HOUSTON – A Texas appeals court has upheld a lower court’s decision to refuse a new trial on the subject of additional damages for past physical pain, impairment and mental anguish, to a man who won a jury verdict of more than $111,000 in a premises liability, slip-and-fall case.
On July 30, Court of Appeals for the First District of Texas justices Gordon Goodman, Sarah Beth Landau and Richard Hightower unanimously upheld the 234th District Court of Harris County, Texas’s ruling, in Edward Canterbury’s action versus Luby’s, Inc.
Hightower wrote the Court’s opinion in this case.
“Appellant Edward Canterbury sued appellee Luby’s, Inc. for premises liability, alleging that he was injured as a result of a slip-and-fall in one of its restaurants. The case was tried to a jury, which apportioned 51% of the liability to Luby’s and awarded Canterbury damages for (1) future physical pain and mental anguish, (2) past loss of earning capacity, (3) future physical impairment and (4) past medical care expenses. The trial court rendered judgment on the verdict, ordering that Canterbury recover from Luby’s $111,864.65, which included 51% of the total damages awarded by the jury and pre-judgment interest. Canterbury moved for a new trial on the ground that the jury’s failure to award any damages for past physical pain and mental anguish or past physical impairment was against the great weight and preponderance of the evidence,” Hightower said.
“The motion for new trial was denied by operation of law. Canterbury now argues on appeal that the trial court erred in failing to grant his motion for new trial challenging the jury’s finding of zero damages for (1) past physical pain and mental anguish and (2) past physical impairment. We conclude that the jury’s verdict was not against the great weight and preponderance of the evidence, and, thus, the trial court did not err in denying the motion for new trial by operation of law. Accordingly, we affirm.”
According to Hightower, the parties “presented conflicting evidence regarding what portion, if any, of Canterbury’s past physical pain and mental anguish was caused by his fall at Luby’s.”
“Dr. [David] Crumbie testified and provided medical records describing the nature of Canterbury’s injuries. He testified that, as Canterbury’s treating physician, he treated Canterbury both before and after the fall at Luby’s. He performed two surgeries on Canterbury after the fall, and he testified that the fall caused or exacerbated the injuries to Canterbury’s shoulders. Canterbury also points to his own testimony and testimony of friends and colleagues regarding his fall and his injuries, including his testimony that he had recovered from his pre-fall shoulder surgery and that the fall caused the pain in both his left and right shoulders. But this evidence was not uncontroverted” Hightower stated.
“Luby’s presented the testimony of Dr. Edelstein, who testified that the injuries to Canterbury’s shoulders were not caused by the fall, but were the result of chronic conditions. Dr. Edelstein testified that it appeared the tear in Canterbury’s left shoulder had been there ‘for a while.’ Canterbury’s medical records reflected that he had surgery on his right shoulder before the fall. Less than two weeks before he fell, Canterbury complained of pain in both shoulders, rating his overall pain at 7 out of 10. The video of Canterbury’s fall showed him landing on his right side with both arms down at his sides. Dr. Edelstein testified that the fall as shown on the video would not have caused the injuries as diagnosed and treated by Dr. Crumbie.”
Hightower said that “given this conflicting testimony about the cause of Canterbury’s injuries, we cannot conclude that the jury’s failure to award damages for this category is against the great weight and preponderance of the evidence” – and added that “regarding evidence unique to the category of Canterbury’s past physical impairment, the evidence again conflicted regarding how much impairment, if any, was due to Luby’s negligence.”
“Canterbury presented his medical records from Dr. Crumbie’s treatment of him after the fall. Those records document impairments such as weakness and limitations to his range of motion. Dr. Crumbie testified that Canterbury required physical therapy after his two post-fall surgeries. Dr. Crumbie also determined that Canterbury was not able to work for several months following the June 5, 2017 fall and, upon his return to work, was restricted from lifting. Canterbury also points to testimony of friends and coworkers that he could not lift things, either at work or at home, like bags of dog food or luggage. Canterbury himself testified that, after the fall, he was unable to raise his arms, could not use tools he used to use, and could not engage in the same tasks as he did before the fall. For example, he testified that he could not walk his dogs because they would pull at his shoulders,” Hightower stated.
“Canterbury argues that Dr. Edelstein failed to controvert the evidence of his past physical impairment. However, Luby’s points to the medical records of Canterbury’s condition before the fall and to Dr. Edelstein’s testimony, described above. The jury could have credited this evidence in concluding that Canterbury’s injuries, and thus any impairment, were caused by chronic conditions and not by his fall at Luby’s. While Canterbury presented evidence that he fell and subsequently had surgery on both of his shoulders following the fall, it was the jury’s role as the fact-finder to determine if the fall caused the complained-of impairment.”
Once again, the appellate court found that when “considering all of the evidence on this category, including the conflicting medical evidence and testimony from Dr. Crumbie and Dr. Edelstein, the jury’s finding of zero damages for past physical impairment attributable to Luby’s negligence is not against the great weight of the evidence.”
While Canterbury argued that “it was fatally inconsistent and reversible error’ to award zero damages for past physical pain and mental anguish and for past physical impairment while simultaneously awarding damages for future physical pain and mental anguish and for future physical impairment”, the Court found “that the jury charge did not define the distinction between past and future damages, nor did it define the particular categories of physical pain and mental anguish or physical impairment.”
“The charge instead instructed the jury to determine the amount of money that would compensate Canterbury ‘for his injuries, if any, that resulted from the occurrence in question,’ stating specifically that the jury should ‘not include any amount for any condition existing before the occurrence in question, except to the extent, if any, that such other condition was aggravated by any injuries that resulted from the occurrence in question.’ The charge further instructed the jury that it should ‘not award any sum of money on any element if [it had] otherwise, under some other element, awarded a sum of money for the same loss.’ Furthermore, in his closing argument, Canterbury’s attorney argued to the jury that Canterbury’s remaining ‘golden years’ were worth more than his past years. The attorney requested that the jury award higher amounts for future damages. This argument provides further context for the jury’s allocation of damages here,” Hightower said.
“The jury charge in this case ‘permitted the jury to make its own determination of how to categorize and compensate the losses suffered’ by Canterbury. As discussed above, the jury’s findings on the categories of past physical pain and mental anguish and past physical impairment were not against the great weight and preponderance of the evidence. Neither party challenges the sufficiency of the evidence on the remaining categories. Because we have concluded that the jury’s findings were not against the great weight and preponderance based on evidence unique to each category, our analysis ‘should end there.’ We conclude that the jury’s damages findings here were not against the great weight and preponderance of the evidence. Accordingly, the trial court did not abuse its discretion in denying Canterbury’s motion for new trial by operation of law. We thus overrule Canterbury’s issues on appeal.”
Court of Appeals for the First District of Texas case 01-22-00799-CV
234th District Court, Harris County, Texas case 2017-57050
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at: nick.malfitano@therecordinc.com