Don Bailey, Individually and d/b/a Bailey Construction Company v. Donald W. Waters, Jr.--Appeal from 259th District Court of Jones County

11th Court of Appeals

Eastland, Texas

Opinion

Don Bailey, Individually and d/b/a Bailey Construction Company

Appellant

Vs. No. 11-00-00279-CV C Appeal from Jones County

Donald W. Waters, Jr.

Appellee

Donald W. Waters, Jr. filed suit against Don Bailey seeking recovery for injuries he received while working at Bailey Construction Company. The jury found that Bailey=s negligence caused the injuries to Waters and awarded Waters $386,110.74 in damages. The trial court ordered Bailey to pay $144,359.19 in prejudgment interest and post-judgment interest at a rate of ten percent per annum. Bailey brings five issues on appeal challenging the trial court=s award of damages and prejudgment interest to Waters. We modify the judgment and affirm as modified.

In his first issue on appeal, Bailey argues that the trial court erred in awarding damages to Waters because Bailey could not foresee the accident which caused Waters= injuries. In reviewing no-evidence points, we must view the evidence in the record in a light which tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. If there is any evidence of probative force to support the finding, the no-evidence point must be overruled. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); In re King=s Estate, 244 S.W.2d 660 (Tex.1951); see also Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. den=d, 523 U.S. 1119 (1998).

Bailey testified at trial that he hired Waters as a Acommon laborer to do what he was told to do.@ Bailey stated that Waters followed instructions, got along well with his coworkers, and Adid what he was told.@ Bailey stated that on May 20, 1996, he was working at the Livestock Auction facility in Stamford along with about eight of his employees. On that day, Bailey told Doyle Lee, his foreman, that he needed help moving some sheet metal. Waters brought a clamp to attach the sheet metal to the front-end loader in order to move it. Lee testified that he clamped the sheet metal to the right side of the loader bucket. Waters was instructed to walk beside the loader and keep the sheet metal steady as it was being moved. Bailey, who was driving the loader, testified that he got down off of the loader and placed Waters on the right side of the loader.

Bailey stated that, in moving the sheet metal to the required location, it was necessary for him to make a left turn. Bailey took his eyes off of Waters for a second in order to make eye contact with the welder who was indicating to Bailey where to place the sheet metal. Bailey testified that he felt the loader Araise up@ and that, when he looked down, there was Aa man under the left-hand wheel.@ Bailey stopped the loader after the wheel Arolled off [Waters=] body,@ and Waters told him to back up because the loader was still on his foot. Bailey backed up, got down from the loader, told Waters to lie still, and went to call 911. After calling 911, Bailey returned to Waters and told him that he was sorry. Bailey testified that Waters told him, ADon, it wasn=t your fault.@

Bailey offered testimony from several other workers who were present at the scene who all testified that Waters was on the right side of the loader. Both Bailey and another contractor testified that, if Waters had stayed on the right side of the loader, he would not have been injured. Bailey offered testimony that moving the sheet metal with a loader was a safe procedure and that he was operating the loader in a safe manner. Bailey also offered the testimony of other workers who stated that they had assisted in moving sheet metal with a loader and that they did not feel that it was dangerous.

Waters testified that, when he arrived at work on the day of the accident, he was instructed by Bailey that they were going to move some sheet metal with the front-end loader. Waters stated that he felt Auncomfortable@ moving the sheet metal with the loader and asked Bailey if they could carry the sheet metal by hand. Bailey informed Waters that they would move it with the loader. Waters stated that the sheet metal was hooked Ain the middle of the bucket in front@ of the loader and that Bailey told him to Akeep it steady.@ Waters testified that he walked on the left side of the loader and that he stayed on the left side the entire time.

Waters said that, as he was holding the sheet metal, the loader Agrabbed [his] right foot@ and started Ato pull [him] under.@ Waters fell to the ground; and the loader went over his legs, pelvis, stomach, ribs, and chest. Waters was taken by helicopter to the hospital in Abilene and then taken by helicopter to Parkland Hospital in Dallas. The accident crushed Waters= right foot, broke his femur and his pelvis, and severed veins in his groin area. Waters also suffered ligament damage to his knee and a collapsed lung. Waters was in Parkland Hospital for one month and has undergone seven or eight surgeries.

