Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 162nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-00763
Justices Lang-Miers, Fillmore, and Stoddart
M. FILLMORE JUSTICE
Stores Texas, LLC (Walmart) appeals the trial court's
judgment on a jury verdict in favor of Dawn Bishop finding
Walmart negligent on a theory of vicarious liability and
awarding damages to Bishop for personal injuries sustained
when a box fell from a shelf in a Walmart store and struck
her on the head. In six issues, Walmart argues: (1) the
evidence was legally insufficient and, alternatively,
factually insufficient to support the jury's finding that
the negligence of Walmart's employee proximately caused
the box to fall from the shelf; (2) the evidence was legally
insufficient and, alternatively, factually insufficient to
support the jury's finding that Bishop's injury was
proximately caused by the box falling on her head, and the
trial court committed reversible error by permitting Bishop
to offer expert testimony when the expert had not been
adequately disclosed and was not a proper rebuttal witness;
(3) the trial court abused its discretion by denying
Walmart's Motion for Leave to File Counteraffidavits
under civil practice and remedies code section 18.001, and
refusing to allow Walmart to present expert witness testimony
at trial on the reasonableness and necessity of Bishop's
medical expenses; (4) the trial court committed reversible
error by submitting an ambiguous question concerning
vicarious liability in the jury charge; (5) the evidence was
factually insufficient to support the jury's damage award
for physical pain, legally and factually insufficient to
support the jury's damage award for mental anguish, and
factually insufficient to support the jury's damage award
for physical impairment; and (6) the trial court committed
reversible error by allowing improper jury argument by
Bishop's counsel. We affirm the trial court's
7, 2012, Bishop went to a Walmart store to shop for curtains.
While on her way to the curtain department, she entered a
clearance section in an area previously occupied by a fast
food restaurant. There is no dispute the clearance section
was open to customers. At trial, Bishop testified there was
no caution sign or other indication the clearance section was
dangerous or posed a risk of injury. Photographs of the
clearance section introduced into evidence depict multiple
adjustable, four to five tiered, metal shelving racks on
wheels, sitting side by side in aisles and along the walls.
The shelves appear full to capacity with stacked merchandise,
some of which is haphazardly arranged. At trial, Bhola
Gajurel, the Walmart employee whose negligence was imputed to
Walmart under a theory of vicarious liability, confirmed the
photographs accurately depicted the clearance section on the
day of the accident.
Dill, the Walmart manager who filled out an incident report
with Bishop immediately after the accident, testified that
Walmart used temporary shelving units on wheels called
"plant racks" in the clearance section. He did not
know whether the wheels on the plant racks were locked.
Unlike merchandise on the general sales floor, which was
arranged and stacked in accordance with company standards and
policies, Walmart "maintain[ed] no policies on how to
set up a clearance section, " and there was no
"rhyme or reason as to how merchandise [was] kept in the
clearance section at Walmart." Dill testified that
falling merchandise is a serious hazard at Walmart stores,
and it is important to train employees concerning the danger
posed by falling merchandise and the proper stacking of
merchandise on the shelves. Dill indicated that unlike the
general sales floor, there is access from either side of the
plant racks in the clearance section.
Dill arrived after the accident, the only other person in the
clearance section with Bishop was Gajurel, who was stacking
items on the shelves. According to Bishop, "[Gajurel]
was back there shelving and moving things on the shelf"
while she was shopping. On the first aisle, Bishop found some
curtains, and proceeded to look for more. As she approached
the second aisle, she "looked down and saw some curtains
that might be what [she] was looking for." Bishop could
see Gajurel's lower body on the other side of the
shelving unit, and she could hear him stocking merchandise.
Bishop testified she "heard him pushing the merchandise
that was in the same place where the [box] was." As she
was bent down looking at curtains on the lowest rack, a box
fell from above and hit her on the back of the head.
"[W]hen the box fell [onto Bishop's head] and [she]
kind of yelled out, " "[Gajurel] came around from
the other side [of the shelf]." Bishop testified,
[H]e came around and he said, I'm sorry and are you hurt.
And I asked him: Did it put a - a cut in my hair? Is my head
And he stood there and helped the - helped me look, and he
said: No, ma'am, it's not any blood there.
