TXI Operations, LP v. David Perry ( 2004 )

In The Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-070 CV ____________________

TXI OPERATIONS, L.P., Appellant

V.

DAVID PERRY, Appellee

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On Appeal from the 253^rd Judicial District Court Liberty County, Texas Trial Court Cause No. 60,123

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MEMORANDUM OPINION  

David Perry sued TXI Operations, L.P. for personal injuries he sustained while operating a truck on premises owned by TXI. The jury found in favor of Perry. On appeal, TXI argues the issue of negligence should not have been submitted to the jury because the evidence conclusively established TXI discharged its duty to Perry by posting a speed limit sign.

Perry worked as a truck driver for Campbell Ready Mix. Part of Perry's duties involved retrieving loads of sand from Dolen Sand Pit. To reach Dolen Sand Pit, Perry had to use a road owned and maintained by TXI. TXI posted a speed limit sign of fifteen miles per hour at the area in question. Perry drove his truck over a large hole in the road, and his head struck the roof of his truck. He was traveling between ten and fifteen miles per hour. When asked whether he was familiar "with the way those holes would work on that road[,]" Perry stated he was. Dr. Vladimir Redko testified he had diagnosed Perry with whiplash syndrome, neuralgia, and lumbar strain, and he testified Perry would suffer pain for the rest of his life. Dr. Gwenevere Williams diagnosed Perry with cervical cranial syndrome, lumbosacral neuroradiculopathy, and lumbago.

The jury found Perry was fifty percent responsible and TXI was fifty percent responsible, and found damages in the amount of $387,477.35. The trial court reduced the award by Perry's percentage of responsibility, assessed prejudgment interest, and entered judgment in favor of Perry for $214,808.11. TXI filed a motion for judgment notwithstanding the verdict or to disregard jury findings. The trial court denied TXI's motion.

TXI presents one issue for appellate review, phrased as follows:

The trial court erred in submitting the issue of negligence to the jury and overruling TXI's Motion for Judgment Notwithstanding the Verdict because the evidence established that Appellant TXI had warned Appellee Perry of the condition of the premises and thus discharged any duty as a matter of law.

Essentially, appellant says there is no evidence it failed to warn Perry of the hole in the road, and argues that, in fact, the evidence conclusively establishes it did provide an adequate warning through the speed limit sign. We understand appellant's issue as a challenge to the legal sufficiency of the evidence to support the verdict.

An appellant attacking the legal sufficiency of an adverse finding as to an issue on which it did not have the burden of proof must demonstrate there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In reviewing no evidence issues, an appellate court must consider all of the evidence in a light most favorable to the party in whose favor the verdict was rendered, and every reasonable inference is to be indulged in favor of the jury's verdict. See Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998) (citing Harbin v. Seale, 461 S.W.2d 591, 592 (Tex. 1970)). "Anything more than a scintilla of evidence is legally sufficient to support the finding." Id. (citing Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996) and Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993)).

[W]hen an occupier has actual or constructive knowledge of any condition on the premises that poses an unreasonable risk of harm to invitees, he has a duty to take whatever action is reasonably prudent under the circumstances to reduce or to eliminate the unreasonable risk from that condition.

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983). The owner must either adequately warn of a dangerous condition or make the condition safe. See State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996).   

TXI concedes Perry was a business invitee and TXI owed him a duty. See Corbin, 648 S.W.2d at 295. ⁽¹⁾ TXI does not dispute the hole in the road was a dangerous condition which it did not repair and TXI does not dispute it owed a duty to warn Perry of the dangerous condition. On appeal, TXI contends the speed limit sign discharged its duty to warn Perry. Appellant points to evidence this was not the first time Perry drove over the road. However, the Supreme Court has said "[a] plaintiff's knowledge, whether it is derived from a warning or from the facts, even if the facts display the danger openly and obviously, is a matter that bears upon his own negligence; it should not affect the defendant's duty." Parker v. Highland Park, Inc., 565 S.W.2d 512, 521 (Tex. 1978).

TXI's representative testified a driver could reasonably expect to travel safely if he adheres to the posted speed. Perry testified he was traveling 10-15 miles per hour at the time of the accident, yet he was injured by the dangerous condition. It is undisputed TXI provided no warning of the dangerous condition other than the speed limit sign. There is sufficient evidence in the record from which the jury could reasonably infer the speed limit sign did not adequately warn business invitees of the dangerous condition. Appellant's sole issue is overruled.

The judgment of the trial court is affirmed.

AFFIRMED.

PER CURIAM

Submitted on September 2, 2004

Opinion Delivered November 18, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Appellant's brief states: "In the instant case, TXI does not dispute that Perry was a business invitee, nor whether it owed him a duty in that capacity. The issue brought forward is whether, as a matter of law, TXI discharged its duty by posting a speed limit sign warning of the condition of the road."