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Broussard v. Omni Hotels Corp.

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

September 12, 2019

JESSICA BROUSSARD, Appellant,
v.
OMNI HOTELS CORPORATION AND OMNI HOTELS MANAGEMENT CORPORATION, Appellees.

          On appeal from the County Court at Law No. 2 of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Longoria and Perkes

          MEMORANDUM OPINION

          NORA L. LONGORIA JUSTICE.

         Appellant Jessica Broussard brought a premises liability suit against appellees Omni Hotels Corporation and Omni Hotels Management Corporation (collectively Omni). After a jury trial, the trial court entered a take-nothing judgment against Broussard. By two issues on appeal, Broussard argues that the trial court erred by: (1) allowing an undesignated expert to testify concerning building code interpretation; and (2) excluding evidence of three allegedly similar accidents. We reverse and remand.

         I. Background

         The underlying facts are uncontested. On July 29, 2014, Broussard, a sixty-year old woman from Houston, was eating at the Republic of Texas Bar and Grill restaurant with her family on the top floor of an Omni Hotel in Corpus Christi. A host from the hotel led Broussard and her family down a flight of carpeted stairs that led to a table; however, Broussard fell near the bottom of the stairs. She was transported by ambulance to a hospital; doctors confirmed that she broke her ankle in multiple locations.

         Omni's loss prevention officer Larry Esquivel arrived at the scene to complete an incident report. According to Esquivel's report, he did not witness the fall; however, he noted that Broussard suffered "severe pain." The host and the Broussards testified that the restaurant seemed "dim," whereas Esquivel believed the restaurant was well lit.

         In May of 2016, Broussard filed a premises liability suit against Omni, complaining that the "stairs were too short lengthwise, did not offer any skid protection at their nose, were in a dark area with slippery carpet and had inadequate hand rails." During discovery, Omni designated a testifying expert, Thomas Burns, who opined concerning the applicable building code requirements but did not specifically state whether he believed that Omni was in compliance with the code.[1] Broussard gave Omni notice of her intent to depose a corporate representative of Omni concerning Omni's lighting and whether it violated the applicable code, among other things. The trial court ordered Omni to present a corporate representative "who can speak to . . . [t]he lighting of the incident stairs [and] . . . [w]hether the lighting of the incident stairs violated municipal codes at the time of the incident."

         Omni designated Randy Atwood as its corporate representative. During his deposition, Atwood generally agreed with Burns's opinion on the applicable building code and what that entailed. However, based on his review of a report by Broussard's expert, Jason English, Atwood also agreed that "Broussard fell on stairs at night that didn't meet the illumination code requirements."

         At trial, English testified that the light measurement he took at the bottom of the stairs was approximately one-tenth of the lighting required according to the code. Accordingly, he opined that the stairs were underlit and that Omni was in violation of the code. Omni did not call Burns, its designated testifying expert, at trial. Instead, Omni called only two witnesses: Esquivel and D.J. McGlothern, a vice president of construction operations and asset management for Omni. McGlothern testified that Omni was not in violation of the code. According to McGlothern's interpretation of the code, there is no minimum light requirement applicable to "non-exit" areas, such as the stairs where Broussard fell. He testified that the stairs could be nearly pitch black and "that technically wouldn't violate [the] code." Broussard objected multiple times asserting that McGlothern was never designated as a testifying expert and that his testimony concerning his interpretation of the code should be excluded. The trial court overruled Broussard's objections, and Broussard obtained a running objection.

         The jury returned a verdict finding that neither Broussard nor Omni were negligent. The trial court entered a take-nothing judgment against Broussard. Broussard filed a motion for new trial, which was overruled by operation of law. This appeal followed.

         II. Expert Testimony

         In her first issue, Broussard argues that the trial court erred by failing to exclude McGlothern's "undesignated expert testimony."

         A. Standard of Review ...


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