McAllen Kentucky Fried Chicken No. 1, Inc. v. Leal

• Decision Date: 23 December 1981
• Docket Number: No. 1860,1860
• Citation: 627 S.W.2d 480
• Parties: McALLEN KENTUCKY FRIED CHICKEN NO. 1, INC., Appellant, v. Leonor LEAL, Oscar Leal, Carlos Sanchez and Heidi Garcia, Appellees. cv.
• Court: Texas Court of Appeals

Page 480

627 S.W.2d 480

McALLEN KENTUCKY FRIED CHICKEN NO. 1, INC., Appellant, v. Leonor LEAL, Oscar Leal, Carlos Sanchez and Heidi Garcia, Appellees.

No. 1860cv.

Court of Appeals of Texas, Corpus Christi.

Dec. 23, 1981.

Rehearing Denied Jan. 28, 1982.

James R. Mardis, Harlingen, for appellant.

A. A. Munoz, II and Ronald B. Layer, McAllen, for appellees.

Before NYE, C. J., and UTTER and KENNEDY, JJ.

OPINION

UTTER, Justice.

This is an appeal from a suit for damages resulting from an accident which occurred while appellee was a customer at appellant's store. Leonor Leal joined by her husband, Oscar Leal, plaintiffs-appellees, brought suit against defendants, Heidi Garcia and Carlos Sanchez, for negligence in the operation of a vehicle driven by Heidi Garcia and owned by Carlos Sanchez. Plaintiffs also brought suit against defendant, McAllen Kentucky Fried Chicken No. 1, Inc. Defendant-appellant, McAllen Kentucky Fried Chicken No. 1, Inc., filed a cross-action against Heidi Garcia and Carlos Sanchez seeking contribution and indemnity. Prior to the commencement of trial the plaintiffs, Leonor and Oscar Leal, and defendants, Heidi Garcia and Carlos Sanchez, reached a settlement agreement and these defendants were non-suited.

The record indicates the following facts and circumstances. On December 24, 1977 appellee Leal was injured when a car driven by appellee Garcia struck the wall of the appellant's store, resulting in multiple injuries to appellee Leal, who was seated inside the building at the time of the accident. Appellee Leal alleged that appellant failed to provide adequate barriers to prohibit vehicles from running into the building and injuring customers therein.

The jury found that the appellee Leal should recover $206,108.45 and the court entered judgment for such amount. Motions for judgment N.O.V. and new trial by appellant were denied and this appeal followed.

In answering the special issues, the jury found that the appellant failed to exercise reasonable and ordinary care to maintain its establishment in a reasonably safe condition for use by its customers and that such failure was a proximate cause of the accident. In addition, the jury found that appellee Garcia was negligent in the operation of her vehicle but that such negligence was not a proximate cause of the occurrence, and that the percentage of negligence attributable to each party was 90% against appellant and 10% against appellee Garcia.

Appellant brings 13 points of error. In points 1 through 7 appellant contends that there is either no evidence or insufficient evidence to support the jury's finding that appellant failed to maintain a reasonably safe condition for its customers. Appellant argues that the foreseeability issue is lacking and that the negligence of appellee Garcia was a new and independent cause of the occurrence.

On the question of foreseeability, appellant's area supervisor testified that there were numerous Kentucky Fried Chicken stores that have parking facilities similar to the appellant's facilities. That all stores maintained a barrier of concrete abutting out from the wall of the building which are 32 inches in width and 6 inches in height; that no other type of barrier is used except for the drive-in windows. He testified further that the accident in question was the only incident where the wall was severely damaged by an accident of this type in the preceding eight years.

Appellee Garcia testified that she had slowed down when she entered the premises; that she was not going fast. Further, that when she attempted to apply the regular brakes, they failed and she then put on the emergency brakes. She further testified without objection that if the sidewall had been higher or wider, or if there had been "carstops" there she would not have hit the building. Appellees' expert, Flanigan, testified that in his opinion a barrier would have prevented the accident; that the appellant's sidewalk type barrier would not be high enough to restrain an automobile coming in at a speed of 1/2 mile per hour. He further testified that there was a need for a more substantial type barrier and that without such a barrier the premises would be dangerous and unsafe.

Appellant's main argument on foreseeability is predicated on the fact that over a period of eight years the twenty stores with similar type of drive-ways and sidewalks had never had an incident of that type and that therefore this accident was not foreseeable.

