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Ruff v. The University of St. Thomas

Court of Appeals of Texas, First District

July 11, 2019


          On Appeal from the 190th District Court, Harris County, Texas, Trial Court Case No. 2016-19616

          Panel consists of Justices Lloyd, Kelly, and Hightower.



         Appellants John Ruff and Catherine Loth, as next friends[1] of their daughter, A.R., appeal the trial court's reduction of the $5, 900 damage award made by the jury for injuries that A.R. sustained on the premises of appellee the University of St. Thomas (the "University"). Ruff and Loth contend that the common-law doctrine of parental immunity, as applied by the Supreme Court of Texas, prohibited the trial court from reducing the award under the apportionment-of-responsibility provisions of Chapter 33 of the Civil Practice & Remedies Code. They also contend that the trial court abused its discretion by declining to adjudge costs entirely in their favor as the "successful parties" in the suit.

         Parental immunity prevents Chapter 33 apportionment of responsibility on this record. Our disposition of that issue requires remand to the trial court for a determination of court costs. Therefore, we reverse and remand for further proceedings.


         Ruff and Loth are the parents of A.R., who was one year old at the time of this incident. Ruff and Loth attend religious services at a chapel on the University's premises. During one service in the past, A.R. made some noise, and the celebrant of the mass asked them not to bring A.R. into the chapel during services.

         Ruff and Loth attended the service in question and, because of the previous request, remained with A.R. in the narthex area just outside the chapel. Loth's sister attended the service too and remained in the narthex area with Ruff, Loth, and A.R.

         The University had provided benches in the narthex, which were available for use. While sitting on one of the benches in the narthex, Loth set A.R. on the ground so A.R. could go over to Loth's sister on another nearby bench. While A.R. was moving along the floor, she put her hand on a light fixture embedded in the floor. A.R.'s hand was burned and blistered. Ruff and Loth took A.R. to an emergency-care facility, where A.R. received treatment. She received further treatment at later appointments with her primary-care doctor.

         Ruff and Loth, as A.R.'s next friends, sued the University, seeking a recovery for A.R. for the physical pain and mental anguish sustained due to the injuries to her hand. The University answered and pleaded for the application of apportionment of responsibility under Sections 33.003, 33.012(a), and 33.013(a) of Chapter 33.

         The suit proceeded to trial. Before evidence was presented, Ruff and Loth moved for a ruling in limine prohibiting the University from referencing the parents' alleged negligence. The University objected to that request, arguing that it pleaded the parents' negligence and Chapter 33 and that it "should be able to allude or make reference to the negligence of the parents in regards to injuries that the child sustained." Ruff and Loth disagreed, responding that "there's no contributory negligence" because "there's been no waiver of a parental immunity." The trial court denied Ruff's and Loth's motion in limine, ruling that "the parental-immunity doctrine does not apply here" and that "nobody needs to approach before going into evidence of parental contributory negligence in this case."

         During the presentation of evidence, the University's counsel examined Loth about what she was doing when she set A.R. on the ground in the narthex and while A.R. was moving toward Loth's sister. Amid this line of questioning, the University's counsel asked Loth, "so not knowing whether the lights were on or off, you allowed [A.R.] to crawl in the area on the concrete?" This drew an objection from Ruff's and Loth's counsel based on parental immunity, but the trial court responded that it had "ruled on that." Ruff's and Loth's counsel asked for a running objection along those lines. When the University's counsel later returned to the topic, asking Loth, "you could have prevented [A.R.] from touching those lights, couldn't you," Ruff's and Loth's counsel reiterated the running objection, which the trial court overruled.

          The suit was submitted to the jury in three questions. Question 1 asked for "Yes" or "No" answers on whether the negligence of either or both of the University or "John Ruff and/or Catherine Loth" proximately caused the injury in question. The jury answered "Yes" in both blanks.

         Question 2 was conditioned on "Yes" answers in both blanks in Question 1 and asked for an apportionment of percentages of responsibility between the University and "John Ruff and/or Catherine Loth." The jury found each of the two sides liable for 50% responsibility.

         Question 3 asked what sum of money, if paid now in cash, would provide fair and reasonable compensation for A.R.'s injuries, if any, that resulted from the injury in question. The jury answered "$5900" for physical pain and mental anguish sustained in the past, "$0" for physical impairment sustained in the past, and "$0" for disfigurement sustained in the past.

         The trial court entered a judgment in A.R.'s favor on the jury's verdict, but awarded A.R. only $2, 950, which is 50% of $5, 900.

         Further, the judgment "ordered that all costs of court are taxed against the party incurring said cost" (all-capitalization removed). The court explained its costs ruling:

Well, I think that the record speaks for itself on the outcome of this case. And the determination of the award of costs is based on success. And I think in this matter, equity certainly supports splitting the costs. I'm not sure either party was what one would call "successful." The award was not at all what the plaintiff sought. It was less than what the plaintiff was offered in settlement. The attorneys' fees were probably five times at least what the jury awarded in damages. I don't think it's just based on the fact that the plaintiff received an award of damages. I think you have to look at the whole picture. Neither side really won this case. And I think that splitting the costs was fair.

         Ruff and Loth appeal the judgment because it reduced A.R.'s $5, 900 award by 50% and because it did not adjudge costs entirely in Ruff's and Loth's favor.

         Entry of Judgment With Reduced Award

         In their first issue, Ruff and Loth contend that "[t]he trial court erred in ignoring the doctrine of parental immunity and allowing the jury to apportion fault to" them as "A.R.'s parents." They argue that the trial court erred "in overruling [their] objections and allowing [the University] to argue that the jury should consider parental contributory negligence." And they argue that parental immunity (i) bars the University's "claim of contributory negligence against" them and (ii) makes Chapter 33 an impermissible "argument[, ] and the trial court erred in allowing ...

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