Dallas Area Rapid Transit v. Morris, David
434 S.W.3d 752
Tex. App.2014Background
- David Morris fell and suffered severe leg fractures after a DART bus lurched as it left a stop on January 12, 2010; he had scanned his bus pass and had not crossed the yellow line near the farebox when the bus lurched.
- Morris sued Dallas Area Rapid Transit (DART) alleging negligent operation of the bus; at trial the jury found the driver 75% negligent and Morris 25% negligent and awarded substantial damages (subject to a $100,000 cap under the Texas Tort Claims Act).
- DART appealed, raising four principal complaints about the trial: (1) submission of a “high degree of care” instruction for a common carrier; (2) refusal to give an unavoidable-accident instruction; (3) exclusion of evidence about Morris’s 2006 stroke; and (4) alleged incurable improper jury argument by Morris’s counsel.
- The trial court had refused admission of Morris’s prior-stroke records after limine-order violations and found no connection in the record between the 2006 stroke and the 2010 fall.
- The trial court prepared and submitted the jury charge including a pattern definition of “high degree of care”; the jury returned a verdict for Morris and the trial court entered judgment (reduced for comparative negligence and subject to statutory cap).
Issues
| Issue | Plaintiff's Argument (Morris) | Defendant's Argument (DART) | Held |
|---|---|---|---|
| 1. Whether the court erred by submitting a "high degree of care" instruction | Not required to plead the specific standard; negligence pleaded gave fair notice; DART is a common carrier so high degree of care applies | DART argued it is not a common carrier and Morris failed to plead that higher standard or request it | Court held DART is a common carrier; instruction accurate, supported by pleadings/evidence, and not required to be specially pleaded; no error |
| 2. Whether the court erred in refusing an unavoidable-accident instruction | Not addressed as separate affirmative claim; trial evidence allowed jury to find no negligence | DART argued conflicting evidence supported unavoidable accident instruction | Court held no evidence of a nonhuman cause; instruction not reasonably necessary; refusal not error |
| 3. Whether exclusion of Morris's 2006 stroke records and related cross-examination was error | Argued records showed residual deficits that could explain the fall | DART argued stroke history bore on stability/gait and causation; sought to admit records and cross-examine | Court held records irrelevant to proximate cause of 2010 fall, limine violations occurred, and exclusion was not an abuse of discretion nor outcome-determinative |
| 4. Whether appellee's counsel made incurable, reversible jury argument | Counsel argued jury should send a message, accused DART of cover-up, sought punitive award | DART argued those arguments appealed to passion/prejudice and were incurable | Court held arguments not of the rare incurable type; record supported verdict; no reversible harm |
Key Cases Cited
- Shupe v. Lingafelter, 192 S.W.3d 577 (Tex. 2006) (standard for reviewing jury-charge submissions and omissions)
- Speed Boat Leasing, Inc. v. Elmer, 124 S.W.3d 210 (Tex. 2003) (defines common-carrier inquiry and high degree of care standard)
- Mount Pleasant Indep. Sch. Dist. v. Lindburg, 766 S.W.2d 208 (Tex. 1989) (discusses when heightened duty applies and ‘‘primary function’’ test)
- Hill v. Winn-Dixie Texas, Inc., 849 S.W.2d 802 (Tex. 1992) (unavoidable-accident instruction proper only for nonhuman proximate causes)
- Living Centers of Texas, Inc. v. Penalver, 256 S.W.3d 678 (Tex. 2008) (describes incurable jury argument and when appellate reversal is warranted)
- City of Dallas v. Jackson, 450 S.W.2d 62 (Tex. 1970) (recognizes high degree of care owed by passenger carriers)