It is true that the fact as to whether other accidents have or have not occurred could be probative as to whether or not such an event was foreseeable but it is not conclusive. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970). In Parking, Inc. v. Dalrymple, 375 S.W.2d 758 (Tex.Civ.App.-San Antonio 1964, no writ) the Court stated:

"Appellant showed that for the fourteen years it had operated the lot no one had ever fallen into the creek or had attempted to take a short-cut to the theatre. * * * We cannot say, as a matter of law, that appellant could not reasonably anticipate that someone would fall into the creek if it was obscured, and suffer some type of injury. * * * We overrule appellant's point that the accident was not foreseeable as a matter of law."

The foreseeability element of proximate cause does not require the particular act to have been foreseen, but that the injury be of such general character as might reasonably have been anticipated. Brownsville and Matamoros Bridge Co. v. Null, 578 S.W.2d 774 (Tex.Civ.App.-Corpus Christi 1979, writ ref'd, n.r.e.), Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970).

The jury having found affirmatively on the issue of proximate cause, which included the element of foreseeability, we cannot say as a matter of law that appellant could not reasonably anticipate that an automobile might run into the building causing the damages and injuries complained about. Parking, Inc. v. Dalrymple, supra.

We find that the testimony of appellee Garcia and the expert Flanigan presents evidence to support the jury's finding of proximate cause. Martinez v. Delta Brands, 515 S.W.2d 263 (Tex.1974); East Texas Theaters Inc. v. Rutledge, 453 S.W.2d 466 (Tex.1970). Furthermore, after careful consideration of all the evidence, as required by In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951), we hold the evidence is factually sufficient to support the jury's finding and that the finding of proximate cause is not against the great weight and preponderance of the evidence.

Appellant complains the trial court erred in refusing to submit the timely requested instruction on new and independent cause. Appellant argues that the negligence of appellee Garcia was a new and independent cause which destroys the causal connection of an act or omission by the appellant.

New and independent cause is not an issue to be submitted to the jury, but is an element to be considered by the jury in determining the existence of proximate cause. Dallas Railway & Terminal Company v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952).

A review of the criteria set forth in Humble Oil & Refining Company v. Whitten, 427 S.W.2d 313 (Tex.1968) requires the conclusion that appellee Garcia's negligent act was not a new and independent cause of the occurrence. The jury concluded that appellant failed to exercise reasonable and ordinary care to maintain its establishment in a reasonably safe condition and this failure was a proximate cause of the occurrence. The negligent act of appellee Garcia did not independently cause the occurrence but was dependent upon appellant's failure to maintain a reasonably safe condition for its customers. We find that the trial court did not err in refusing to submit the new and independent cause instruction to the jury. Bell v. Campbell, 434 S.W.2d 117. We overrule these points.

Appellant contends in points 8, 9 and 10 that the trial court erred in overruling its motion for new trial for the reason that the damage award by the jury was against the great weight and preponderance of the evidence.

At the time of the accident appellee Leal was 54 years old and was holding down two jobs at the Downtowner Motel and Paradise Park working about 12 hours a day and earning about $740.00 a month. The record reflects that appellee Leal had worked all her life, and that she expected she would have continued to do so, had it not been for the accident. The evidence, viewing it most favorably to the jury's award, would justify the conclusion that appellee Leal was making about $9,000.00 per year at the time of the accident. Furthermore, a female the age of appellee Leal has a life expectancy of 26 more years at the time of her injuries. Appellee Leal was unable to work at the time of trial and it appears she will be unable to do so in the future.

As to the physical injuries sustained by appellee Leal the record reflects that due to the accident appellee Leal sustained injuries to her back, neck and wrist. She was taken to a hospital immediately after the accident. Appellee Leal was first seen by an orthopedic doctor on January 3, 1978. She was subsequently operated on for the condition of her wrist but her back, neck and leg pain continued. A myleogram and discogram were performed on October 19, 1978. These diagnostic procedures revealed two herinated discs at L-4 and L-5. Appellee Leal was operated on for the removal of the discs on June 14, 1979. Appellee Leal still complains of pain and the inability to use her body as she did prior to the accident. It appears from the medical testimony that appellee Leal will suffer from these disabilities the rest of her life. Considering all of the evidence in the light most favorable to the jury award we reach the conclusion that the jury's verdict is amply supported by the evidence. Dover Corp. v. Perez, 587 S.W.2d 761 (Tex.Civ.App.-Corpus Christi 1979, writ ref'd, n.r.e.); Texas Steel Co. v. Recer, 508 S.W.2d 889 (Tex.Civ.App.197...