RED BLUFF LLC v. NICOLE TARPLEY (2026)

MAJORITY OPINION

This is a negligence lawsuit by an employee, a certified nursing assistant, against her employer, a nursing and rehabilitation facility. Nicole Tarpley alleged she was injured when a morbidly obese patient fell onto her leg as she attempted to assist him from a bed to a wheelchair. A jury found in Tarpley's favor on negligence and premises-liability theories and awarded damages.

In its first issue, Red Bluff, LLC challenges the legal and factual sufficiency of the evidence to support the jury's liability findings under ordinary negligence and premises-liability theories. We conclude legally and factually sufficient evidence supports the jury's affirmative liability finding under an ordinary negligence theory. Accordingly, we need not reach Red Bluff's argument challenging the premises-liability finding.

In its second issue, Red Bluff challenges the legal and factual sufficiency of the evidence to support the jury's $500,000 award for future medical expenses. Finding the evidence legally sufficient, we reject this issue in part. However, because the amount awarded exceeds the amount of future medical expenses the jury reasonably could have accepted based on expert medical evidence, we sustain the challenge in part and suggest a remittitur to the amount supported by the medical evidence, conditioned on remand for a new trial if the remittitur is not accepted.

Finally, Red Bluff in its third issue challenges the legal and factual sufficiency of the evidence to support the jury's damage awards of $750,000 for past physical impairment and $2,000,000 for future physical impairment. We overrule this issue because the evidence is legally and factually sufficient.

If Tarpley timely files a remittitur as described later in this opinion, we will affirm the judgment as modified instead of reversing and remanding for a new trial.

Background

Red Bluff is a worker's compensation non-subscriber that operates a nursing and rehabilitation facility in Pasadena, Texas. Red Bluff employed Tarpley as a certified nursing assistant (“CNA”). A CNA assists residents with activities of daily living, such as dressing, bathing, feeding, and walking. CNAs are not nurses and do not administer medications, dress wounds, or perform other invasive procedures. Tarpley had five years' experience as a CNA before Red Bluff hired her, but she had been on the job only three weeks when the accident occurred.

According to Lisa Kemp, the assistant director of nursing, each CNA is supposed to receive two days of general orientation training followed by three days of floor orientation shadowing a nurse. Upon her hiring in April 2016, Tarpley received two days of general orientation training, but only one day of floor orientation. Tarpley agreed that the floor orientation part of training is supposed to last three days, but she shadowed a nurse only one day because she was told she was “ready.”

Red Bluff instructed Tarpley how to move a particular resident we refer to as “Tom,” who was morbidly obese.¹ She was told that Tom needed only one person to help with transfers, such as moving him from his bed to a wheelchair. The parties refer to this as “standby” or single-person assistance.² Tarpley was told that Tom was a single-person assist resident not only by the orientation CNA from whom she received training but also by other CNAs during her three weeks on the job before the accident.

On May 5, 2016, Tom asked Tarpley to help him from his room to the library. This required Tom to move from his bed to a wheelchair. Tarpley attempted a standby assist. She placed a walker beside the bed and locked the brakes of a wheelchair next to the walker. Tom held the walker and stood up, while Tarpley steadied him with one hand and held the wheelchair with her other hand. Tom asked if the brakes were locked, and Tarpley double-checked that they were locked. During the transfer, however, the wheelchair moved when the brakes unexpectedly disengaged, and Tom began falling. Tarpley attempted to form a “bridge” with her leg to ease Tom's fall, but her knee hyperextended and her body twisted as they both fell to the floor. She heard a “clack” in her knee but was able to get up and go outside the room to ask the charge nurse for help. She “toughed it” out through the remainder of her shift.

Although Red Bluff instructed Tarpley that moving Tom required only single-person assistance, Kemp testified that Tom, due to his weight, needed two CNAs to move him for his safety and the safety of those assisting him. Kemp said:

Q. And from your recollection and your interaction with him, is it also your understanding that [Tom] could get in and out of bed with standby assistance at least around the time of between February and May of 2016?

