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Metropolitan Transit Authority of Harris County v. Brooks

Court of Appeals of Texas, First District

February 22, 2018

METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS, Appellant/Cross-Appellee
v.
BEVERLY BROOKS, Appellee/Cross-Appellant

         On Appeal from the 269th District Court Harris County, Texas Trial Court Case No. 2013-19862

          Panel consists of Justices Jennings, Massengale, and Caughey.

          MEMORANDUM OPINION

          TERRY JENNINGS JUSTICE.

         Appellant/cross-appellee, Metropolitan Transit Authority of Harris County, Texas ("METRO"), challenges the trial court's judgment, entered after a jury trial, in favor of appellee/cross-appellant, Beverly Brooks ("Brooks"), in her suit against it for negligence, vicarious liability, and negligent hiring, training, supervision, retention, entrustment, and undertaking. In one issue, METRO contends that the trial court erred in denying its new-trial motion, made on the ground that Brooks had made an improper jury argument, resulting in "an improper judgment." In her sole cross-point, Brooks contends that the trial court erred in not including an award of post-judgment interest in its final judgment.

         We modify the trial court's judgment and affirm as modified.

         Background

         In her first amended petition, Brooks alleged that while riding in one of METRO's buses, the bus driver "was negligent in the operation of . . . [the] bus and proximately caused a sudden stop, throwing [Brooks] from her seat, causing her to sustain personal injuries requiring surgery and other damages." Brooks asserted claims against METRO for negligence, vicarious liability for its driver's negligence in operating the bus at the time of her injuries, and negligent hiring, training, supervision, retention, entrustment, and undertaking in regard to the driver. Brooks sought damages for "[m]edical expenses, " "[p]hysical pain and mental anguish, " "[p]hysical impairment, " "[d]isfigurement, " and "[l]ost wages."

         In its second amended answer and affirmative defenses, METRO generally denied "all matters pleaded" by Brooks and asserted the affirmative defenses of sovereign immunity, statutory limitation of money damages pursuant to the Texas Tort Claims Act, [1] and "emergency" in regard to the actions of its driver in "applying the brakes of the METRO [b]us."

         At trial, METRO offered into evidence, without objection, four "courtesy cards" that had been filled out by bus patrons who had been on the bus at the time of the accident. In the courtesy cards, METRO asked, "Whose Fault Was the Accident?" And all four patrons answered that the accident was caused by a driver who cut in front of the bus, requiring the bus driver to suddenly stop. In response to the admission of the courtesy cards, Brooks offered into evidence affidavits from two of the bus patrons, Mr. Smith and Ms. Rodgers, (the "Smith and Rodgers affidavits") in which they allegedly contradicted the statements that they had made in the courtesy cards. The trial court excluded the affidavits as hearsay because Brooks attempted to introduce them through one of her expert witnesses, Roger Allen. Nonetheless, Allen proceeded to testify, without objection, as follows:

[Brooks's Attorney]:
Q. One of the statement -- one of the witness statements you reviewed was from a Vincent Smith; is that correct?
A. True.
Q. What did Vincent Smith say about how he understood the bus was cut off?
A. On the courtesy card, it's -
Q. I'm talking about -
A. Oh, the affidavit?
Q. I'm talking about what is your understanding about how he understood the bus was cut off? Did he see the bus get caught off?
A. No. He said that, according to his affidavit, that the driver told him that ...

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