M.D. Anderson Hosp. and Tumor Institute v. Felter
| Decision Date | 06 August 1992 |
| Docket Number | No. 01-90-00669-CV,01-90-00669-CV |
| Citation | 837 S.W.2d 245 |
| Parties | M.D. ANDERSON HOSPITAL AND TUMOR INSTITUTE, Appellant, v. Berylmae FELTER, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Henry R. Muller, Roy G. Romo, Houston, for appellant.
Dan Morales, Will Pryor, Mary F. Keller, Delmar I. Cain, L. Lynette Phillips, Houston, for appellee.
Before OLIVER-PARROTT, C.J., and WILSON and MIRABAL, JJ.
In the trial court, appellee, Berylmae Felter, brought a "slip and fall" case under the Texas Tort Claims Act, 1 against appellant, M.D. Anderson Hospital and Tumor Institute. After a jury verdict favorable to Mrs. Felter, the court awarded her a judgment for $100,000, an amount found by the judge to be the maximum allowable under the act at the time the cause of action arose. In three points of error, appellant challenges the evidence supporting the jury's findings. By cross-points, appellee argues the court incorrectly concluded $100,000 was the maximum allowed by law. We affirm the trial court's judgment.
Testimony showed appellee had been spending night and day in her husband's room while he was being treated for cancer. It was undisputed that during her December 13, 1982, "visit" to the hospital, appellee slipped because of water on the floor, and fell, breaking her hip. The incident happened near a bathroom door in the hallway of the hospital floor where her husband was being treated. While appellee was recovering from the fall, her husband died. She did not see her husband alive again after the accident.
The jury answered five questions that included findings that: (1) appellee was an invitee on appellant's premises rather than a licensee; (2) the hospital was liable for negligence; (3) appellee's damages were in the amount of $156,092.71. Appellant asserts under its first point of error that there was no evidence to support the jury's finding that appellee was an invitee on appellant's premises.
There are five ways to preserve a "no evidence" point of error: motion for instructed verdict, motion for judgment notwithstanding the verdict, objection to submission of jury question, motion to disregard jury's answer to vital fact question, and a motion for new trial. Steves Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473, 477 (Tex.1988). Even though a motion for new trial was filed, it did not mention the argument appellant now advances. Appellant failed to preserve error.
Accordingly, we overrule appellant's first point of error.
In its second point of error, appellant asserts there is insufficient evidence to support the jury's finding that appellee was an invitee on appellant's premises.
Only one standard of review is used in reviewing factual sufficiency challenges, regardless of whether the court of appeals is reviewing a negative or affirmative jury finding or whether the complaining party had the burden of proof on the issue. M.J. Sheridan & Son v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex.App.--Houston [1st Dist.] 1987, no writ). The court of appeals must first examine all of the evidence, Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986), and, having considered and weighed all of the evidence, it should set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Otis Elevator Co. v. Joseph, 749 S.W.2d 920, 923 (Tex.App.--Houston [1st Dist.] 1988, no writ).
Because the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.), the court of appeals may not substitute its opinion for that of the trier of fact merely because it might have reached a different fact conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988); Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.--Dallas 1986, writ ref'd n.r.e.).
Under the Texas Tort Claims Act, to be an invitee on the premises of a governmental unit, payment must be made by the claimant for the use of the premises. Marshbank v. Austin Bridge Co., 669 S.W.2d 129, 133 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.). Appellant complains about the following jury finding:
On the occasion in question was Mrs. Felter a licensee or invitee on M.D. Anderson Hospital's premises?
"INVITEE" means a person that pays for the use of the premises.
"LICENSEE" means a person who is on the premises with the permission of the possessor but without an express or implied invitation. Such person is on the premises only because the possessor has allowed such person to enter and not because of any business or contractual relations with, or enticement, allurement, or inducement to enter, by the possessor.
Answer either "INVITEE" or "LICENSEE."
The evidence showed that in December 1982, appellee was spending continuous time with her husband in the hospital while his treatment continued. Appellee slept on a sofa bed provided by the hospital in her husband's room. On direct examination, appellee testified as follows:
On cross-examination, appellee testified:
On redirect examination, appellee testified:
Beverly Jean Wood, appellee's daughter testified:
While appellee's testimony does indicate some ambivalence concerning whether she paid for the use of M.D. Anderson's facilities, there is some evidence to that effect. The jury decides the credibility of the witnesses and the weight to be given their testimony. The jury resolves conflicts in the testimony of witnesses, and it has the exclusive prerogative to believe part of a witness' testimony or disregard it. American Home Assur. Co. v. Guevara, 717 S.W.2d 381, 384 (Tex.App.--San Antonio 1986, no writ). We do not find the jury's finding that appellee was an invitee so against the great weight and preponderance of the evidence as to be manifestly unjust.
We overrule appellant's second point of error.
Appellant asserts in its third point of error that the jury's failure to find Berylmae Felter contributorily negligent was not supported by factually sufficient evidence, and is so against the great weight and preponderance as to be manifestly unjust.
The burden of the proof is on the defendant to establish contributory negligence. Safeway Stores, Inc. v. Bozeman, 394 S.W.2d 532, 538 (Tex.Civ.App.--Tyler 1965, writ ref'd n.r.e.). A failure to find does not have to be supported by affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973). The standard of review for this point of error is the same as used under point of error two.
After weighing all the evidence, we do not find that the jury's failure to find appellee negligent is so against the great weight and preponderance of the evidence as to be manifestly unjust. An invitee is under a duty to exercise reasonable care for his own self-protection against dangers of which he knows or ought to know. Camp v. J.H. Kirkpatrick Co., 250 S.W.2d 413, 417 (Tex.Civ.App.--San Antonio 1952, no writ). There is testimony that appellee knew there was a leak in one of the bathrooms on the day of her fall. Appellee's testimony concerning whether she saw any water on the hallway floor on the day of the accident varies. It varies from answers that she did not see any water, to answers that she does not remember if she saw any water that day. Appellee stated that they were always mopping and cleaning in that area and that "I had seen water before in the morning early when you go there." However, concerning whether she saw water on the hallway floor at the critical time, before she fell, she responded, "No. I wasn't looking down at the floor when I went to that area." There is no evidence that appellee saw water in the hallway and proceeded to walk into it anyway. As a matter of fact, there is evidence that appellee was attempting to be careful to avoid a situation where she would be in...
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