A. No.

Q. Why is that?

A. [Tom] was morbidly obese. For therapy, maybe [the physical therapists] could get him out of bed with standby assist. But as far as nursing staff, CNAs, LVNs, RNAs, it's a two-person, at least, to get him out for safety reasons. He's a fall precaution patient. That combined with his weight and him not getting up on a routine basis would require assistance. Not one-person standby.

Q. Can you give any reason why [Tom] would be able to get in and out of bed for the therapist and not for the CNAs?

A. Well, I do recall that [Tom] was a patient that was not always compliant with further therapies. Therefore, he would not get up out of the bed for nursing staff. He would decline. We, as far as being the nursing staff, had never gotten him out of bed with one-person standby assist.

Kemp was comfortable with her knowledge about the proper way to assist a resident from a bed to a wheelchair. She never saw others assist Tom out of his bed and was not aware that CNAs were regularly helping him move from his bed with only a single-person assist. If she had been tasked with moving Tom from his bed to a wheelchair, she would not have attempted it without assistance.

Adeyemi Alabi-Isama, Red Bluff's corporate representative, testified. He was asked whether it would be reasonable for a nurse aide to, by herself, help a patient move from a bed to a wheelchair if the patient had been observed by others as able to move in and out of bed using only single-person assistance and that fact was so reflected in the patient's chart. In his opinion, it would be reasonable for a CNA to use single-person assistance in that circumstance only if the CNA received training from a therapist in addition to normal CNA training. Additional training to move Tom, he said, needed to come from a therapist because Tom weighed over 300 pounds. In his view, and knowing the type of patient Tom was, it would not be reasonable for a CNA to attempt to move him unless a therapist was also present.

Donna Raley testified as an expert for Tarpley. A registered nurse since 1979, Raley is a CNA tester and instructor for the State of Colorado. Raley testified that Tarpley “wasn't properly train[ed]․” It was Raley's opinion that Tarpley “was not completely trained” because she did not complete nurse shadowing for a full three days. Raley likewise testified that Red Bluff improperly trained the CNAs, including Tarpley, on proper patient transfer techniques, including specifically how to move and transfer Tom. She confirmed that it is foreseeable that an employee who is trained to perform a single-person patient assist will do so as instructed and trained.

Tarpley presented medical evidence that the incident injured her knee, neck, and back. She sprained ligaments in her knee and used crutches for three months and later wore a knee brace for four additional months. The incident also caused herniated discs in her neck and lower back. After undergoing conservative treatment, she ultimately underwent a discectomy and fusion surgery at two levels in her neck. She will need a follow-up surgery in her neck. For the herniated disc at L4-5 in her lower back, her doctor recommended a spinal cord stimulator, not fusion surgery.

The court submitted two liability questions to the jury. Question number one asked whether the negligence, if any, of Red Bluff proximately caused the occurrence in question. It was accompanied by standard definitions for “negligence,” “proximate cause,” and “ordinary care.” Question number two submitted a premises-liability theory. The jury answered affirmatively to both liability questions. The jury awarded Tarpley the following damages: (a) $360,000 for past medical care; (b) $500,000 for future medical care; (c) $750,000 for past physical pain; (d) $2,000,000 for future physical pain; (e) $250,000 for past mental anguish; (f) $500,000 for future mental anguish; (g) $750,000 for past physical impairment; and (g) $2,000,000 for future physical impairment. The trial court signed a final judgment in accordance with the verdict.

Red Bluff filed post-judgment motions for judgment notwithstanding the verdict and for a new trial, but they were not timely. Asserting that it had not received timely notice of the judgment, Red Bluff filed a motion to reset the post-judgment deadlines under rule 306a, which the trial court denied. Tex. R. Civ. P. 306a. On appeal, this court affirmed the trial court's order denying Red Bluff's motion. See Red Bluff, LLC v. Tarpley, 679 S.W.3d 211, 215 (Tex. App.—Houston [14th Dist.] 2023), rev'd and remanded, 713 S.W.3d 412 (Tex. 2025). The Supreme Court of Texas granted Red Bluff's petition for review, reversed our judgment, and remanded to the trial court for consideration of Red Bluff's post-judgment motions. See Red Bluff, 713 S.W.3d at 416. After the trial court denied post-trial relief, Red Bluff filed the present appeal.

