X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Torts Click here for the full text of this decision FACTS:The appellants, Troy and Carolyn Horton, sued the appellee, Denny’s Inc., for damages resulting when Troy Horton slipped and fell on ice in front of Denny’s Restaurant in North Richland Hills. The jury found in favor of the Hortons, but awarded only $1,000 in past damages. HOLDING:Reversed and remanded. Where the evidence of injury and damages is more objective than subjective and the fact of injury is acknowledged by the jury by a finding of some damages attributable to the defendant, the jury’s failure to award recovery for other elements of damage has been regarded as against the great weight and preponderance of the evidence. This is not the case, however, “when the indicia of injury and damages are more subjective than objective.” Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801 (Tex. App. � Dallas 1988, no writ). When the fact of injury and resulting damages chiefly depend upon subjective evidence, appellate courts are reluctant to hold the nonfindings as against the great weight and preponderance of the evidence. Although most of the cases illustrating the principle involve a failure to find damages for pain and suffering despite a finding of injury, the same principle has been applied by appellate courts to overturn inadequate verdicts for medical expenses. In Hill v. Clayton, 827 S.W.2d 570 (Tex. App. � Corpus Christi 1992, no writ), Clayton shot Hill with buckshot. Hill’s injury was described in emergency room records as follows: “there were three entrance wounds and two exit wounds, shell and bone fragments in the foot, and broken bones in the foot.” Hill later underwent two operations and a skin graft. The court of appeals held that the jury’s award of $2,500.00 was clearly wrong and manifestly unjust when the proof established $8,939.45 in medical expenses. In the cases cited, the plaintiff’s injury was shown by objective symptoms such as fracture, laceration or muscle spasm. See McGuffin v. Terrell, 732 S.W.2d 425 (Tex. App.-Fort Worth 1987, no writ). The relevant inquiry in this case is whether the indicia of Horton’s injury are more objective than subjective. Like the plaintiff in Hill whose leg was broken by buckshot, x-rays objectively showed Horton’s ankle fracture. The $1,180 in medical expenses he incurred on the day of his injury for ambulance service, the hospital emergency room and emergency room doctor totaled more than the jury awarded for all elements of damage. If the $1,035 bill for his treatment by a board-certified orthopedic surgeon and the charges incurred for physical therapy are included, the medical expenses directly related to the ankle fracture are four-and-one-half times greater than the jury’s damage award. The Hortons called only one expert witness, Dr. Don Johnston. Johnston’s credibility was no doubt severely undermined when it became apparent to the jury that he initially had pronounced all Horton’s medical expenses as “reasonable and necessary” without ever having looked at them. He was also forced to admit that he had no basis for his conclusion that Horton’s possible pulmonary embolism was related to the ankle fracture beyond what Horton told him. Denny’s presented no medical evidence. Although Denny’s vigorously questioned the relationship between the embolism and the ankle fracture, nothing in Denny’s cross-examination of Johnston brought into question the records and charges of the North Richland Hills Fire Department Ambulance Service, the Columbia North Hills Hospital emergency room, the emergency room doctor or even the charges of Johnston himself. Even disregarding physical pain and all other elements of damage but medical expenses, the jury’s award was clearly inadequate and against the great weight and preponderance of the evidence. OPINION:Bass, J.; Griffith, J., DeVasto and Bass, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.