stepping was approximately 8 3/4 inches. The width of the tread on the step was approximately 12 inches. The area was well lighted. There was no rubbish lying about. There was no handrail. The surface was not slick, worn or broken.
Plaintiff's contention that a condition existed which constituted an unreasonable risk of harm to her, if sustained, must be sustained because the depth from the floor from which she stepped to the tread of the step onto which she was trying to step, was, under the existing circumstances, too great for the safety of her and the other invitees exposed to such condition.
An architect called as a witness by plaintiff testified to facts which showed his qualification to give expert opinion as to the proper construction of steps in public buildings. He testified that the step should be so constructed that the maximum height of the riser should be not more than 7 3/4 inches. He also testified that the heighth of the step on a particular public building should conform to the prevailing architectural practice as to the heighth of steps in public buildings generally. In response to questions by appellee's attorney he said:
Q. (By Mr. Ballard)
A. 'Well, it has been found that people can, I suppose, navigate these steps if they are within this certain range and that is why these rules are set up.'
Q. 'What range are we talking about now?'
A. 'Well, this general range that I was speaking of as seven and a half to seven and three-quarter inch rise with, say, an eleven-inch tread.'
Mrs. Russell testified that she did not realize the depth of the step until she had...
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