And he asked did I need the manager, and I said yes.
indicated she neither touched the shelves in that row prior
to the box falling on her head, nor placed any merchandise
back on any of the shelves in that section. Bishop stated she
did not see Gajurel cause the box to fall because she was
to Bishop, when Dill arrived at the clearance section, he
filled out an incident report with Bishop's assistance,
and asked Bishop to make a customer statement. While Bishop
was standing with Dill in the clearance section filling out
the paperwork, Gajurel moved to the other side of the shelf
from where Bishop and Dill were located. As Bishop was
filling out the paperwork, Gajurel again started shelving
items, and "he pushed something - it was a candle . . .
off the shelf and onto [Bishop], " "hit[ing her]
customer statement Bishop filled out immediately after the
incident was introduced into evidence at trial,
corroborated Bishop's testimony, stating,
While shopping in the clearance isles (sic) for curtains a
heavy box on the top shelf of a cart fell and hit me on my
head. It was a box Cakesickle maker brand Homemade approx 15
Wile (sic) completing this form a glass candle fell on my
incident report also substantiated Bishop's trial
testimony. It described the incident as, "Box fell and
struck customer on head, " and confirmed the incident
caused "Bodily injury, " specifically, "Neck
was hurt." Bishop testified that after leaving the
[She] went home and laid down. [Her] neck had started to get
a little stiff and sore, and [she] thought maybe [she] could
sleep it off, so [she] laid down for about three hours, got
up, told [her] husband [she] wasn't feeling good, and it
was getting worse. . . .
point, Bishop "went to the emergency room,
CareNow." At CareNow, Bishop was diagnosed with a
cervical strain and a head contusion caused by the box
falling on her head. Because she "started to feel worse,
" Bishop returned to CareNow the following day, a
Sunday, then went to her primary care physician, Dr. Michelle
Ho, on Monday. Dr. Ho prescribed physical therapy. Bishop
completed two courses of physical therapy, which
"last[ed] until about January of 2013."
testified that when she walked into Walmart on July 7, 2012,
she did not have any problem with her neck. After the
incident and approximately six months of physical therapy,
"[she] was still in the pain. The pain still didn't
go away, so [she] knew that something else was wrong. It - it
never stopped." Ultimately, Bishop saw a pain management
physician; over a six or seven month period, she received
thirty-four steroid injections in her neck that required
general anesthesia; visited a chiropractor; completed at
least four rounds of physical therapy; was examined and
treated by more than five physicians, including a
neurosurgeon and an orthopedic surgeon; and had cervical
fusion surgery resulting in "two cages, . . . a plate
and six screws in [her] neck." Bishop testified,
I'm still in pain. It - it's still - I have good
days, and I have bad days. The type of work that I do,
sitting at a computer all day, just having to do everyday
things, things that you may not think about until you've
lived that day, now a day for me, when I get up in the
morning and brush my teeth and lean over the sink, that's
painful for me. Taking a shower, that's painful for me.
When I get in the car and I turn right and left, my head
right to left, your body just automatically does it, it just
moves if you're in traffic or something, but then I'm
in pain. So by the time I get to work, I feel like I've
already worked a half a day.
So there's no day for me without pain. I sit here now
with pain. . . . It's always there.
at trial showed Bishop continues to experience pain across
her neck and shoulders, as well as throbbing in her eyes.
Almost four years after the accident, Bishop, upon the
recommendation of her neurosurgeon, still receives physical
therapy, and remains under the care of various doctors.
record indicates Bishop underwent back surgery in 2010 for
degenerative disk disease, but never complained about neck
pain. According to Bishop, she was "pain free" and
had an active lifestyle prior to the accident. She is
employed as an administrative executive assistant. Her job
duties include typing, planning, special projects, and
managerial responsibilities. Outside of work, her everyday
activities prior to the accident consisted of spending time
with her children and grandchildren; hosting dinners at her
house; traveling to Austin to see family; sewing, including
ongoing sewing for a ministry; and attending church
activities, such as workshops. Bishop indicated she no longer
engages in these activities as she used to. She is less
active, mentally alert, and creative because she is "in
pain all the time." The injury "changed [her]
life." Now, she frequently leaves work and goes to bed.
