Texas Health Enterprises, Inc. v. Krell

• Decision Date: 19 March 1992
• Docket Number: No. 13-91-288-CV,13-91-288-CV
• Citation: Texas Health Enterprises, Inc. v. Krell, 828 S.W.2d 192 (Tex. App. 1992)
• Parties: TEXAS HEALTH ENTERPRISES, INC., d/b/a Sun Valley Health Care Center, Appellant, v. Judith Marie KRELL, Appellee.
• Court: Texas Court of Appeals

Page 192

828 S.W.2d 192

TEXAS HEALTH ENTERPRISES, INC., d/b/a Sun Valley Health Care Center, Appellant, v. Judith Marie KRELL, Appellee.

No. 13-91-288-CV.

Court of Appeals of Texas Corpus Christi.

March 19, 1992.

Rehearing Overruled April 30, 1992.

Dan S. Boyd, Stephen Carlin, Johnson & Gibbs, Dallas, Frank E. Weathered, Dunn, Cason & Weathered, Corpus Christi, for appellant.

Frank Costilla, Carter C. White, Ed Stapleton, Costilla & Stapleton, Brownsville, for appellee.

Before BISSETT, ¹ SEERDEN and HINOJOSA, JJ.

OPINION

BISSETT, Justice (Assigned).

This appeal arises from a common-law action brought by Judith Marie Krell ("Mrs. Krell") against Texas Health Enterprises, Inc., d/b/a Sun Valley Health Care Center ("Texas Health") to recover damages for personal injuries sustained while she was working for Texas Health, which was not a subscriber to Worker's Compensation Insurance.

The case was tried to a jury which found that Texas Health's negligence proximately caused the incident in which Mrs. Krell was injured. The jury awarded Mrs. Krell actual damages in the amount of $823,835 and exemplary damages in the amount of $500,000. Texas Health's motions for judgment notwithstanding the verdict and for new trial were overruled. We affirm the trial court's judgment.

Mrs. Krell alleged that on October 23, 1989, while in the course and scope of her employment as a nurse's aide at Texas Health Sun Valley Care Center, in Harlingen, Texas, she slipped and fell in a puddle of water which had accumulated in the Center's A-wing hallway floor where she was required to walk. She claimed that the water accumulated due to leakage or overcondensation from a ceiling air conditioning unit and presented a hazardous work condition and a danger to anyone who might walk through the hallway. The pleadings state that she was unaware of the dangerous nature of the condition created on the floor, and that she suffered serious and disabling injuries to her back and other parts of her body when she fell.

Mrs. Krell further alleged that Texas Health was negligent in 1) creating an unreasonably dangerous condition on the floor, 2) allowing an unreasonably dangerous condition to exist on the floor, 3) failing to adequately maintain the hallway in a clean fashion, free of water on the floor, 4) failing to place visible floor stand signs or other warning to identify the unreasonably dangerous condition on the floor, 5) failing to repair the leaking air conditioning unit, 6) recklessly and knowingly failing to repair the leaking air conditioning unit, 7) failing to adequately inspect and perform preventive maintenance on the air conditioning unit, 8) recklessly and knowingly failing to adequately inspect and perform preventive maintenance on the air conditioning unit, 9) failing to clean up the water coming from the washroom where dirty linen was rinsed, and 10) failing to provide a safe place to work.

On the morning of her injury, Mrs. Krell had just finished shaving a patient, and had left the room to get a towel off a linen cart to wipe off the patient's face. When returning to the patient's room, she slipped in a puddle of water which had accumulated on the floor. She described the actual fall as occurring when her right foot flew out from underneath her, causing her to land on her left knee. She felt a "real bad twisting and popping." She did not "feel a great deal of pain right away," but that within a short time she knew "something was wrong."

Mrs. Krell testified that she had seen water in that location before on several occasions, and that she had previously reported it to housekeeping. She stated that the water was leaking from an air conditioning duct in the ceiling, that she had seen water "pouring out of the vent," and that she also reported the leak to Rene Garcia, the maintenance supervisor, one or two weeks before the accident. She further testified that Garcia told her he would do something about it, but he did not fix the leak.

Texas Health presents sixteen points of error. It contends in its first and second points that the trial court erred in submitting its definition of negligence in its charge to the jury and in refusing to submit Texas Health's requested definition of negligence.

