BROWNSVILLE PUBLIC UTILITIES BOARD v. ROBERT VASQUEZ

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Court of Appeals of Texas, Corpus Christi-Edinburg.

BROWNSVILLE PUBLIC UTILITIES BOARD, Appellant, v. ROBERT VASQUEZ, Appellee.

NUMBER 13-16-078-CV

Decided: February 01, 2018

Before Chief Justice Valdez and Justices Contreras and Benavides

MEMORANDUM OPINION

Appellant Brownsville Public Utilities Board (“PUB”) appeals from a judgment based on a jury verdict in favor of appellee Robert Vasquez. By four issues, PUB contends that the evidence is insufficient to support a finding that the incident at issue and resulting injuries were foreseeable or to support the jury's award of certain damages. We affirm.

I. BACKGROUND 1

On May 11, 2011, while stopped at a red light, Vasquez heard a loud noise and “blacked out” or went unconscious. Luis S. Juarez, a Brownsville police officer, responded to the incident and wrote in his report the following: “Unknown how one of the ceramic fixtures or spheres that are used in the telephone posts to attach the power lines had exploded.” Emergency personnel transported Vasquez to the hospital where he was treated for a laceration to his face, receiving thirty stitches, and a skull fracture. Vasquez was released from the hospital a few hours later.

Vasquez sued PUB, claiming that PUB had control over the utility line that caused his injuries, that PUB “had a duty to exercise the degree of care that a reasonably careful person would use to avoid harm to others under circumstances [like] those described,” and that PUB's negligence proximately caused his damages and injuries. A jury trial was held. At trial, a PUB employee testified that at the time of the incident, PUB was on notice that it had not rained in Brownsville and that terminators often fail when there are drought conditions. PUB's expert witness testified that terminators will undeniably fail, there is no denying that terminators fail, and that if someone is within the field where the shrapnel discharges, there is a possibility that the shrapnel can hit the person.

After hearing the evidence, the jury found that PUB's negligence proximately caused the occurrence in question and the jury awarded Vasquez $2,000 for loss of past earnings, approximately $8,000 for medical expenses, $15,000 for disfigurement in the past, $15,000 for disfigurement that, in reasonable probability, Vasquez will sustain in the future, $60,000 for physical pain in the past, $40,000 for physical pain that, in reasonable probability, Vasquez will sustain in the future, $40,000 for mental anguish in the past, and $40,000 for mental anguish that, in reasonable probability, Vasquez will sustain in the future. This appeal followed.

II. STANDARD OF REVIEW

In a legal sufficiency review, we review the evidence in the light most favorable to the verdict, crediting any favorable evidence if a reasonable fact finder could and disregarding any contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 821–22 (Tex. 2005). The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” Id. at 827. In a factual sufficiency review, we examine all the evidence in the record and if the finding is so against the great weight of the evidence as to be clearly wrong and unjust, we will reverse. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam).

A no-evidence point will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); see City of Keller, 168 S.W.3d at 810. Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

The elements of negligence are a legal duty, breach of that duty, and damages proximately caused by that breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). “The two elements of proximate cause are cause in fact (or substantial factor) and foreseeability” which “cannot be satisfied by mere conjecture, guess, or speculation.” Id. at 798–99.

III. FORESEEABILITY 2

By its first issue, PUB contends that “[t]he negligent acts and omissions, if any, of [PUB] as established by the evidence presented at trial were not such that it would have been foreseeable that the incident at issue and resulting injuries to [Vasquez] were likely to occur, thereby negating the existence of any legal duty owed to [Vasquez] and breached by [PUB].” Vasquez responds that the “evidence established that the general danger rather than the exact sequence of events, was foreseeable when the evidence is viewed in the light most favorable to the verdict.”

The evidence is sufficient to support foreseeability if the plaintiff establishes that the defendant should have anticipated the dangers that its negligent act or omission created for others. Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 590 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). “Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable,” id., and “that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission.” Carrerra v. Yanez, 491 S.W.3d 90, 94 (Tex. App.—San Antonio 2016, no pet.).