Analysis

A. Standards of Review

All of Red Bluff's issues challenge the legal and factual sufficiency of the evidence to support certain findings on which Tarpley bore the burden of proof.³ When an appellant attacks the legal sufficiency of an adverse finding on which it did not have the burden of proof, it must demonstrate that no evidence supports the finding. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam). We consider evidence favorable to the finding if a reasonable factfinder could and disregard contrary evidence unless a reasonable fact finder could not. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). We indulge every reasonable inference that would support the challenged finding. Id.; see also Graham Cent. Station, 442 S.W.3d at 263. Evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the decision under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If the evidence would enable reasonable and fair-minded people to differ in their conclusions, then the factfinder must be allowed to do so, and we may not substitute our judgment for that of the fact finder. Id. at 822.

When a party attacks the factual sufficiency of the evidence pertaining to a finding on which the party did not have the burden of proof, we consider all the evidence, but we will not reverse the judgment unless “the evidence which supports the [ ] finding is so weak as to [make the finding] clearly wrong and manifestly unjust.” Harris County v. Coats, 607 S.W.3d 359, 380-81 (Tex. App.—Houston [14th Dist.] 2020, no pet.); see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). The amount of evidence necessary to affirm is far less than the amount necessary to reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

B. Red Bluff's Challenge to Liability

In its first issue, Red Bluff contends the evidence is legally and factually insufficient to support the jury's findings in Tarpley's favor on her negligence and premises-liability claims. We address only Red Bluff's challenge to the ordinary negligence finding because we conclude the evidence is legally and factually sufficient to support liability under that theory. See Tex. R. App. P. 47.1.

Because this case involves duties allegedly owed by an employer to its employee, we refer to the body of negligence law applicable to employers. Private Texas employers may elect whether to subscribe to workers' compensation insurance. Tex. W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171, 186 (Tex. 2012) (citing Tex. Lab. Code Ann. § 406.002(a)); Kroger Co. v. Milanes, 474 S.W.3d 321, 335 (Tex. App.—Houston [14th Dist.] 2015, no pet.). If an employer chooses not to acquire workers' compensation insurance, as Red Bluff has, then it is subject to suits at common law for damages, to which it can raise only limited defenses. Williams, 371 S.W.3d at 186. In that situation, an employee injured on the job must file suit and “prove the elements of a common law negligence claim.” Id. (citing Tex. Lab. Code Ann. § 406.033(d)). To prove negligence, a party must establish a duty, a breach of that duty, and damages proximately caused by the breach. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 217 (Tex. 2015). Question number one submitted a common law negligence claim to the jury, accompanied by traditional definitions.⁴ The jury found that Red Bluff's negligence proximately caused the occurrence in question.

1. Duty

In considering whether a defendant was negligent, the threshold inquiry is whether the defendant owed the plaintiff a duty of care, which is a legal question. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006); Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998). Tarpley based her negligence claim in part on the assertion that Red Bluff failed to adequately train or instruct her on the proper way to safely move Tom. We begin by examining whether Red Bluff owed this duty.

Texas employers owe certain non-delegable duties to their employees. Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975), abrogated on other grounds by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978). Relevant here, these duties include furnishing a reasonably safe place to work and providing safety regulations, training, and supervision. See Austin, 465 S.W.3d at 215 (stating that employer may owe duties to employee in addition to those a landowner owes an invitee, including duties to train and supervise); Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 652 & n. 10 (Tex. 2007); Burk Royalty Co. v. Walls, 616 S.W.2d 911, 923-24 (Tex. 1981); Milanes, 474 S.W.3d at 335; see also LMC Complete Auto., Inc. v. Burke, 229 S.W.3d 469, 476 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (employers have duty to adequately train and supervise employees); Woodlawn Mfg., Inc. v. Robinson, 937 S.W.2d 544, 548 (Tex. App.—Texarkana 1996, writ denied) (employer has duty to provide instructions for employee safety). Employers must exercise ordinary care, based on standard negligence principles, in carrying out these duties. Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996); Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995); Milanes, 474 S.W.3d at 335.

