569 S.W.3d 686
Tex. App.2018Background
- At the 2009 Fiesta de San Lorenzo church carnival, a brief flash fire in a 4‑H food booth severely burned multiple teenage volunteers; plaintiffs sued Heritage Operating, L.P. (propane supplier) and the Catholic Diocese of El Paso (festival host).
- Plaintiffs alleged the gold ASME propane tank under a steam table was improperly filled/defective and leaked liquid propane; defendants argued the fire was caused by water/ice dumped into hot cooking oil (a grease fire).
- Trial lasted ~one month with extensive eyewitness and dueling expert testimony about cause (propane leak v. grease fire), tank condition, and injury patterns; jury returned a take‑nothing verdict, assigning no negligence to any party.
- On appeal plaintiffs argued the no‑liability verdict was against the great weight and preponderance of the evidence and raised several trial‑error claims (improper closing argument, excluded/regulation‑based negligence per se instructions, expert discovery/ testimony issues, and jury charge errors).
- The court affirmed the judgment as to Heritage (insufficient proof Heritage filled the tank) but reversed and remanded as to the Diocese: medical burn‑pattern testimony (unrebutted) plus expert evidence of a defective/leaking valve made the jury’s no‑liability finding against the great weight of the evidence; additionally, the court held the trial court erred by submitting invitee/licensee as a fact issue—the volunteers were invitees as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation (propane leak vs grease fire) | Evidence (unrebutted burn‑pattern medical testimony and expert proof valve leaked) shows propane leak caused injuries | Fire was a short flash/grease ignition from water/ice; valve not causative; alternative actors inside booth were negligent | Reversed as to Diocese: overall evidence (esp. Dr. Griswold’s medical testimony + valve defect evidence) makes jury’s no‑liability finding against great weight for Diocese; affirmed as to Heritage (disputed whether Heritage filled tank) |
| Premises status (invitee v. licensee) | Volunteers were invitees: contracted booth use and mutual benefit; Diocese had contractual control rights | Diocese argued volunteers were licensees distinct from the 4‑H invitee club | Trial court erred submitting issue; volunteers were invitees as a matter of law; error was harmful — contributed to reversal as to Diocese |
| Closing argument invoking "nobody's responsible" / unavoidable accident | Defense closing improperly injected unavoidable‑accident idea and thereby prejudiced the jury | Defense: argued no negligence by Diocese; comment was permissible argument | Overruled on appeal — court found the remark improper but not incurable/harmful on this record; no reversal on this ground |
| Excluding negligence‑per‑se/regulatory instructions and expert evidence issues | Plaintiffs sought negligence‑per‑se instruction (Railroad Comm. LP‑Gas rule, NFPA adoption, DOT regs) and to comment on defendants’ uncalled experts; denied | Defendants opposed instruction/argument; procedural/exclusion rulings appropriate | Most rulings upheld or deemed harmless: negligence‑per‑se instruction unnecessary to preserve plaintiffs’ theory; NFPA/DOT evidence exclusion or limitation not reversibly harmful; failure to permit comment on uncalled experts not reversible given record |
Key Cases Cited
- Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (factual‑sufficiency standard and appellate review of jury findings)
- Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003) (deference and limits on factual sufficiency reversal)
- Herbert v. Herbert, 754 S.W.2d 141 (Tex. 1988) (reversal on factual sufficiency requires showing great weight of evidence supports opposite result)
- Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678 (Tex. 2008) (examples of incurable jury argument and standard for reversal)
- In re Catholic Diocese of El Paso (San Lorenzo Church), 465 S.W.3d 808 (Tex.App.—El Paso 2015) (mandamus vacating trial court’s post‑judgment new trial order)
- In re Heritage Operating, L.P., 468 S.W.3d 240 (Tex.App.—El Paso 2015) (companion mandamus opinion on new‑trial jurisdiction)
- Dillard v. Tex. Elec. Co‑Op., 157 S.W.3d 429 (Tex. 2005) (unavoidable‑accident/inferential‑rebuttal jury instruction principles)