Norton v. Martin
| Decision Date | 27 November 1985 |
| Docket Number | No. 04-84-00476-CV,04-84-00476-CV |
| Citation | 703 S.W.2d 267 |
| Parties | Nola NORTON, Appellant, v. Roy L. MARTIN d/b/a Roy L. Martin & Associates, Appellee. |
| Court | Texas Court of Appeals |
James R. Warncke, San Antonio, for appellant.
John Milano, San Antonio, for appellee.
Before ESQUIVEL, BUTTS and REEVES, JJ.
This is an appeal from a take-nothing judgment rendered in favor of appellee, Roy L. Martin d/b/a Roy L. Martin & Associates (Martin), and against appellant, Nola Norton (Norton). Norton sued Martin, the owner of South Park Mall; sued Bear Audio Visual, Inc., a company which provided sound equipment; sued David Cruz, d/b/a Image Builders; and sued Command Post, Inc., d/b/a Command Performance, My Child's Hair, and other assumed names, seeking damages in excess of $10,000.00 for personal injuries which she suffered when she allegedly tripped and fell on an electrical wire which had been negligently placed upon the floor of South Park Mall.
On June 9, 1983, Martin filed an original answer which contained a general denial, a prayer for indemnity and contribution, and alleged that Norton was guilty of various acts or omissions which were negligence. The other three co-defendants filed similar answers. Various parties made answers to interrogatories. Norton filed a non-suit of Command Post on April 23, 1984. Martin, Image Builders, and Bear Audio Visual filed a motion to dismiss their cross-action against the defendant, Command Post, and the court ordered the dismissal. Norton amended his original petition on May 11, 1984, thereby deleting Command Post as a defendant.
The record reflects that on July 10, 1982, Norton and her six-year-old granddaughter visited South Park Mall for a children's program being held by Command Post and conducted by David Cruz d/b/a Image Builders, in the common area of the shopping center. On arriving at the Mall, Norton and her granddaughter went to the ladies room. Norton allowed her granddaughter to leave the restroom and wait for her in the center court area where the children's program was to take place. Norton left the restroom and proceeded to look for her granddaughter. As Norton approached the area where the children's program was being held, she either tripped over or collapsed near some speaker wire in use by David Cruz d/b/a Image Builders for the children's program. Norton was picked up by her husband who eventually took her to a local hospital. She was diagnosed as suffering a fractured hip which necessitated corrective surgery involving the insertion of a metal pin. At the close of Norton's case, the trial court granted instructed verdicts in favor of Bear Audio Visual, Inc. and David Cruz d/b/a Image Builders.
Special issues were submitted to the jury on Norton's contention that, while a business invitee on the South Park Mall premises, she tripped and fell on an electrical wire negligently placed and/or maintained upon the floor. The jury found that the wire in question did not pose an unreasonable risk of harm. The jury failed to find Norton negligent in failing to keep a proper lookout at the time of the accident. The jury responded to all special issues on damages with the answer "zero."
Based on these findings the trial court entered a take nothing judgment against Norton and in favor of Martin. Norton filed a motion for new trial which was denied after a hearing.
In point of error number one, Norton alleges that the trial court committed prejudicial error in excluding the deposition testimony of the witness Darrell L. Brown, a maintenance employee of Martin. In point of error number two, Norton alleges that the jury's failure to find any damages on the special issues submitted was without evidentiary support.
In determining whether a judgment should be reversed on an error of law by the trial court, this court is bound by TEX.R.CIV.P. 434 which states as follows:
When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.
Provided, first, that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court; and if it appear to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error, provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested.
Provided, second, that if the erroneous action or failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the Court of Appeals, and be such as may be corrected by the judge of the trial court, then the judgment shall not be reversed for such error, but the appellate court shall direct the said judge to correct the error, and thereafter the Court of Appeals shall proceed as if such erroneous action or failure to act had not occurred.
In reviewing the record, the testimony of Mary Holloway, a practical nurse, was that she had no knowledge of any medical problems of her co-worker Norton before the accident. The testimony of Niheli Rose Stewart, daughter of Norton, was that she had no knowledge of any hip problems suffered by her mother prior to the contested incident. Norton's granddaughter, Donna Marie Norton, testified she saw her grandmother after she fell and could not remember many details. Nola Mae Norton testified that she tripped over the speaker wire because the tape used to secure the wire to the floor was not placed correctly. Norton stated that the edge of the tape did not adhere to the floor and her foot was caught under the tape. However, Norton also testified that she was not looking at the floor or where she was going.
The evidence also shows that David Cruz, through his public relations firm, Image Builders, promoted the children's program for "My Child's Hair." David Cruz testified that he contacted Bexar Audio Visual to provide the rental sound equipment, setup and teardown; that Image Builders did no supervision of the setup or teardown, and was approximately forty-five minutes late. Cruz also testified that Donna Marie Norton told him her grandmother Norton was sick. David Cruz further testified that he did not see the speaker wire picked up nor did he see Norton after the show; also, that he did not know who laid the wires.
The trial court considered the deposition of Darrell L. Brown. Deponent Brown was a former maintenance worker for South Park Mall, who was working on the date and time in question. Norton sought to introduce an excerpt from Brown's deposition but the trial court excluded it.
Norton then called Craig Allen, a Bexar Audio Video technician, as an adverse witness. The testimony of Allen revealed that he and his company were responsible for all equipment, wires and tape. Allen testified that mall maintenance personnel, instead of Bexar Audio Video employees, placed and taped the speaker wires; that the reason mall employees were used was because Cruz was late and left Allen with only ten minutes, instead of one hour, to set up the sound equipment. Allen further testified that mall employees taped the speaker wire with three-inch strips of tape laid crossways; that customarily, Bexar technicians placed tape in single strips crossways over speaker wires. Also, Allen testified that Bexar Audio admitted giving up their responsibility for installing speaker wires to South Park Mall employees without properly instructing them in the installation of a sound system; however, Allen inspected the installation of all sound equipment and approved the setup.
Testimony was submitted by deposition as to Norton's injuries. Dr. Jacques Van Ryn, a resident orthopedic surgeon at Wilford Hall Hospital stated that a pre-existing urinary infection and osteoporosis condition did not contribute to the hip fracture she suffered.
Carmen Espinosa, a South Park Mall Merchants' Association member in charge of promotions, stated that Norton mentioned that she was weak and should not have been at the mall.
In support of his point of error number one, Norton argues that the excluded deposition testimony of deponent Brown was admissible as a statement made by an agent or employee of a party. In developing this point of error, Norton's argument consists of three parts.
First, it was error to admit the following testimony of witness Allen:
over the objections to the testimony by Norton.
Second, Norton alleges it was fatal error to exclude the following:
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