Several courts have applied these principles and upheld liability when employer instructions or training regarding lifting procedures were not provided or, if provided, were inadequate to ensure employee safety. Brookshire Bros.s, Inc. v. Wagnon, 979 S.W.2d 343, 349-50 (Tex. App.—Tyler 1998, pet. denied) (upholding liability when “team lifting procedure” should have been required); Truco Prop., Inc. v. Charlton, 749 S.W.2d 893, 895-96 (Tex. App.—Texarkana 1988, writ denied) (when housekeeper was given only general lifting instructions, it was foreseeable that she might improperly lift a bucket used in performing her duties); Mo. Pac. R.R. Co. v. Mendoza, 337 S.W.2d 622, 629 (Tex. App.—Waco 1960, writ ref'd n.r.e.) (upholding liability against employer because it was negligent in failing to provide adequate lifting procedures or instruments for lifting heavy objects); Cabrera v. Delta Brands, Inc., 538 S.W.2d 795, 799 (Tex. App.—Texarkana 1976, writ ref'd n.r.e.) (employer was negligent in failing to instruct employee of safe method to move sheet of metal).

Further, the duty to furnish a safe work environment includes an obligation to provide adequate help under circumstances where that assistance would be necessary for the safe performance of the work required. Werner, 909 S.W.2d at 869; La. & Ark. Ry. Co. v. Gary, 780 S.W.2d 413, 416 (Tex. App.—Texarkana 1989, writ denied) (holding that factfinder could have inferred employer was negligent by not providing additional worker help to unload heavy materials). In some cases, the employer was held liable based on evidence that it negligently failed to furnish sufficient assistance to the employee, which is one of Tarpley's arguments. Wagnon, 979 S.W.2d at 349-50; Gary, 780 S.W.2d at 416.

As this authority illustrates, generally employers have a duty to train or instruct their employees in the safe performance of job functions, and they must exercise that duty with ordinary care. See, e.g., Milanes, 474 S.W.3d at 335. More to the point, if an employer fails to exercise ordinary care in training, and the employee suffers injury as a proximate result of following the employer's instructions, then the employer may be held liable. See, e.g., Wagnon, 979 S.W.2d at 349-50; Charlton, 749 S.W.2d at 895-96; Mendoza, 337 S.W.2d at 629; Cabrera, 538 S.W.2d at 799; see also Walls, 616 S.W.2d at 924-25.⁵

Nonetheless, courts, including ours, have held that employers may not have a duty to provide specialized training to employees under certain circumstances, such as when the job is neither complex nor hazardous or when the dangers incident to the work are obvious or are of common knowledge and fully understood by the employee. See Elwood, 197 S.W.3d at 794-95; Nat'l Convenience Stores, Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Likewise, this court has said, “an employer's duty to instruct applies to an inexperienced employee but not to one who is experienced in the work he is assigned.” Matherne, 987 S.W.2d at 149.

Citing this exception to the general rule, Red Bluff argues that it owed no legal duty to instruct Tarpley not to attempt to transfer Tom without assistance because, given her training and experience, the danger of attempting a lifted transfer of a bariatric patient weighing more than 300 pounds without assistance should have been obvious to her. Red Bluff cites Elwood and Matherne, as well as Brookshire Grocery Co. v. Goss,⁶ Jack in the Box, Inc. v. Skiles,⁷ and Jefferson v. Fuller.⁸ Our dissenting colleague agrees that this exception applies; we do not.

