Schindler Elevator Corp. v. Anderson
| Citation | 78 S.W.3d 392 |
| Decision Date | 16 August 2001 |
| Docket Number | No. 14-98-01286-CV.,14-98-01286-CV. |
| Parties | SCHINDLER ELEVATOR CORPORATION, Appellant, v. Scott ANDERSON and Diana Anderson, Individually and as Next Friends of Scott "Scooter" Anderson, Appellees. |
| Court | Court of Appeals of Texas |
David B. Weinstein, David R. Tippetts, David J. Healey, Lisa S. McCalmont, Houston, for appellant.
George Chandler, Lufkin, Sam W. Cruse, Jr., Houston, Michael A. Hatchell, Tyler, Price Ainsworth, Austin, Scott Kidd, Houston, for appellees.
Panel consists of Justices DRAUGHN, SEARS, and LEE.*
In this appeal, Schindler Elevator Corporation challenges a judgment in favor of Scott and Diana Anderson and their son, "Scooter," for injuries they received when Scooter's foot lodged in an escalator, which tore off his foot's skin and three toes. After a jury awarded the Andersons $16.97 million, the trial court remitted the award to $5.4 million. Schindler appeals in thirteen points of error, contending (1) the evidence of proximate cause is both legally and factually insufficient; (2) the evidence supporting the jury's apportionment of liability is both legally and factually insufficient; (3) the statute of repose barred submission of strict liability questions; (4) the trial court improperly phrased a statute of repose question; (5) it was error to
submit jury questions about post-sale strict products liability; (6) the escalator was not the producing cause of Scooter's accident; (7) and (8) there is legally and factually insufficient evidence for failure to warn at the time the escalator was installed and at the time of the accident; (9) the trial court erred in admitting expert testimony; (10) the trial court erred in admitting an audio-muted episode of "Dateline" in which escalator side guards were demonstrated; (11) the trial court erred in permitting incurable, improper jury argument; (12) the evidence supporting Scooter's future mental anguish and his father's past loss of consortium is both legally and factually insufficient; and (13) the evidence supporting the jury's damage award of $16.97 million is legally and factually insufficient. The Andersons bring one crosspoint, contending that the trial court erred in remitting past and future medical costs, future pain and mental anguish, and Scott Anderson's loss of consortium.
We affirm in part and reverse and remand in part because: (1) the trial court did not err in admitting the portion of the muted Dateline video; (2) the trial court did not err in finding the Andersons' expert qualified; (3) Schindler did not preserve error to complain about the reliability of this expert's testimony; (4) one of the Andersons' rebuttal arguments was permissible, given the evidence, and required an objection to preserve any error; (5) the other argument, though improper, did not fall into the narrow category of incurable argument; (6) there is sufficient evidence of proximate cause; (7) there is inadequate briefing to address a sufficiency challenge to the jury's apportionment of liability; (8) there is sufficient evidence of Scooter's future pain and mental anguish and Mr. Anderson's loss of consortium; (9) the amount of damages awarded was supported by the evidence; (10) the trial court erred in remitting past and future medical costs, future pain and mental anguish, and Mr. Anderson's loss of consortium; and (11) issues regarding strict liability are moot. Because of our conclusions, we reverse and remand that portion of the judgment that remitted the awards for Scooter's past and future medical costs, future pain and mental anguish, and Mr. Anderson's past loss of consortium, and we affirm the remainder of the judgment. We remand for calculation of the damages in accordance with this opinion.
One Saturday afternoon, four-year-old Scooter Anderson accompanied his father to his office in a downtown Houston skyscraper. When leaving the building, Mr. Anderson and Scooter rode down an escalator, which was maintained by Schindler under a contract with the building's owner.1 Scooter was standing beside his father, one step behind, or against the side of the escalator as he hung over its handrail, when his tennis-shoe-clad foot came in contact with the side skirt of the escalator.2 In an instant, his foot was dragged into a widening gap between the escalator step and the side skirt, which entrapped his foot as the escalator continued its downward movement. This shearing movement "degloved" Scooter's foot, dragging off toes and skin. Scooter was rushed to the hospital, where doctors amputated three of his toes, inserted a pin into a fourth broken toe, and engrafted skin in five operations to save his two remaining toes and the ball of his foot.
The Andersons learned that foot entrapments on escalators, while not often as severe as Scooter's, have been long-known to Schindler and the escalator industry.3 Entrapment is the second most common accident on escalators, after falls, and occurs some 1,000 times annually. For children especially, who have small feet and often wear rubber shoes, entrapment is an inherent risk of escalators.4
There are several ways to battle the likelihood of entrapment. The gap between the steps and the skirts of the escalator must be narrow, an adjustment made after installation by moving the skirts. The sides can be lubricated with silicon spray to lessen friction. The skirts can be made of a material that is less likely to give or deflect. Further, escalators can be fitted with a side-step safety plate, which affixes to the side of the step and helps to fill the gap between the step and the skirt. Steps can be painted with footsteps in the center and warning stripes along the edges to encourage proper standing positions. Raised cleats exist along the edges of some escalator steps to make it less comfortable to stand near the edges. Larger, more explicit warning signs have also been discussed in escalator industry safety meetings.
