Gunn v. Mid-South Health ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40601
Summary Calendar
MORGAN WADE GUNN
Plaintiff-Appellee,
v.
MID-SOUTH HEALTH DEVELOPMENT, INC., d/b/a Reunion Plaza,
and MID-SOUTH HEALTH ENTERPRISES, INC.
Defendants-Appellants,
Appeal from the United States District Court for the
Eastern District of Texas
Civil Action No. 6:98-CV-83
March 8, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Mid-South Health Enterprises, Inc. (“Mid-South”) appeals
the district court’s denial of its motion for judgment as a matter
of law, arguing that there was insufficient evidence to establish
that Mid-South was negligent. Having carefully reviewed the briefs
and record, this court finds that there was sufficient evidence to
support the district court’s denial of the motion. We, therefore,
affirm.
This court reviews the denial of a motion for judgment as
a matter of law de novo, applying the same standard as the district
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1
court. Nero v. Indus. Molding Corp., 167 F.3d 921, 925 (5th Cir.
1999). This court considers all the evidence and all reasonable
inferences “in the light most favorable to the party opposed to the
motion... If there is substantial evidence opposed to the motion --
that is, evidence of such quality and weight that reasonable and
fair minded jurors in the exercise of impartial judgment might
reach different conclusions -- then the motion should have been
denied.” Crosthwait Equip. Co., Inc. v. John Deere Co., 992 F.2d
525, 528 (5th Cir. 1993).
Since Mid-South is a workers’ compensation nonsubscriber,
Gunn must show that Mid-South was negligent. Sears, Roebuck & Co.
v. Robinson, 280 S.W.2d 238, 239 (Tex. 1955). In order to show
negligence, Gunn must produce evidence establishing a duty, a
breach of that duty, and damages proximately caused by the breach.
I.M. Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1994). On
appeal, Mid-south challenges the sufficiency of the evidence only
with respect to the proximate cause element, which consists of
cause in fact and foreseeability.1 See Leitch v. Hornsby, 935
S.W.2d 114, 118 (Tex. 1996). In particular, Mid-South contends
that any risk of injury to Gunn was not foreseeable since (1) Mid-
1
Although a company’s following the usual and customary practice may
intuitively speak to the breach element of negligence, the Appellant and Texas
case law discuss the following of an industry-wide practice in relation to the
foreseeability element. See J. Weingarten, Inc. v. Sandefer, 490 S.W.2d 941, 946
(Tex. Civ. App.–Beaumont 1973, writ ref’d n.r.e.). For the purposes of this
opinion, we adopt the Appellant’s and the Texas courts’ characterization of the
issue.
2
South followed the usual and customary practice in the nursing home
industry, and (2) Gunn did not foresee the possibility of injury.2
Contrary to Mid-South’s claim, though, conformity with
the usual and customary practices of an industry does not, as a
matter of law, absolve a party from negligence: “[E]vidence as to
such [industry] customs is not controlling and must not be taken as
the legal standard of care and negligence, but is merely evidence
to be considered along with other circumstances in determining what
the ordinary reasonable man would do under the circumstances.”
Stanley v. Southern Pac. Co., 466 S.W.2d 548, 551 (Tex. 1971); see
also Brown v. Lundell, 344 S.W.2d 863, 867-69 (Tex. 1961); Leadon
v. Kimbrough Brothers Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972).
Thus, the fact that Mid-South followed the usual and customary
practice of nursing homes does not, by itself, render Gunn’s injury
unforeseeable.
Foreseeability requires only that the general danger, not
the exact sequence of events that produced the harm, be
foreseeable. Lofton v. Texas Brine Corp., 777 S.W.2d 384, 387
2
Mid-South also contends that the district court erred in admitting
evidence of damages in excess of Gunn’s disclosed damages of $4,095.04. The
record indicates that Mid-South objected only to the past medical expenses
exceeding $4,095.04. This court reviews evidentiary decisions objected to at
trial for abuse of discretion, see United States v. Duncan, 919 F.2d 981, 985
(5th Cir. 1990), and will reverse only if the error is harmful and implicates a
substantial right of the complaining party. See Polanco v. City of Austin, 78
F.3d 968, 982 (5th Cir. 1996); Fed. R. Evid. 103. Since the contested past
medical bills were listed in Gunn’s exhibits and since Mid-South knew about these
bills prior to Dr. Calodney’s deposition, Mid-South has failed to show that the
evidentiary ruling implicated one of its substantial rights. Therefore, the
district court did not abuse its discretion in admitting the evidence. With
respect to the evidentiary decisions that were not objected to at trial, this
court finds that the district court did not plainly err in allowing evidence of
other damages. See Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265, 274
(5th Cir. 1998). As a result, we affirm the district court’s evidentiary rulings
as to damages.
3
(Tex. 1996). Although proximate cause may not be established by
conjecture or guess, “[t]here need not, however, be direct and
positive proof, as the jury may infer proximate cause ‘from the
circumstances surrounding the event.’” Mosley v. Excel Corp., 109
F.3d 1006, 1009 (5th Cir. 1997)(quoting B.M. & R. Interests v.
Snyder, 453 S.W.2d 360, 363 (Tex. Civ. App. 1970). Gunn testified
that a nursing home where he was previously employed required two
people to work together when changing patients. Henry Wickes, an
expert in safety engineering and human factors engineering, also
testified that the practices and controls used by Mid-South were
inappropriate for the type of work Gunn was performing when he was
injured. Such evidence is sufficient for reasonable minded jurors
to infer that Gunn’s injury was foreseeable. As a result, Mid-
South was not entitled to judgment as a matter of law in virtue of
its following an industry-wide practice.
Furthermore, since foreseeability is measured objectively
from the standpoint of the person responsible for the allegedly
negligent act, Baylor Medical Plaza Services v. Kidd, 834 S.W.2d
69, 74-75 (Tex. App.–Texarkana, writ denied), the fact that Gunn
may not have foreseen the risk of injury is not dispositive. Given
the testimony of Gunn and Wickes, a reasonable juror could infer
that a reasonable employer should have foreseen Gunn’s injury.
Thus, since the evidence is sufficient for a reasonable
juror to find that Gunn’s injury was foreseeable, Mid-South is not
entitled to judgment as a matter of law. See Crosthwait Equip.
Co., 992 F.2d at 526. This court, therefore, affirms.
4
AFFIRMED.
5