REQUESTED DEFINITION

Counsel for Texas Health filed with the district clerk prior to the submission of the charge to the jury, a written request that the following question and definitions be submitted to the jury:

QUESTION NO. 1:

Do you find from a preponderance of the evidence that the negligence, if any, of Texas Health was a proximate cause of the injuries sustained by Judith Krell?

"Negligence" with regards to Texas Health means either (1) the failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier knows about or in the exercise of ordinary care should have known about, or (2) the failure to provide a reasonably safe place to work.

"An unreasonable risk of harm" is one in which there is a sufficient probability of a harmful event occurring that an ordinary prudent person would have foreseen that it or some similar event is likely to happen.

Answer "Yes" or "No."

The trial court submitted the following question on the issue of liability in its charge to the jury:

QUESTION 1

Was the negligence, if any, of Texas Health a proximate cause of the occurrence in question?

The jury answered "yes."

The trial court defined the word "negligence" in the general instructions and definitions set out in its charge to the jury as follows:

"NEGLIGENCE" with reference to the conduct of Texas Health means the failure to use ordinary care of the employees of Texas Health other than Mrs. Krell; that is to say, failure to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

With respect to the charge given by the trial court, the statement of facts reveal the following objections made by counsel for Texas Health and the court's comments and rulings:

Counsel: Your Honor, in the Corbin charge we would object to the definition of negligence. It's not incorrect statements of the law, Your Honor, but when it's used in conjunction with Issue No. 1--

The Court: Well, we're not going on the Corbin now. The plaintiff doesn't want it.

Counsel: If I may have just a moment, Your Honor.

Our first objection, Your Honor, to the charge the Court will use is there is a variance between the pleadings and the proof. The pleadings here involve premises liability and the failure to maintain a reasonably safe place to work. In the charge, Your Honor, in regards to Question No. 1, the jury could find negligence without the requisite definitions involving failure to maintain a safe place to work and the conditions which caused an unreasonable risk of harm, and also, that we knew or should have known about the unreasonable risk of harm. We object, Your Honor, to the extent that this is a direct comment on the weight of the evidence.

In regards to Question No. 1, I would further object in that it fails to contain all the material elements of the claims of the plaintiff.

* * * * * *

In addition to these objections, Your Honor, we have submitted our proposed charges to the Court. We would ask that those be used by the Court, Your Honor.

THE COURT: Objections be overruled. Requests for issues, except for those given, will be denied.

Mrs. Krell contends that Texas Health failed to preserve error to the definition of negligence submitted by the trial court, and asserts that the objection stated by Texas Health is not the same as that which it now raises on appeal. The first point of error reads:

The trial court erred in submitting its definition of negligence; in refusing to submit THE'S (Texas Health's) requested definition of negligence; in rendering judgment; and in overruling the motion for judgment n.o.v. because negligence was erroneously defined.

The second point of error reads:

The trial court erred in overruling the motion for new trial because negligence was erroneously defined.

This Court stated in Wright Way Constr. Co. v. Harlingen Mall Co., 799 S.W.2d 415, 419 (Tex.App.--Corpus Christi 1990, writ denied) that, with respect to the refusal to submit a requested instruction, the appellant must 1) tender in writing a requested instruction prior to submission, 2) make a specific objection to the refusal to incorporate the requested instruction in the charge, and 3) secure a ruling from the court.

In the instant case, the record does not show that the requested definition of "negligence" was ever presented to the trial court for a ruling thereon, nor does the record show that the trial judge endorsed it "refused," or signed it officially. See Tex.R.Civ.P. 276, which states that upon presentment of a requested definition, (and the trial court refuses the same) the trial judge "shall endorse thereon "Refused," and sign the same officially." According to the statement of facts, counsel for appellant, in his objection to the charge, did not specifically refer to the requested definition of the word negligence, and while counsel did tell the court "we have submitted our proposed charges to the court ... we would ask that these be used by the court," there is no showing in the record that requested Question No. 1, which included the requested definition of negligence, was ever formally presented to the court for ruling. The word charge and the trial court's overruling the objection and denying "requests for issues" is not in compliance with the clear requirements of Rule 276, which we consider to be mandatory. Since there was no endorsement "refused" on the requested Question No. 1 and its accompanying definition of "negligence," error has not been preserved for appellate review. Templeton v. Unigard Sec. Ins....