The elements of a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the breach of that duty. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). The components of proximate cause are cause in fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., supra. Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Doe v. Boys Clubs of Greater Dallas, Inc., supra. The danger of injury is foreseeable if its general character might reasonably have been anticipated. Doe v. Boys Clubs of Greater Dallas, Inc., supra. Bailey specifically argues that, because Waters was an employee who always followed instructions, Bailey could not have foreseen that Waters would leave his designated location on the right side of the loader and move into the path of the loader.

Viewing the evidence in a light favoring the jury=s finding, we hold that it was foreseeable that Waters would be injured while walking beside the front-end loader holding onto the sheet metal. There was evidence that Waters was walking on the left side of the loader when it made a left turn. The record shows that Waters was on the left side of the loader when he was run over by the left wheels of the loader. Bailey=s first issue on appeal is overruled.

In his second issue on appeal, Bailey contends that the trial court erred in awarding Waters $100,000.00 in future medical expenses because the pleadings do not state that future medical expenses were reasonable or necessary. Waters= pleading for future medical expenses states:

Plaintiff would further show unto the Court and jury that as a direct and proximate result of the serious and painful injuries sustained by Plaintiff, he will in all reasonable medical probability require medical care and attention in the future in a sum in excess of ten thousand dollars ($10,000.00), for which sum Plaintiff now asks judgment against the Defendant.

The purpose of pleadings is to give fair and adequate notice of the facts on which the pleader bases his claim. TEX.R.CIV.P. 45 & 47; Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982). We also must construe pleadings liberally in favor of the pleader if special exceptions have not been filed. Stone v. Lawyers Title Insurance Corporation, 554 S.W.2d 183, 186 (Tex.1977). A party waives any defect, omission, or fault in a pleading that is not specifically pointed out by special exception. TEX.R.CIV.P. 90; Smith v. Grace, 919 S.W.2d 673 (Tex.App. - Dallas 1996), cert. den=d, 519 U.S. 1118 (1997).

Waters= pleading adequately informed Bailey that he would seek future medical expenses, and Bailey did not specially except to the pleading. See Ron Craft Chevrolet, Inc. v. Davis, 836 S.W.2d 672 (Tex.App. - El Paso 1992, writ den=d). Bailey waived any complaint concerning pleading deficiencies. TEX.R.APP.P. 33.1(a); Smith v. Grace, supra. Bailey=s second issue on appeal is overruled.

In his third issue on appeal, Bailey argues that the trial court erred in awarding Waters $75,000.00 for past and future physical impairment because there were no pleadings seeking damages for future physical impairment. Waters= pleading alleged that, as a Adirect result of the negligent acts and omissions of the Defendant, Plaintiff has sustained physical impairment in the past in the amount of five hundred thousand dollars ($500,000.00).@ The jury awarded Waters $75,000.00 for APhysical impairment sustained in the past and future@ without separating the past physical impairment from the future physical impairment.

During the trial, Waters presented evidence of future physical impairment; and the record does not reflect that an objection was made that the evidence varied from the pleadings. See Ron Craft Chevrolet, Inc. v. Davis, supra. There was no objection to the court=s charge which asked the jury to state an amount of recovery for past and future physical impairment. TEX.R.CIV.P. 274; see In the Matter of the Marriage of Moore, 890 S.W.2d 821 (Tex.App. - Amarillo 1994, no writ). Bailey has not preserved his complaint for review. Rule 33.1(a); Ron Craft Chevrolet, Inc. v. Davis, supra. Bailey=s third issue on appeal is overruled.

In his fourth issue on appeal, Bailey argues that the trial court erred in making an improper calculation of prejudgment interest on the judgment. The trial court awarded Waters A$144,359.19 prejudgment interest thereon at the rate of ten percent (10%) per annum from November 7, 1996 until March 31, 2000.@ Bailey contends that the trial court miscalculated the prejudgment interest and that the correct amount is $131,061.42. Waters concedes that the trial court incorrectly calculated the prejudgment interest and that this court should reduce the amount of prejudgment interest to $131,061.42. Bailey=s fourth issue on appeal is sustained, and the judgment is modified to reflect prejudgment interest in the amount of $131,061.42.

In his fifth issue on appeal, Waters complains that the trial court erred in awarding prejudgment interest on future damages. In cases involving wrongful death, personal injury, or property damage, prejudgment interest is governed by TEX. FIN. CODE ANN. ' 304.104 (Vernon Supp. 2001). Section 304.104 does not require the separation of past and future damages. C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315 (Tex.1994). Bailey=s fifth issue on appeal is overruled.

The judgment of the trial court is modified to reflect prejudgment interest in the amount of $131,061.42 and, as modified, is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

November 8, 2001

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.