For this escalator, however, Schindler did not install the safety devices, paint, or provide more explicit warnings. Instead, Schindler relied on gap maintenance and lubrication. The escalator was a Westinghouse model, designed to run with a gap of 1/16 to 1/8 of an inch.5 Schindler generally operated it with 3/16 of an inch gap on either side of the steps, the widest amount permitted under industry standards. After Scooter's accident, however, one expert measured gaps of up to 1/4 inch on the escalator. Although Schindler recommended lubrication at least once a month, and its Houston technicians preferred twice a month, work records showed that the escalator had not been lubricated from between forty-two days to six months. Further, the year before Scooter's entrapment, the building owner dedicated excess funds to upgrading the escalators. Instead of making the escalators safer, Schindler used the money to make the escalators quieter.
Evidence also showed that Schindler, in the 1980s, acknowledged that its escalators could be considered "unreasonably dangerous." The president of its American operations recommended buying side-step safety plates for all its escalators. However, Schindler reneged on a contract to buy side-step safety plates created by Carl White, a long time figure in the escalator and elevator industry.
Given this evidence and more, the jury in this case, by a margin of ten to two, found Schindler negligent, grossly negligent, and strictly liable for design and marketing defects. It apportioned 90% of the fault for the accident to Schindler and 10% to Mr. Anderson. It awarded a total of $16.97 million in actual damages and $100,000 in punitive damages. The trial court, using a mathematical formula, then remitted the actual damages to $5.4 million (net of reduction for apportionment of fault, settlement credits, and prejudgment interest) and reduced the punitive damages to zero.
Schindler's appellate issues address almost all portions of the trial. Thus, we first address the issues for which our determination affects later issues: admission of the Dateline videotape and expert testimony. We then address evidence of proximate cause, jury argument, and evidence of damages (including whether certain damages should have been remitted).
In its tenth issue, which we address first, Schindler appeals that the trial court erred in admitting a muted videotape of the television show "Dateline." Schindler contends that the video was irrelevant, unfairly prejudicial, improperly bolstered expert credibility, and aroused jury speculation about the "enormity" of escalator entrapments. Of these objections, it did not raise bolstering at the trial level. We address only the relevancy and unfair prejudice, as we consider the jury's perception of the extent of escalator problems to be part of the latter objection.
From the record, it is apparent that the trial court allowed the Andersons to play only a portion of the Dateline story. In this portion, the Andersons' expert, Carl White, rides down an escalator fitted with the side-step safety plates that he invented. In the videotape, he also demonstrates how the plate attaches to the escalator steps. Relevant evidence is that which makes the "existence of any fact that is of consequence to determination of the action more probable or less probable than it would be without the evidence." TEX.R.EVID. 401. During trial, Schindler repeatedly contested whether Mr. White's side-step safety plates worked in their use on public escalators. It insinuated that when used, Mr. White's plates cause the escalator steps to crash and lock. Thus, the muted videotape was relevant to show the plates at work.
As to the objection that the videotape was...
To continue reading
Request your trial
-
Madeksho v. Abraham, Watkins, Nichols Etc.
...[1st Dist.] 2002, pet. ref'd) (Jennings, J., concurring in denial of rehearing en banc); Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 424 (Tex.App.-Houston [14th Dist.] 2002), jdgm't vacated without reference to the merits due to settlement by the parties, No. 02-0426, (Tex. May 22,......
-
Roberts v. Williamson
...injury cases, but some courts of appeals have assumed that such a claim is viable. See Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 414 (Tex.App.-Houston [14th Dist.] 2001, pet. filed); Enochs v. Brown, 872 S.W.2d 312, 322 (Tex.App.-Austin 1994, no writ); see also Parkway Hosp., Inc......
-
Golden Eagle Archery, Inc. v. Jackson
...also Mo. Pac. R.R. Co. v. Handley, 341 S.W.2d 203, 205 (Tex.Civ.App.-San Antonio 1960, no writ). 32. See, e.g., Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 412-13 (Tex.App.-Houston [14th Dist.] 2001, judgm't vacated) (holding that temporary injuries supported award for past physica......
-
In re v.
...has been described as “exacting,” and the failure to follow it raises “fundamental” issues. Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 423–24 (Tex.App.-Houston [14th Dist.] 2001), judgm't vacated without reference to the merits due to settlement by the parties, No. 02–0426, 2003 T......
-
Photographs, slides, films and videos
...effect; they were, therefore admissible as “other crimes” evidence to show modus operandi. Schindler Elevator Corp. v. Anderson , 78 S.W.3d 392. Relevant photographic evidence is generally admissible unless it is calculated to arouse the sympathy, prejudice, or passion of the jury, as oppos......
-
Photographs, Slides, Films and Videos
...McKinney v. Brandywine Court Condominium Council, Inc. , 830 A.2d 411. (Del.Super., 2003). Schindler Elevator Corp. v. Anderson , 78 S.W.3d 392. Relevant photographic evidence is generally admissible unless it is calculated to arouse the sympathy, prejudice, or passion of the jury, as oppos......
-
Photographs, slides, films and videos
...McKinney v. Brandywine Court Condominium Council, Inc. , 830 A.2d 411. (Del.Super., 2003). Schindler Elevator Corp. v. Anderson , 78 S.W.3d 392. Relevant photographic evidence is generally admissible unless it is calculated to arouse the sympathy, prejudice, or passion of the jury, as oppos......
-
Photographs, slides, films and videos
...McKinney v. Brandywine Court Condominium Council, Inc. , 830 A.2d 411. (Del.Super., 2003). Schindler Elevator Corp. v. Anderson , 78 S.W.3d 392. Relevant photographic evidence is generally admissible unless it is calculated to arouse the sympathy, prejudice, or passion of the jury, as oppos......