The trial court admitted evidence that when the terminator caused Vasquez's injury, Brownsville suffered from a drought. PUB employee, Juan Garza, testified that on the day after the incident, he received a complaint that there was a power outage near the area where the incident occurred. Garza said that he went to fix the terminator that caused the power outage that day. When asked by Vasquez's trial counsel what caused the power outage, Garza replied, “We don't know it if was corrosion, if it was faulty equipment. We don't know if it was an animal that went up there and made a short. When we went out there, we went to restore power. So we just fixed the problem.” Garza agreed that the porcelain terminator caused the problem. The terminator in question was missing and Garza noticed porcelain/ceramic pieces of the terminator “around the pole.” Garza acknowledged that when the terminator failed it was possible Vasquez was hit with the ceramic/porcelain debris and that the debris could hit anybody that is within a “certain radius of the pole.”

Regarding the debris that accumulates on the terminators, Garza said, “We can have like dirt on them. We can have animal droppings. We can have a whole bunch of things and what it will cause, it will cause a short which will in turn open up the fuse.” Garza explained, however, that terminator failure does not usually happen because it rains and clears up any contamination. Garza agreed that when there is contamination in the air, it increases the probability that the terminators will fail. When asked by Vasquez's trial counsel if a drought or lack of rain increases the probability of contamination of the terminators, Garza replied, “Yes.” Garza recalled that during the time when the incident occurred, PUB was on notice that it had not rained in Brownsville. Vasquez's trial counsel asked, “And do you agree with me that if contamination comes to the point where there is a shortage, these spheres [ (terminators) ] can explode, correct?” Garza responded, “I wouldn't say explode, but they do fail.” Garza explained that “Usually when we see the[m] fail, usually they break and they fall off.” When Vazquez's trial counsel asked, “[W]hen there is contamination in the air, when it hasn't rained, it's reasonably foreseeable that these [terminators] were to fail, correct,” and Garza replied, “Yes.” Vasquez's trial counsel asked, “I believe you stated earlier it's reasonably foreseeable that if one of these fails and comes apart, it could end up hurting somebody out in the road,” and Garza said, “if they were under the pole, yes.” Garza clarified that it is reasonably foreseeable that someone standing under the pole could get hit by pieces of the terminator. Garza agreed that when there is a drought “the reasonable thing to do is to go wash these spheres” in order to prevent blackouts. Garza stated that PUB washes the terminators during droughts to prevent blackouts.

Garza testified that a terminator made of a plastic that melts when it fails is available for use and that PUB has used these plastic terminators. Garza acknowledged that the terminator that failed and injured Vasquez had since been replaced with a plastic terminator. Vasquez's trial counsel asked, “do you agree with me it's foreseeable that when there is a drought they're going to get dirty,” “it's foreseeable that if they get dirty they could fail,” “it's foreseeable if they fail, they could break apart,” and “it's foreseeable if something like this hits your head, it could potentially injure someone underneath the pole?” To all questions, Garza responded, “Correct.”

PUB also called Garza as a witness, and on direct examination by PUB's trial counsel, Garza testified that when he arrived at the scene of the incident, he found debris from the terminator within a twenty-foot radius around the pole. On cross-examination by Vasquez's trial counsel, Garza agreed that the terminator that failed in this case would have fallen on the adjacent road.

Forest Smith, PUB's expert witness who is a professional engineer, testified that

[t]erminator means that when the cable comes up out of the ground from serving stores or businesses and it goes up the pole where the power is located, the end of the cable has to have something that will join it to a wire that will connect to the power line. And so that's called a terminator that they install on the end of that cable.

Regarding what caused the terminator's failure, Smith stated,

I would say the probability would be it was contamination that was caused by the atmosphere here in the Brownsville area, being some 23 miles from the Gulf of Mexico, and that there is a process that this contamination can eventually cause deterioration to the point that you can get a flash over. And once you get an arch or you get a long spark with a lot of energy, then porcelain can shatter. That's just the nature of porcelain. Because it's ceramic material, it's like glass.