First of all, in each of these cases, the tasks being performed were not unusually dangerous or the risks at issue were commonly known. One employee, for instance, injured his hand in a car door while simply unloading a shopping cart into a customer's car;⁹ another tripped while walking around a loaded “lowboy” cart;¹⁰ and another was doing nothing more than holding open a door when a patient operating a power wheelchair ran over her foot.¹¹ Avoiding sticking one's hand in a door and the risks of stepping over a cart are risks “commonly known to anyone.” Goss, 262 S.W.3d at 795. The plaintiff in Matherne was in a car accident while making a trip to the bank for his employer. Matherne, 987 S.W.2d at 147. This court held that the employer owed no duty to train him how to safely drive or comply with traffic laws because driving required “no special skills or knowledge other than that expected of all licensed drivers.” Id. at 149. That employee, we said, was “legally responsible, independent of his employment, for knowing and obeying traffic laws.” Id. The act of driving a car was not a skill unique to the employee's job.

In contrast, the present record supports the proposition that the task of moving or transferring patients, particularly heavy patients, from a bed to a wheelchair involves procedures outside the common knowledge of the average person. Tarpley attended a school to become a CNA, where the skills she was taught included how to assist patients if they fell while being moved. Although Tarpley had five years' experience as a CNA before Red Bluff hired her, this was the first time she attempted to assist Tom moving from his bed to a wheelchair, and there is evidence a reasonable jury could have accepted that, for safety reasons, even a CNA needed additional training from a physical therapist before attempting to transfer Tom by herself. By not acknowledging this evidence, both Red Bluff and our dissenting colleague fail to view the record under the proper standard of review because they do not credit evidence a reasonable factfinder might have accepted.

Red Bluff also cites Werner, in which the supreme court rejected the plaintiff's argument that the employer was negligent by providing an inadequate work force to perform certain heavy lifting tasks. Werner claimed that he was permitted to perform heavy lifting with only one other person assisting when two additional people should have been provided. Werner, 909 S.W.2d at 869. The Werner court held there was no evidence “that two employees constituted an inadequate work force to do the required lifting,” or “that the lifting involved is unusual or poses a threat of injury.” Id. The present case is different however because there is testimony here—from Red Bluff's corporate representative no less—that transferring Tom from his bed to a wheelchair should not have been attempted without assistance from two employees.

Moreover, even assuming Red Bluff is right that it had no general legal duty to train experienced CNA employees including Tarpley, on methods to transfer residents safely, the fact remains that it undertook to provide training to her regarding that very task, including instructing Tarpley on the appropriate transfer method for Tom specifically. Having undertaken to instruct Tarpley, Red Bluff had a duty to provide adequate instruction. See W. Star Transp., Inc. v. Robison, 457 S.W.3d 178, 186 (Tex. App.—Amarillo 2015, pet. denied). Although an employer owes no duty to warn of hazards that are commonly known or already appreciated by the employee, “liability cannot be avoided by merely alleging the hazard is known or appreciated when the employer has created a work environment where an employee is required to perform a task in an unsafe manner.” Id. (emphasis added); see also Town & Country Mobile Homes, Inc. v. Bilyeu, 694 S.W.2d 651, 655 (Tex. App.—Fort Worth 1985, no writ) (employer found negligent for providing employee unsafe means of stepping down from trailer that was approximately four feet off the ground).

For these reasons, we conclude that Red Bluff owed a duty to exercise ordinary care in training Tarpley how to safely transfer Tom from his bed to a wheelchair.

2. Breach

Having concluded Red Bluff owed one of the alleged duties, we proceed to consider whether the evidence is legally and factually sufficient to support the jury's finding that the duty was breached.

As detailed above, two witnesses testified that the CNAs should not have attempted to transfer Tom without the assistance of more than one person. Red Bluff's corporate representative stated that it would not be reasonable for a CNA to attempt to move him unless a therapist was also present or unless the CNA had received additional training from a therapist. The incident report indicated that Tom should have been a two-person assist. Yet it is undisputed that Red Bluff instructed Tarpley that Tom needed only a single-person assist. Raley, Tarpley's expert, opined that Tarpley was not properly trained on how to move and transfer Tom. And she agreed that it is foreseeable that Tarpley would have followed the instruction given.

