JOHN RUFF AND CATHERINE LOTH, INDIVIDUALLY AND AS NEXT FRIENDS OF A.R., A MINOR CHILD, Appellants
THE UNIVERSITY OF ST. THOMAS, Appellee
Appeal from the 190th District Court, Harris County, Texas,
Trial Court Case No. 2016-19616
consists of Justices Lloyd, Kelly, and Hightower.
RUSSELL LLOYD JUSTICE
John Ruff and Catherine Loth, as next friends 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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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.
the judgment "ordered that all costs of court are taxed
against the party incurring said cost"
(all-capitalization removed). The court explained its costs
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.
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.
of Judgment With Reduced Award
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 ...