X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Barbara Goss began working at Brookshire Grocery Co. in Quitman in 1999. In November 2002, was working in the deli section of the store. Shortly before Thanksgiving, Brookshire’s employees had been taking orders for frozen turkey dinners for customers. To keep them at the proper temperature, the employees stacked the dinners on a lowboy cart and placed the cart in the deli cooler while the market freezer was being rearranged. A lowboy cart is used to move inventory and stands about ten inches off the ground. It is approximately five feet long, and about two-and-one-half feet wide. A lowboy cart has a handle on one end and can only be maneuvered using this handle. This lowboy was loaded with Thanksgiving foods which were boxed and stacked three to four boxes high, leaving less room in the cooler for employees to move around. Goss had to go into the cooler to get some frozen potato logs to cook and put in the deli. There were also other carts � regular shopping buggies � in the cooler at the time. Goss admitted she noticed the lowboy cart when she entered the cooler Nov. 23, 2002. She stepped over the corner of the lowboy to get over to the area where the potato logs were located. On obtaining the necessary items, she turned around, hit her shin on the lowboy, reached around to grab a shelf to keep from falling and hurt her back. In her petition, she explained similarly that she tripped over the lowboy and then twisted as she fell, injuring her knee and back. Goss immediately went to the hospital. She filled out an accident report two days later, listing the cart as the cause of her injury. Her supervisor also filled out a report in connection with the accident, stating that Barbara turned around and fell over the blue stock cart. When her symptoms persisted, Goss consulted a physician’s assistant as directed by Brookshire. He gave her pain medication and ordered x-rays. Unsatisfied with the results of that treatment, she then went to the risk manager for Brookshire, who sent Goss to Dr. Michael Russell, a board-certified orthopedic surgeon in Tyler. Goss still did not feel better and told Brookshire that she wanted to go to another doctor. Brookshire then sent Goss to Dr. Barbara Davidson, a physical medicine and rehabilitation specialist in Tyler. Davidson gave Goss several epidural injections to treat the pain. Goss again wanted to go to another doctor. Brookshire sent her to Dr. Paul Detwiler and Dr. McMasters. Goss was also dissatisfied with the results of their treatment. Not satisfied with Brookshire’s overall medical direction, Goss decided to go to Dr. Phillip Williams in Dallas. Williams, not an approved doctor according to Brookshire, acknowledged Goss’ pain and sent her to another doctor. Still feeling worse, Goss then went to Dr. Virgil Medlock, who referred her to the Cooper Clinic in Dallas and to pain specialist Dr. Kenneth Reed, who treated her with an epidural injection. Finally, on Reed’s recommendation, Goss went to Dr. Richard Weiner, who implanted a permanent neurostimulator in Goss to control her pain. By all accounts, she is doing much better. Reed explained that Goss had a very successful response to the neurostimulator. Goss filed her original petition Aug. 27, 2003, alleging both ordinary negligence and premises liability. The jury returned a verdict in favor of Goss. On Dec. 9, 2004, the trial court signed a judgment in accordance with the verdict. On Jan. 7, 2005, Brookshire filed an amended motion for new trial. On Feb. 2, 2005, the trial court signed an order granting Brookshire’s amended motion for new trial. That order was set aside, however, when the 6th Court of Appeals in Texarkana granted a writ of mandamus. HOLDING:Affirmed. Brookshire, the court stated, argued that Goss failed to present legally sufficient evidence that her accident was a foreseeable one. Examining the testimony of Crawford, Firmbach, and Brookshire’s own safety inspection checklist, the court concludes that the risk of someone tripping over or bumping into the low loading bed of a large lowboy cart was a risk that Brookshire acknowledged and therefore foreseeable. Brookshire, the court further stated, argued the trial court erred by refusing to include jury instructions on the elements of premises liability set forth in Corbin v. Safeway Stores Inc., 648 S.W.2d 292 (Tex. 1983). Goss, however, elected to bring this action as a negligence case against his employer and that cause of action was supported by the facts and applicable law, the court stated in overruling Brookshire’s point of error regarding the jury charge. Finally, Brookshire argued that some of the damages found by the jury were not supported by competent evidence. The court disagreed, noting the testimony of Dr. Alex Willingham, a physician, who runs a business where life care plans and costs analyses are compiled. Willingham testified to Goss’ future medical needs. The court found that Willingham’s figures were proper evidence and noted that the jury looked to his figures to calculate the damages award. Willingham’s figures, the court held, constituted evidence that supports the jury’s verdict against Brookshire, a nonsubscriber within the Texas Workers’ Compensation Act. OPINION:Carter, J.; Morriss, C.J., Ross and Carter, J.J.

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

Benefits of a Digital Membership:

  • Free access to 1 article* 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 © 2021 ALM Media Properties, LLC. All Rights Reserved.