Tarpley suffered injury in performing a specific task the way Red Bluff instructed her to perform it. Indulging every reasonable inference that would support the challenged finding, we conclude that the evidence would enable reasonable and fair-minded people to find that Red Bluff failed to exercise ordinary care because the training was not adequate. Additionally, considering all of the evidence, we are unpersuaded that the evidence supporting the finding is so weak as to make the finding clearly wrong and manifestly unjust. We overrule the part of Red Bluff's first issue in which it challenges the legal and factual sufficiency of the evidence in support of question number one, which makes it unnecessary to address the remaining arguments in Red Bluff's first issue.¹²

C. Red Bluff's Challenge to Damages for Future Medical Expenses

In its second issue, Red Bluff argues that the evidence is legally and factually insufficient to support the jury's $500,000 award for Tarpley's future medical expenses. We review the legal and factual sufficiency of the evidence supporting damages under the standards set out in Part A of this opinion.

To recover damages for future medical expenses, a plaintiff must prove a reasonable probability that the medical expenses will be incurred in the future and the probable cost of those expenses. See Gunn v. McCoy, 489 S.W.3d 75, 112 (Tex. App—Houston [14th Dist.] 2016, aff'd, 554 S.W.3d 645; Whole Foods Mkt. Sw., L.P. v. Tijerina, 979 S.W.2d 768, 781 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). No precise evidence is required to satisfy this burden, though the preferred method is through expert medical testimony. Tijerina, 979 S.W.2d at 781.

The jury may base its finding of a reasonable probability on a consideration of the “substance of the testimony.” See Ins. Co. of N. Am. v. Myers, 411 S.W.2d 710, 713 (Tex. 1966). The jury may consider such factors as the injuries the plaintiff suffered, the medical care rendered before trial, the progress toward recovery under the treatment received, and the plaintiff's condition at the time of trial. Exxon Mobil Corp. v. Brown, 729 S.W.3d 625, 656 (Tex. App.—Houston [14th Dist.] 2026, no pet.).

The jury has broad discretion to award damages within the range of the evidence presented at trial. MEMC Pasadena, Inc. v. Riddle Power, LLC, 472 S.W.3d 379, 408 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Although some damages in personal injury cases are not subject to precise mathematical calculation, a jury must have an evidentiary basis for its damage awards. Salinas v. Rafati, 948 S.W.2d 286, 289 (Tex. 1997); Weidner v. Sanchez, 14 S.W.3d 353, 372 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

Dr. Henry Small, an orthopedic surgeon, provided the important testimony on this topic. He diagnosed Tarpley with herniated discs in her neck and lower back. He performed a fusion in her neck and discectomy at two levels. The cost of her neck surgery was $235,551.49. Dr. Small testified that Tarpley will need a second, adjacent level operation on her neck, which will cost the same as the first surgery.

Dr. Small did not recommend fusion surgery for Tarpley's lower back; instead, he recommended a spinal cord stimulator. But Tarpley offered no evidence regarding the probable and reasonable cost of a spinal cord stimulator. Nor has Tarpley directed us to evidence of the probable cost of any other reasonably probable future medical treatment besides a second neck surgery.

Viewing the evidence in the light most favorable to the challenged finding and indulging every reasonable inference to support it, Tarpley submitted more than a scintilla of evidence to show that with a reasonable medical probability she could expect future medical care in the form of anticipated future neck surgery for which there was some evidence of its anticipated cost of $235,551.49. Consequently, we overrule Red Bluff's legal sufficiency challenge to the future medical expenses award.

As for any other future medical expenses, however, Tarpley presented no evidence as to the probable cost of any treatment that would probably be needed in the future. Thus, the record is legally and factually sufficient to support a recovery for future medical expenses of $235,551.49, but no more. The judgment awards Tarpley $500,000. Because the record supports a maximum of $235,551.49 for future medical care, we sustain Red Bluff's argument that the award is excessive.