Bishop testified, "[Before the injury] I felt like I was
in total control. I'm not anymore. The pain controls
testified that on the day of the accident, he was employed at
Walmart as a cashier, and while at work was "very, very
sick, so sick that [he] didn't know if [he] could work or
not." He was called to rearrange some of the stock in
the clearance section, items that "had fallen on - from
the places." Gajurel "was barred from lifting heavy
goods, " including heavy boxes. The evidence at trial
showed that Gajurel was not provided training or specific
instruction "on what to do" in the clearance
section or the "dangers associated with falling
merchandise, " because he was a cashier and merchandise
placement is "the responsibility of the stocker."
Gajurel testified he did not "know how or why the box
fell off the shelf, " he was standing with his
"back to Ms. Bishop" and not "on the opposite
side of her at the very same rack when this box fell, "
and he did not hear the box fall. However, a little more than
a week before his trial testimony, Gajurel stated in a sworn
discovery response that he believed Bishop manipulated the
box and caused it to fall. Gajurel further testified he would
be fired if he had caused the box to fall and injure Bishop,
stating, "If I pushed [the box] then the . . . manager
[would] . . . become upset. The manager is going to fire me
because if I hurt my customer, the Walmart customer."
Gajurel also stated he did not "cause any glass candle
to fall in this area on that day."
medical expert, Dr. Raymond Peeples, testified that, in his
opinion based on a review of Bishop's medical records,
Bishop's neck injury was age-related and not caused by
the box falling on her head. Dr. Peeples observed that
Bishop's medical records showed she underwent lumbar
fusion surgery in March 2010 as a result of disk
degeneration, yet "still ha[d] pain in her lower
back" in June 2011. According to Dr. Peeples,
Bishop's lower back pain fifteen months after the lumbar
fusion procedure indicated a "failure of surgery."
In his opinion, "[n]o traumatic anatomy was discovered
after the Walmart event. Findings six months later on
cervical MRI were age-related, normal findings of disk
bulges." Based upon a review of CareNow records, Dr.
Peeples testified Bishop's "scalp showed no lesion.
There was no hematoma." In his opinion, a
"significant blow" would have resulted in
"swelling, discoloration and enlargement, " and
Bishop had "no objective findings of a scalp
abnormality." Because Bishop had "[c]omplaints of
neck pain without findings, " Dr. Peeples opined she
only had "a contusion and strain" as a result of
the box falling on her head. Dr. Peeples characterized
Bishop's headache after the accident as a "[t]ension
headach[e]" which is "frequently brought on by
stress, driving, studying too many hours. That's not a
headache from a blow to the head that should be present
regardless of [one's] activities."
Peeples further testified that because Bishop's medical
records indicated she had "[n]o radiation of pain to
arms or hand" on "the day or two" after the
accident, she therefore showed no symptoms of nerve injury;
and an EMG report on Bishop indicated "there was no
evidence of nerve compression or nerve damage." In Dr.
Peeples' opinion, after the box fell on her head, Bishop
"had symptoms attributed to a strain, " that got
"steadily better, " and then "six months after
the event and a recovery, " Bishop suffered "[n]ew
symptoms" from "a new condition."
cross-examination, Dr. Peeples testified he knew the
standards maintained by the American Academy of Orthopedic
Surgeons for orthopedic expert testimony required orthopedic
surgeons to review all pertinent medical records, including
prior depositions, before rendering any statement or opinion
on the medical or surgical management of the patient.
However, Dr. Peeples admitted he had not read Bishop's
James Stanley, an orthopedic surgeon and one of Bishop's
doctors, testified that in his opinion based on reasonable
medical probability, Bishop's neck injury, which
ultimately resulted in the need for spinal fusion surgery,
was caused by the box falling on her head as she was
"bent forward looking down." Dr. Stanley's
medical notes reflected,
[Bishop] had a box fall on her head and sustained an injury.
That injury required surgery. To my thinking, that spells out
causation . . . .
to Dr. Stanley, because Bishop was looking down when the box
hit her head, "her neck [was] in flexion, " which
"means that the chin is - closer to the chest."
