Fredrick Dale Blevins v. Pepper-Lawson Construction, L.P., Winco Masonry, L.P., and Alejandro Sanchez
01-15-00820-CV
| Tex. App. | Oct 13, 2016Background
- October 2012 collision on a public street: Blevins (driver) rear-ended a SkyTrak telehandler driven by Sanchez (Winco employee) while attempting to pass; eyewitness Jennifer Bryan and officer testimony described SkyTrak as large, marked with reflective triangle and strobe light.
- Blevins admitted he never saw the SkyTrak before impact; eyewitnesses and emergency personnel suspected intoxication; medical records included "+ETOH" and Blevins refused blood/urine testing and left hospital against medical advice.
- Blevins sued Sanchez, Winco, and Pepper-Lawson for negligence/gross negligence; jury found all parties negligent and apportioned fault (Blevins 49%, Winco 35%, Pepper-Lawson 15%, Sanchez 1%).
- Jury awarded $150,000 past medical, $185,000 non-economic, plus other component awards (total reflected in judgment ~$170,850 after offsets/allocations noted on appeal); gross-negligence questions not answered unanimously.
- On appeal Blevins challenged (inter alia) admission of intoxication evidence, certain exclusions (subsequent remedial measures, SkyTrak lease, Sanchez’s license), alleged incurable closing argument, sufficiency of damages awards, and denial of JNOV/new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of intoxication evidence | Admission was improper and should be excluded | Evidence was properly admitted and plaintiff waived objections by not objecting at trial | Error not preserved; appellees did not object and plaintiff failed to preserve; admission affirmed |
| Closing argument re intoxication (incurable) | Counsel’s statement that intoxication caused accident was incurable and violated limine | Argument was reasonable inference from admitted evidence; plaintiff waived limine claim by not objecting | Not incurable; counsel’s statement was permissible inference; issue overruled |
| Exclusion of subsequent remedial measure (escort vehicle policy post-accident) | Evidence admissible to show control, feasibility, and impeachment | Evidence was offered for improper purpose; ownership/control/feasibility not controverted | Trial court did not abuse discretion in excluding it |
| Exclusion of SkyTrak lease agreement | Lease shows duty not to use equipment off-site and to fit with road kit; proves negligence/gross negligence | Lease breach is contractual and cannot establish tort liability to non-party; plaintiff not third-party beneficiary | Exclusion affirmed: lease not admissible to prove negligence to third party |
| Exclusion of Sanchez’s lack of Texas driver’s license | License evidence shows unfitness and negligence | Irrelevant to liability; Sanchez was trained/certified to operate SkyTrak; prejudicial/confusing | Exclusion proper under Rule 403; probative value outweighed by prejudice/confusion |
| Sufficiency of past medical expenses ($150,000 award) | Jury should have awarded full billed amount (~$231K); no expert controverting plaintiff’s affidavits | Jury could reduce award due to plaintiff’s failure to mitigate (leaving hospital, smoking, removing devices, refusing therapy) | Award supported by factually sufficient evidence given mitigation issues; issue overruled |
| Sufficiency of past/future disfigurement (past $10,000, future $0) | Awards arbitrary; photographs show severe permanent scarring | Jury saw plaintiff’s leg and could reasonably award given lack of current post-trial photos and plaintiff’s failure to mitigate | Awards not against great weight; jury discretion affirmed |
| Denial of JNOV/new trial | Should be granted for errors alleged above | No reversible errors shown on record | Denial affirmed because prior issues were overruled |
Key Cases Cited
- In re J.P.B., 180 S.W.3d 570 (Tex. 2005) (abuse-of-discretion standard for evidentiary rulings)
- Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35 (Tex. 1998) (trial court abuses discretion when acting without guiding rules; standard to uphold evidentiary rulings if any legitimate basis exists)
- Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) (harmless-error review for evidentiary rulings)
- Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986) (preservation of error when motion in limine is overruled requires contemporaneous objection at trial)
- Living Ctrs. of Tex., Inc. v. Peñalver, 256 S.W.3d 678 (Tex. 2008) (standard for incurable jury argument and when timely objection may be excused)
- Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) (factual-sufficiency review standard)
- Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003) (approach to reviewing non-economic damages by category)