A court of appeals may exercise its authority to suggest a remittitur when there is insufficient evidence to support the full amount of damages awarded but sufficient evidence to support a lesser award. Tex. R. App. P. 46.3; see Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987) (“If part of a damage verdict lacks sufficient evidentiary support, the proper course is to suggest a remittitur of that part of the verdict. The party prevailing in the trial court should be given the option of accepting the remittitur or having the case remanded.”); PNS Stores, Inc. v. Munguia, 484 S.W.3d 503, 513 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The prevailing party in the trial court then has the option to accept the remittitur or have the case remanded for a new trial. PNS Stores, Inc., 484 S.W.3d at 513. Red Bluff requests this relief, and we agree it is appropriate.

Concluding the evidence is sufficient to support an award of $235,551.49 in future medical care expenses, we suggest a remittitur of $264,448.51 of the future medical care expenses, which would modify the award of damages in the judgment from $500,000 to $235,551.49. Tex. R. App. P. 46.3.

D. Red Bluff's Challenge to Damages for Past and Future Physical Impairment

In its final issue, Red Bluff challenges the legal and factual sufficiency of the evidence to support the jury's awards of $750,000 for past physical impairment and $2,000,000 for future physical impairment.

Physical impairment damages are intended to compensate for the loss of the injured party's former lifestyle. See Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 412 (Tex. App.—Houston [14th Dist.] 2001, jdgm't vacated). To recover damages for physical impairment, the plaintiff must show that the effect of the physical impairment is substantial and extends beyond any pain, suffering, mental anguish, lost wages, or earning capacity. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003). Such losses have traditionally focused on the claimant's non-employment daily functions or favorite activities, such as sports, hobbies, and other forms of recreation. Exxon Mobil Corp., 729 S.W.3d at 652; see Figueroa v. Davis, 318 S.W.3d 53, 64-65 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Patlyek v. Brittain, 149 S.W.3d 781, 787 (Tex. App.—Austin 2004, pet. denied).

Tarpley was 34 years old when the injury occurred, 36 or 37 when the neck fusion was performed, and 40 at the time of trial. She is married with children, the youngest of whom was 9 at the time of trial. She had no problems with her knee, back, or neck before the accident, but they all hurt that evening and into the following day. Her knee gave her the most trouble immediately after the fall; she was on crutches for three months, and a knee brace for four additional months. She was not able to ambulate well during that time because her knee ligaments were sprained. She developed floating patella syndrome, and as a result her knee still constantly “clicks and pops.” Her mobility was limited because of her knee injury, and she was unable to walk around like she could before.

Her back pain would not go away, and she was unable to write without numbness in her fingers and arm. Her neck was the most painful, and she had migraines. She could not lift or play with her children anymore and still cannot after the neck surgery. And she can no longer go camping with her children. Before the surgery, she could barely turn her head and it was difficult to drive. Although the neck surgery helped, her range of motion is only about 60% of what it was before the accident.

Tarpley also described how her injuries have impacted her relationship with her husband. She used to go antiquing with him but could not do that anymore because it requires standing too long. They also used to restore furniture, but she cannot lift furniture anymore. She continued:

A. Like I said, I wasn't able to go antiquing. That was really our dates. We never went out to go to dinner or anything like that. We -- every now and then we would go out dancing or something. We can't -- we couldn't do that anymore, antiquing and things.

So a year-and-a-half ago, he was diagnosed with Stage 4 lung cancer, terminal, and it metastasized to his bones. He's now wheelchair-bound. I can't help him.

Q. Have you had to get help to help him?

A. I did. We had to hire a hospice nurse.

Q. How does that make you feel?

A. I don't feel -- I told him in sickness and health when I said my vows, and I can do things that don't involve actually taking care of him. I can go get him a drink. I can go do things like that. But I can't pick him up and put him in the wheelchair. And -- or help him to bathe. And he's -- like I said, he's terminal, and he can't walk. So it's -- the metastasis has eaten up his hip bone.