Bishop suffered an "axial ¶exion injury"
because the box fell on her head from above, causing her
"neck to flex, " which "load[ed] the spine.
And flexion . . . is the worst position to load your cervical
spine." Dr. Stanley further testified,
[When] a high school collegiate or professional football
player . . . sustain[s] a catastrophic cervical spine injury
. . . it's almost always in a flexed spine with an axial
load. That's the absolute worst biomechanical position
for your neck to be in.
. . . .
[T]he disk is a circular ligament with a jelly inside. The
jelly is the actual shock absorber. . . . [The spine] is
designed to take loads in extension. So the more flexed you
are when you're subjected to an axial load, the more of
that force, instead of being dissipated equally, it goes . .
. into the nucleus, which is the jelly. And when . . . the
center of rotation is forward of where it's . . .
supposed to be, the forces that are directed towards . . .
the jelly are then directed posterior towards the back.
[I]n most of us, the weak link is what we call the annulus
which is that circular ring around the disk. . . . And so
when you get an axial load in a flexed posture and the weak
link is the annulus, you get a disk bulge or a disk
displacement or sometimes an actual extrusion of disk
material. . . . And the place that it typically goes is back
towards the spinal canal.
Stanley opined that, based on his review of Bishop's
medical records, Bishop did not suffer from any type of
degeneration in her spine, and "[Bishop's] pain and
resultant medical care and medical treatment . . . [did not
have] anything to do with degeneration in her cervical spine
found that Gajurel was negligent while acting within the
course and scope of his employment, his negligence
proximately caused Bishop's injury, and Walmart therefore
was negligent on a theory of vicarious liability. The jury
awarded damages to Bishop in the amount of $1, 393, 484.52,
upon which the trial court rendered judgment.
issues, Walmart argues: (1) the evidence was legally
insufficient and, alternatively, factually insufficient to
support the jury's finding that the negligence of
Walmart's employee proximately caused the box to fall
from the shelf; (2) the evidence was legally insufficient
and, alternatively, factually insufficient to support the
jury's finding that Bishop's injury was proximately
caused by the box hitting her head, and the trial court
committed reversible error by allowing Dr. Stanley to offer
expert testimony when his testimony had not been adequately
disclosed and he was not a proper rebuttal witness; (3) the
trial court abused its discretion by denying Walmart's
Motion for Leave to File Counteraffidavits under section
18.001 of the civil practice and remedies code, and refusing
to allow Walmart to present expert witness testimony at trial
on the reasonableness and necessity of Bishop's medical
expenses; (4) the trial court committed reversible error in
submitting an ambiguous question concerning vicarious
liability in the jury charge; (5) the evidence was factually
insufficient to support the jury's damage award for
physical pain, legally and factually insufficient to support
the jury's damage award for mental anguish, and factually
insufficient to support the jury's damage award for
physical impairment; and (6) the trial court committed
reversible error by allowing improper jury argument by
of the Evidence
as here, an appellant attacks the legal sufficiency of the
evidence to support an adverse finding on an issue on which
it did not have the burden of proof, it must demonstrate that
no evidence supports the adverse finding. Exxon Corp. v.
Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215
(Tex. 2011); Croucher v. Croucher, 660
S.W.2d 55, 58 (Tex. 1983). In determining whether the
evidence is legally sufficient to support a finding, we
consider the evidence in the light most favorable to the
verdict and indulge every reasonable inference that would
support it. City of Keller v. Wilson, 168 S.W.3d
802, 821-22 (Tex. 2005). We credit favorable evidence if
reasonable jurors could do so, and disregard contrary
evidence unless reasonable jurors could not. Id.
"The final test for legal sufficiency must always be
whether the evidence at trial would enable reasonable and
fair-minded people to reach the verdict under review."
Id. at 827.
sufficiency challenge will be sustained when there is a
complete absence of evidence of a vital fact; the court is
barred by rules of law or of evidence from giving weight to
the only evidence offered to prove a vital fact; the evidence
offered to prove a vital fact is no more than a mere
scintilla; or the evidence conclusively establishes the
opposite of the vital fact. See id. at 810; King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
If there is more than a scintilla of evidence supporting the
jury's finding, the legal sufficiency challenge must
fail. Id. There is more than a scintilla of evidence
"when the evidence as a whole rises to a level enabling
reasonable and fair-minded people to have different
conclusions." Waste Mgmt. of Tex., Inc. v. Tex.
Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156 (Tex.
2014). However, if the evidence is so weak that it only
creates a mere surmise or suspicion of its existence, it is
regarded as no evidence. Id. at 156.
considering a challenge to the factual sufficiency of the
evidence, we review the entire record and may set aside the
verdict only if it is against the great weight and
preponderance of the evidence. Golden Eagle Archery, Inc.
v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). A finding
is against the great weight and preponderance of the evidence
if it is clearly wrong, manifestly unjust, or "shocks
the conscience." Id. The factfinder is the sole
judge of the credibility of the witnesses and the weight to
be given their testimony. City of Keller, 168 S.W.3d
at 819 (legal sufficiency review); Golden Eagle Archery,
Inc., 116 S.W.3d at 761 (factual sufficiency review). We
may not substitute our own judgment for that of the
factfinder merely because we might reach a different result.
City of Keller, 168 S.W.3d at 819, 822-23;
Golden Eagle Archery, Inc., 116 S.W.3d at 761.
Cause Element of Negligence Claim
establish a negligence claim, the plaintiff must prove the
defendant owed a duty to the plaintiff, the defendant
breached that duty, and the breach proximately caused the
plaintiff's injury. Firestone Steel Products Co. v.
Barajas, 927 S.W.2d 608, 613 (Tex. 1996). "The
components of proximate cause consist of cause in fact and
foreseeability." Rogers v. Zanetti, 518 S.W.3d
394, 402 (Tex. 2017). These elements cannot be established by
mere conjecture, guess, or speculation. Doe v. Boys Clubs
of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.
1995). Proximate cause may, however, be established by either
direct evidence or circumstantial evidence and reasonable
inferences drawn from that evidence. Havner v. E-Z Mart
Stores, Inc., 825 S.W.2d 456, 459 (Tex. 1992).
in fact requires "proof that (1) the negligent act or
omission was a substantial factor in bringing about the harm
at issue, and (2) absent the negligent act or omission
('but for' the act or omission), the harm would not
have occurred." Stanfield v. Neubaum,
494 S.W.3d 90, 97 (Tex. 2016) (quoting Akin, Gump,
Strauss, Hauer & Feld, L.L.P. v. Nat'l. Dev.
& Research Corp., 299 S.W.3d 106, 122 (Tex.
2009)). If a negligent act or omission merely creates the
condition that makes the harm possible, it is not a
substantial factor in causing the harm as a matter of law.
See id.; IHS Cedars Treatment Ctr. of
DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 800
(Tex. 2004). "The evidence must go further, and show
that such negligence was the proximate, and not the remote,
cause of resulting injuries . . . [and] justify the
conclusion that such injury was the natural and probable
result thereof." Doe, 907 S.W.2d at 477.
However, the plaintiff need not exclude all possibilities; it
is sufficient to prove that the greater probability is that
the defendant's conduct, alone or in contribution with
others, was the cause of the harm. First Assembly of God,
Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 493 (Tex.
App.-Dallas 2001, no pet.). Nor must the defendant's
negligence be the sole cause of the injury. Havner,
825 S.W.2d at 459. The issue is whether there is any evidence
from which reasonable minds could draw an inference that the
defendant's negligent act caused the plaintiff's
injury. Id. "Whether other possible inferences
may be drawn from the evidence is not the relevant
plaintiff proves foreseeability of the injury by establishing
that "a person of ordinary intelligence should have
anticipated the danger created by a negligent act or
omission." Stanfield, 494 S.W.3d at 97 (quoting Doe, 907
S.W.2d at 478). It is not necessary for the particular
accident complained of, or the precise manner in which the
injury occurred, to be foreseeable. See Doe, 907
S.W.2d at 478. All that is required is the injury be of a
general character that might be reasonably contemplated as a
result of the defendant's conduct. Id.
Foreseeability should be measured in the light of common
experience applied to human conduct. Id.