Smith explained that what happened in this case,

apparently this insulator on this terminator had developed enough contamination sufficient for it to flashover and perhaps it may have even developed a crack internally that we'll never know about. But, at any rate, it had some kind of a weakness that when the flashover occurred, it occurred with such force that the flashover event or arching event itself was explosive. It had enough force to be explosive and make the insulator explode. And that's what happened in this case. That's sort of a rare situation that you don't see often but occasionally it does happen.

Smith testified that “there is no denying that it happens.” When asked by PUB's trial counsel to clarify, Smith said, “Well, Number 1, there is no denying they [terminators] catastrophically fail, and then, Number 2, if someone is in the field where the shrapnel is being discharged then certainly there is a possibility that they can be hit and injured.”

During cross-examination by Vasquez's trial counsel, Smith agreed with the following: (1) “Contamination increases the probability of terminator failure”; (2) “Droughts and dirt increase the chances of contamination of terminators”: (3) “There was a lack of rain in 2011 causing contamination of terminators”; (4) “Utilities have a duty to clean contaminated terminators”; (5) “The terminator ․ that injured Mr. Vasquez fragmented because it was probably contaminated”: (6) “PUB has not provided any records to show that they had cleaned or washed the terminator prior to Mr. Vasquez's date of injury”: (7) “PUB has not provided any records kept in the regular course of business to show that they cleaned any terminators in Brownsville prior to the date of the accident”; and (8) “PUB has a duty to maintain the public safe from their equipment failure” within “a reasonable standard of care.”

Garza and Smith both agreed that when a terminator is contaminated during a drought it could fail and that the terminator could break apart and cause injury. Specifically, Smith testified that there is no denying that if a terminator fails and a person is near that terminator the person could be injured. Garza stated “Correct” when asked if “it's foreseeable if something like this hits your head, it could potentially injure someone underneath the pole?” Garza further agreed that it is foreseeable that during a drought, there would be contamination and potential failure of a terminator. Smith agreed that contamination increases the risk of terminator failure and that during the time when the incident occurred, there was a drought, which also increases the risk of contamination failure. Garza testified that when terminators fail “usually they break and they fall off” and that when it has not rained, it is foreseeable that the terminators can fail. In addition, Garza agreed that when this incident occurred, PUB was on notice that it had not rained in Brownsville.

Vasquez was not required to show that this specific incident was foreseeable. He was required to show that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission. See Carrerra, 491 S.W.3d at 94. Thus, here, the jury could have reasonably found that a person of ordinary intelligence should have anticipated that during the drought, contamination could cause the terminators to fail, fall apart, and injure a person who was within a certain radius of the pole. Viewing this evidence in the light most favorable to the verdict, crediting any favorable evidence if a reasonable fact finder could and disregarding any contrary evidence unless a reasonable fact finder could not, we conclude that the evidence would enable reasonable and fair-minded people to find that PUB should have anticipated the danger that its negligent act or omission created for others. City of Keller, 168 S.W.3d at 827; Katy Springs & Mfg., Inc., 476 S.W.3d at 590. Moreover, we cannot conclude that the finding is so against the great weight of the evidence as to be clearly wrong and unjust. Ortiz, 917 S.W.2d at 772. We overrule PUB's first issue.

IV. FUTURE PAIN AND SUFFERING

By its second issue, PUB contends that Vasquez presented no evidence or at best insufficient evidence to support an award of damages for future pain and suffering. Specifically, PUB argues that there was no objective evidence that Vasquez's injury will continue to adversely affect Vasquez.

Future pain and suffering damages are necessarily speculative, and it is peculiarly within the province of the jury to set the amount of such damages. Rosenblum v. Bloom, 492 S.W.2d 321, 325 (Tex. Civ. App.—Waco 1973, writ ref'd n.r.e.). However, there must be some objective evidence that an injury will continue to adversely affect the party claiming such damages. Strahan v. Davis, 872 S.W.2d 828, 834 (Tex. App.—Waco 1994, writ denied). Physical pain and suffering may be established by circumstantial evidence. Figueroa v. Davis, 318 S.W.3d 53, 62 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Damages for future physical pain and suffering “is not subject to precise mathematical calculations or objective analysis and is particularly within the province of the jury to resolve and to determine appropriate amounts.” Tagle v. Galvan, 155 S.W.3d 510, 518 (Tex. App.—San Antonio 2004, no pet.).

