Pilgrim's Pride Corp. v. Smoak

134 S.W.3d 880

PILGRIM'S PRIDE CORPORATION and Paul Dixon Link, Appellants v. William A. SMOAK, Appellee.

No. 06-03-00182-CV.

Court of Appeals of Texas, Texarkana.

Submitted April 22, 2004.

Decided May 19, 2004.

Rehearing Overruled June 8, 2004.

Levi G. McCathern, II, C. Brett Stecklein, McCathern Mooty Buffington, LLP, Dallas, Kevin C. Norton, Cantey & Hanger, LLP, Fort Worth, TX, for appellant.

Mark P. McMahon, Blake C. Erskine, Erskine & McMahon, LLP, Longview, TX, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

William A. Smoak was injured in a collision that occurred on Broadnax Street in Daingerfield. Smoak's pickup truck collided with a Pilgrim's Pride eighteen-wheel tractor-trailer rig driven by Paul Dixon Link. Smoak's evidence showed he was traveling westbound on Watson Boulevard, turning right onto Broadnax. The turn onto Broadnax is accomplished by taking a merge lane exit from Watson onto Broadnax. The merge lane from Watson continues independently on Broadnax. Link was traveling eastbound on Watson and turned left, also onto Broadnax. As he entered Broadnax, he immediately moved over into Smoak's right merge lane. When he did so, the eighteen-wheeler collided with Smoak's pickup truck.

Smoak suffered a back injury from the collision that eventually required surgery. He sued Pilgrim's Pride Corporation and Link for his injuries. The jury found Pilgrim's Pride and Link seventy-five percent at fault, and Smoak twenty-five percent at fault. The jury found $50,000.00 in damages for Smoak's past physical pain and mental anguish; $25,000.00 for future physical pain and mental anguish; $37,500.00 for past loss of earning capacity; $200,000.00 for future loss of earning capacity; $100,000.00 for past physical impairment and $100,000.00 for future physical impairment. The jury also found $91,103.93 in damages for past medical care and $25,000.00 for future medical care. The parties stipulated to $3,989.28 in property damage. The trial court took seventy-five percent of the damage award and added prejudgment interest, for a total damage award of $632,761.49.

Pilgrim's Pride and Link (collectively, Pilgrim's Pride) appeal, contending the investigating officer's testimony on causation, and Smoak's economic expert's testimony on loss of earning capacity, were no evidence, and the trial court erred in admitting their testimony. Pilgrim's Pride also contends there was no or insufficient evidence on causation, past and future lost earning capacity, or future medical care, to sustain a judgment.

I. STANDARD OF REVIEW

1. Legal and Factual Sufficiency

In determining a legal sufficiency issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450.

When deciding a legal sufficiency point, in determining whether there is no evidence of probative force to support a jury's finding, we must consider all the evidence in the record in the light most favorable to the party in whose favor the verdict has been rendered, and we must apply every reasonable inference that could be made from the evidence in that party's favor. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). In this review, we disregard all evidence and inferences to the contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). A no-evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002). If we find some probative evidence, we will test the factual sufficiency of that evidence by examining the entire record to determine whether the finding is clearly wrong and unjust.

When considering a factual sufficiency challenge to a jury's verdict, courts of appeals must consider and weigh all the evidence, not just that evidence which supports the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). A court of appeals can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The court of appeals is not a fact-finder. Accordingly, the court of appeals may not pass on the witnesses' credibility or substitute its judgment for that of the factfinder, even if the evidence would clearly support a different result. Ellis, 971 S.W.2d at 407; Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). If we find the evidence insufficient, we must clearly state why the jury's finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

2. Negligence

To prove negligence, the plaintiff must prove that a breach of a duty proximately caused that plaintiffs damages. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). To establish causation in a personal injury suit, a plaintiff must prove that the defendant's conduct caused an event and that this event caused the plaintiff to suffer compensable injuries. Crye, 907 S.W.2d at 499; Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 603 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).

Proximate cause consists of two elements: cause in fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Cause in fact means that the defendant's act or omission was a substantial factor in bringing about the injury, which would not otherwise have occurred. Id. Cause in fact is not shown if the defendant's negligence did no more than furnish a condition that made the injury possible. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995). The second element of proximate cause, foreseeability, requires that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission. Doe, 907 S.W.2d at 478. These elements cannot be established by mere conjecture, guess, or speculation. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980). However, like any other ultimate fact, proximate cause may be established by direct or circumstantial evidence and the reasonable inferences that may be drawn from that evidence. Id. at 903-04.

The trier of fact is usually allowed to decide the issue of causation in cases: (1) when general experience and common sense will enable a layperson fairly to determine the causal relationship between the event and the condition; (2) when scientific principles, usually proven by expert testimony, establish a traceable chain of causation from the condition back to the event; or (3) when probable causal relationship is shown by expert testimony. Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970).

II. INVESTIGATING OFFICER'S TESTIMONY

City policeman Ronald Penny, the investigating officer, testified he arrived at the scene a minute or two after the accident. On arriving, he interviewed Smoak and Link, as well as a witness to the accident, Peggy Bolton. Smoak told Penny the eighteen-wheeler had moved over into his lane as he was merging onto Broadnax. Link told Penny he did not see Smoak until after the accident happened. Bolton told Penny that Smoak attempted to "squeeze in" as the eighteen-wheeler changed lanes. Penny then examined skid marks on the street, which he determined were not braking skid marks, but marks from Smoak's truck as his tire locked when he collided with, and was subsequently dragged by, the eighteen-wheeler. Penny determined the point of impact from those marks to be in Smoak's merge lane, past the end of the median, requiring Link to have crossed a solid white line. After factoring in all those circumstances, Penny concluded Link caused the accident by his inattention in not seeing Smoak and by changing lanes when it was unsafe to do so.

Pilgrim's Pride contends Penny was not qualified to give an opinion regarding how the accident took place and who was at fault. They argue that such testimony was highly prejudicial since Penny was a police officer and that, under TEX.R. EVID. 403, the unfair prejudice of his opinion outweighed its probative value.

1. Preservation of Error

Pilgrim's Pride failed to preserve error on their complaint regarding Penny's qualifications. To preserve an issue for appellate review, the record must demonstrate that (1) the complaint was made to the trial court by a timely request, objection, or motion, which stated the grounds of the objection with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (2) the trial court ruled on the request, objection, or motion either explicitly or implicitly or refused to rule on the request, objection, or motion and the complaining party objected to the refusal. TEX.R.APP. P. 33.1(a). Pilgrim's Pride filed a motion to exclude Penny's testimony, but a ruling on that motion does not appear in the record.

Pilgrim's Pride did object at trial to...