This testimony is consistent with the types of limitations that have been held to be legally sufficient evidence of physical impairment. See Garza v. Escamilla, 712 S.W.3d 718, 726 (Tex. App.—Houston [14th Dist.] 2025, no pet.) (the plaintiff cannot enjoy spending time outdoors or with her grandchildren); Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 599 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (the plaintiff “could no longer work out or engage in other physical activities he had enjoyed in the past”); Patlyek, 149 S.W.3d at 787 (listing examples, including inability to run, bicycle, participate in triathlons, and play with children; past inability to walk and future difficulties in running, standing, and climbing; inability to ascend or descend stairs or kneel and difficulty in standing for long periods of time; loss of 75 percent of strength in arm, which subsequently contributed to a plaintiff's falling, breaking a leg, and being confined to a wheelchair).

Red Bluff contends that Tarpley's evidence fails to describe a disruption of daily activities or hobbies beyond pain and suffering and mental anguish, for which the jury compensated her. We disagree. Her evidence focused on her non-employment daily functions and favorite activities, hobbies, and forms of recreation. See Exxon Mobil Corp., 729 S.W.3d at 652.

We hold that the evidence is legally and factually sufficient to support the damage awards for past and future physical impairment.

Conclusion

We overrule Red Bluff's first and third issues. We sustain in part Red Bluff's second issue with respect to future medical expenses because we conclude the evidence is insufficient to support an amount exceeding $235,551.49. In this situation we may suggest a remittitur, and we do so here as Red Bluff requests. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 124 (Tex. 2009). The judgment awards $500,000 to Tarpley for future medical expenses. We suggest a remittitur of $264,448.51, which would result in a recovery of $235,551.49 for future medical expenses.

The party prevailing in the trial court should be given the option of accepting the remittitur or having the case remanded for a new trial. Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987). If Tarpley files a remittitur with the clerk of this court within twenty days from the date of this opinion, we will modify the trial court's judgment accordingly and affirm the judgment as modified. If the remittitur is not timely filed, we will reverse the trial court's judgment and remand this case for a new trial on liability and damages. Tex. R. App. P. 46.3; see Tex. R. App. P. 44.1(b) (“The court may not order a separate trial solely on unliquidated damages if liability is contested.”).

FOOTNOTES

1.   Tom weighed more than 300 pounds.

2.   “Standby” assistance means that a patient is able to move from a bed to a wheelchair only requiring one person to stand close enough to reach the patient and assist if necessary. We use the terms “standby” assist and “single-person” assist interchangeably.

3.   Red Bluff preserved its legal sufficiency challenges in its motion for judgment notwithstanding the verdict and in its motion for new trial. Tex. R. App. P. 44.1; Abira Med. Lab'ys, LLC v. Greater Houston Lab'y Servs., L.L.C., No. 14-24-00194-CV, 2026 WL 113424, at *2 (Tex. App.—Houston [14th Dist.] Jan. 15, 2026, no pet.) (mem. op.). Red Bluff preserved its factual sufficiency challenges in its motion for new trial. Tex. R. Civ. P. 324(b)(2).

4.   The charge defined “negligence” as “the failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.” “Ordinary care” was defined as “that degree of care that a person of ordinary prudence would use under the same or similar circumstances.”

5.   In Walls, an employee was injured while following the employer's specific instructions regarding how to pull up wet tubing at a well site. 616 S.W.2d at 914. The jury found the employer negligent because the instruction given by the employer failed to follow approved safety practices. Id. at 915. While Walls is not directly on point because the negligence issue in that case involved the propriety of a broad form submission, it is notable because employer negligence liability was upheld when, like here, an employee was injured while performing his job as instructed, and a jury found the employer's instructions inadequate.

6.   262 S.W.3d 793, 794-95 (Tex. 2008).

7.   221 S.W.3d 566, 568 (Tex. 2007).

8.   No. 01-11-00199-CV, 2012 WL 2357431, at *11-12 (Tex. App.—Houston [1st Dist.] June 21, 2012, pet. denied).

9.   Elwood, 197 S.W.3d at 794-95.

10.   Goss, 262 S.W.3d at 794.

11.   Jefferson, 2012 WL 2357431, at *11-12.

12.   Red Bluff does not challenge the evidence supporting the proximate cause element.

Kevin Jewell Justice