Vasquez testified that due to the skull fracture he suffered in this incident, he has constant pain. He stated that he wakes up with a headache that lasts all day long, which requires that he take the medication Naproxen six or seven times per day, which then causes him stomach pain. Vasquez's doctor testified that taking Naproxen for long periods of time could lead to problems such as ulcers, kidney problems, and/or high blood pressure. Vasquez's doctor also testified that it was unsurprising that four years after the injury, Vasquez continued to experience headaches because of the skull fracture. Vasquez stated that the area of his injury is numb, it itches, and it tingles. Vasquez specified that the area was numb at the time of his testimony. Vasquez said, “I tell my wife you can probably stick a needle in there and I wouldn't feel it.”

Based on this evidence, and under these circumstances, the jury could have reasonably inferred that Vasquez would continue to suffer the headaches that he suffered at the time of the trial and that Vasquez would continue to take Naproxen to treat his headaches. See Figueroa, 318 S.W.3d at 62. As the jury is provided a great deal of discretion in awarding future pain and suffering, and there is some evidence in the record supporting such a finding, viewing the evidence in the light most favorable to the finding, crediting any favorable evidence if a reasonable fact finder could and disregarding any contrary evidence unless a reasonable fact finder could not, we conclude that the evidence would enable reasonable and fair-minded people to find that Vasquez was entitled to future pain and suffering damages. City of Keller, 168 S.W.3d at 827. Moreover, we cannot conclude that the finding is so against the great weight of the evidence as to be clearly wrong and unjust. Ortiz, 917 S.W.2d at 772. We overrule PUB's second issue.

V. FUTURE MENTAL ANGUISH

By its third issue, PUB contends that Vasquez “presented no evidence, or at best insufficient evidence, to support the jury's award of $40,000 in damages, for future mental anguish.”

Mental anguish is a “relatively high degree of mental pain and distress. ․ [It is] more than mere disappointment, anger, resentment or embarrassment, although it may include all of these.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). “[M]ental anguish is only compensable if it causes a substantial disruption in daily routine or a high degree of mental pain and distress.” Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013) (internal quotation and editorial marks omitted).

To recover mental anguish damages, the requesting party must present evidence of compensable mental anguish and evidence to justify the amount awarded. Id. In Texas, recovery of mental anguish damages in virtually all personal injury actions has been authorized. Johnson v. Methodist Hosp., 226 S.W.3d 525, 529 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Krishnan v. Sepulveda, 916 S.W.2d 478, 481 (Tex. 1995)). “This is because, ‘[w]here serious bodily injury is inflicted, ․ we know that some degree of physical and mental suffering is the necessary result.’ ” Id. (quoting City of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex. 1997)). However, in cases where mental anguish damages are recoverable, the party must present some evidence of the nature, duration, and severity of the mental anguish. Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011).

“Mental anguish can be established through witness testimony explaining how the injured party felt and how the injured party's life was disrupted.” Katy Springs & Mfg., Inc., 476 S.W.3d at 594. However, “[t]here are no magic words to establish mental anguish; rather, courts can look at the totality of the circumstances, as well as the words used.” Id. Although a jury may not award mental anguish damages simply because the party establishes that a physical injury occurred, the traumatic nature of the injury is a factor that we can consider in determining whether the award of mental anguish damages is supported by the evidence. Id. “Damages for future mental anguish are recoverable only if there is a reasonable probability that they will be suffered in the future.” Hicks v. Ricardo, 834 S.W.2d 587, 590 (Tex. App.—Houston [1st Dist.] 1992, no writ).

