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Brownsville Public Utilities Board v. Vasquez

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

February 22, 2018

BROWNSVILLE PUBLIC UTILITIES BOARD, Appellant,
v.
ROBERT VASQUEZ, Appellee.

         On appeal from the 444th District Court of Cameron County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Benavides

          MEMORANDUM OPINION

          ROGELIO VALDEZ Chief Justice

         Appellant Brownsville Public Utilities Board ("PUB") appeals from a judgment based on a jury verdict in favor of appellee Robert Vasquez. By four issues, PUB contends that the evidence is insufficient to support a finding that the incident at issue and resulting injuries were foreseeable or to support the jury's award of certain damages. We affirm.

         I. Background[1]

         On May 11, 2011, while stopped at a red light, Vasquez heard a loud noise and "blacked out" or went unconscious. Luis S. Juarez, a Brownsville police officer, responded to the incident and wrote in his report the following: "Unknown how one of the ceramic fixtures or spheres that are used in the telephone posts to attach the power lines had exploded." Emergency personnel transported Vasquez to the hospital where he was treated for a laceration to his face, receiving thirty stitches, and a skull fracture. Vasquez was released from the hospital a few hours later.

         Vasquez sued PUB, claiming that PUB had control over the utility line that caused his injuries, that PUB "had a duty to exercise the degree of care that a reasonably careful person would use to avoid harm to others under circumstances [like] those described, " and that PUB's negligence proximately caused his damages and injuries. A jury trial was held. At trial, a PUB employee testified that at the time of the incident, PUB was on notice that it had not rained in Brownsville and that terminators often fail when there are drought conditions. PUB's expert witness testified that terminators will undeniably fail, there is no denying that terminators fail, and that if someone is within the field where the shrapnel discharges, there is a possibility that the shrapnel can hit the person.

         After hearing the evidence, the jury found that PUB's negligence proximately caused the occurrence in question and the jury awarded Vasquez $2, 000 for loss of past earnings, approximately $8, 000 for medical expenses, $15, 000 for disfigurement in the past, $15, 000 for disfigurement that, in reasonable probability, Vasquez will sustain in the future, $60, 000 for physical pain in the past, $40, 000 for physical pain that, in reasonable probability, Vasquez will sustain in the future, $40, 000 for mental anguish in the past, and $40, 000 for mental anguish that, in reasonable probability, Vasquez will sustain in the future. This appeal followed.

         II. Standard of Review

         In a legal sufficiency review, we review the evidence in the light most favorable to the verdict, crediting any favorable evidence if a reasonable fact finder could and disregarding any contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 821-22 (Tex. 2005). The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." Id. at 827. In a factual sufficiency review, we examine all the evidence in the record and if the finding is so against the great weight of the evidence as to be clearly wrong and unjust, we will reverse. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam).

         A no-evidence point will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); see City of Keller, 168 S.W.3d at 810. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

         The elements of negligence are a legal duty, breach of that duty, and damages proximately caused by that breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). "The two elements of proximate cause are cause in fact (or substantial factor) and foreseeability" which "cannot be satisfied by mere conjecture, guess, or speculation." Id. at 798-99.

         III. Foreseeability [2]

         By its first issue, PUB contends that "[t]he negligent acts and omissions, if any, of [PUB] as established by the evidence presented at trial were not such that it would have been foreseeable that the incident at issue and resulting injuries to [Vasquez] were likely to occur, thereby negating the existence of any legal duty owed to [Vasquez] and breached by [PUB]." Vasquez responds that the "evidence established that the general danger rather than the exact sequence of events, was foreseeable when the evidence is viewed in the light most favorable to the verdict."

         The evidence is sufficient to support foreseeability if the plaintiff establishes that the defendant should have anticipated the dangers that its negligent act or omission created for others. Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 590 (Tex. App.-Houston [14th Dist.] 2015, pet. denied). "Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable, " id., and "that a person of ordinary intelligence should have anticipated the ...


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