When his trial counsel asked on direct examination if he was experiencing any discomfort in his life, Vasquez replied that his wife has noticed that he is “not the same” and that when he is driving he holds the steering wheel tightly especially when driving over the bridge to South Padre Island, Texas. Vasquez said, “It's just not the same. Any loud noise or anything, you know, I panic.” Vasquez testified on cross-examination by PUB's trial counsel that prior to this incident he slept approximately eight hours per night and after the accident he can only sleep three hours per night although he “wished” he could get more.

From the above-cited evidence, the jury could have reasonably inferred that Vasquez's injury has caused him to suffer mental anguish and that the mental anguish caused a substantial disruption in his daily routine or a high degree of mental pain and distress. See Hancock v. 400 S.W.3d at 68; see also Pentes Design, Inc. v. Perez, 840 S.W.2d 75, 80 (Tex. App.—Corpus Christi 1992, writ denied) (“The fact finder may infer such damages[, as physical pain, mental anguish, and disfigurement] from the nature of the injury itself in the present case, though there may be no direct testimony of pain or mental anguish from [the injured party] herself.”). In addition, the jury could have reasonably inferred that because Vasquez continued to suffer a substantial disruption in his daily routine or a high degree of mental pain and suffering four years after the incident, he would suffer future mental anguish.

Accordingly, viewing the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable fact finders could and disregarding contrary evidence unless they could not, see Maritime Overseas Corp., 971 S.W.2d at 406; see also City of Keller, 168 S.W.3d at 822, and looking at the totality of the circumstances as well as the words used by the witnesses, we conclude that there is some evidence to support the jury's award of past and future mental anguish. Katy Springs & Mfg., Inc., 476 S.W.3d at 594. Thus, the evidence is legally sufficient to support the judgment. Moreover, we cannot conclude that the finding is so against the great weight of the evidence as to be clearly wrong and unjust. Ortiz, 917 S.W.2d at 772. We overrule PUB's third issue.

VI. FUTURE DISFIGUREMENT

By its fourth issue, PUB contends that Vasquez “presented no evidence or at best insufficient evidence, to support the jury's award of $15,000 in damages for future disfigurement.” Specifically, PUB argues that although Vasquez presented evidence that he has a disfiguring scar due to the injury, he has failed to seek plastic surgery, therefore, he is not entitled to damages for future disfigurement. PUB cites no authority, and as we are not required to scour the case law to make its argument, we find none to support such an argument. Moreover, recovery for “[f]uture disfigurement is necessarily speculative,” so each case must be judged on its own facts. Pentes Design, Inc., 840 S.W.2d at 80–81. And, “there is no mathematical yardstick by which one can measure damages for it.” Tri–State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 494 (Tex. App.—Houston [14th Dist.] 1989, no writ). “Under Texas law, ‘disfigurement’ has been defined as ‘that which impairs or injures the beauty, symmetry, or appearance of a person ․ that which renders unsightly, misshapen or imperfect, or deforms in some manner.’ ” Kroger Co. v. Brown, 267 S.W.3d 320, 322–23 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Goldman v. Torres, 161 Tex. 437, 341 S.W.2d 154, 160 (1960)); SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 252 (Tex. App.—Texarkana 2005, no pet.)).

Here, the jury saw Vasquez's scar and determined that the scar constituted a disfigurement because the scar impaired or injured his appearance in some manner. See id. From the evidence presented, the jury could have reasonably determined that Vasquez's scar was permanent and that he would suffer future disfigurement due that scar as even PUB acknowledges that Vasquez's scar requires plastic surgery. See SeaRiver Maritime, Inc. v. Pike, No. 13-05-0033-CV, 2006 WL 1553264, at *6 (Tex. App.—Corpus Christi June 6, 2006, pet. denied) (mem. op.) (finding evidence sufficient to support future disfigurement based on evidence that the plaintiff had a scar and that the plaintiff could possibly need future spinal surgery, which could also cause scarring). And, we are not persuaded by PUB's argument that we may reverse the judgment because Vasquez has not had plastic surgery. We overrule PUB's fourth issue.

VII. CONCLUSION

We affirm the trial court's judgment.

FOOTNOTES

1.   Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.

2.   PUB only challenges this element of negligence.

ROGELIO VALDEZ Chief Justice

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