*1
powers
in
same
as the commission when con-
providing
qualified
cializes
trained and
143.057(f).
§
ducting
hearing.
Id.
places
arbitrators
the seventh Boll Weevil
The
constitutionality.
hearing
sep-
the side of
power
factor on
to conduct
cannot be
obligations
accompa-
from the
that
arated
final
factor asks
The
Boll Weevil
ny
private hearing
it. See id. Because
legislature
provided suffi
whether the
has
required
examiners are
to follow the stan-
private
dele
guide
cient standards to
in
requirements
chap-
dards and
set forth
Weevil,
gate in his work. Boll
appeal
hearing
brought
ter 143 when
earlier,
hearing
noted
exam
472. As
eighth
chapter,
under that
we conclude
duties,
accordingly
iner has the same
of con-
weighs
Boll Weevil factor
favor
standards, as the
must adhere to the same
stitutionality.
conducting
hearing.
commission when
See Tex.
eight
factors considered
Of
Local
Gov’t
Code
Ann.
143.057(f); Blair,
§
cally chapter chapter set forth municipalities adopt
allows additional hearings.
standards and rules for Id. part summary judg- of his 143.008. As evidence, Byrd portion submitted a ment TEXAS, OF HEALTHCARE CENTERS regulations rules and of the civil service Laporte Healthcare INC. d/b/a adopted by City. Those rules include Center, Appellant, requirements for examination of wit- nesses, documentary presentation RIGBY, Individually Virginia Martine evidence, procedure, the recordation of the of the Estate of and as Administratrix of the decision. presentation and the Deceased, Appel Underwood, Jewell City argues private hearing lee. required by organi- examiners are not No. 14-00-00790-CV. affiliated, they zations with which are such FMCS, by the rules and as the to abide Texas, Appeals Court of adopted pursu- (14th Dist.). standards set forth Houston only by chapter ant to 143. It is virtue of Dec. 2002. 143, however, private examin- chapter Feb. Rehearing Overruled appeals granted power are to hear ers by police fighters. Chap- officers and fire hearing examin- private
ter 143 states that the same duties as well as the
ers have *4 Weinstein, Houston, Diana L. B.
David Dallas, Faust, appel- Cooper, Brent R. lant. Hardin, Lee,
Rusty Timothy Texas, F. Hous- Centers of Inc. By October ton, appellee. begun Jones inappropriate had to exhibit behavior at facility. the Anahuac Nurses Panel consists Chief Justice at Anahuac testified that Jones repeatedly BRISTER and Justices FOWLER and public sat rooms of the nursing SEYMORE. pants home with his unzipped pe- and his nis out in front of other residents. Anah- CORRECTED OPINION kept uac home cats and kittens at SEYMORE, CHARLES W. Justice. facility thought pets because was therapeutic would be for the residents. withdraw our opinion We of March Nurses observed Jones several times on 2002 and issue this opinion. Ap- corrected patio dining using outside the room pellee’s Motion For Rehearing is over- cats as masturbation aids. ruled. Healthcare Centers of Texas d/b/a observing After several in- incidents of LaPorte appeals Healthcare Center cats, appropriate behavior with Joanne
judgment Virginia in favor of Rig- Martine Mathis, Anahuac, a nurse at observed following grounds: on the exempla- sexually Jones attempting to assault a *5 ry damages capped by chap- are barred or male resident a closed restroom. The ter 41 of the Texas Civil Practice and blind, disoriented, resident was and suf- (2) Code; Remedies legally the evidence is fered from Alzheimer’s disease. Jones and factually insufficient to support the was also seen into wandering residents’ jury’s verdict on the cause of action for closing rooms and doors. their When con- (3) negligence; the trial court failed to behavior, fronted this aberrant Jones provide segregation exemplary for dam- angry wrongdoing. became and denied (4) ages jury in the charge; the actual and reported daughter The of a staff member excessive; exemplary damage awards were that Jones tried to follow her into a linen and because of cumulative errors of pulled that he on closet. She stated law, Healthcare is entitled to a new trial in get into the closet with her. doorknob to justice. the interest of and fairness The nurses and staff overall belief of the awarded million in punitive $50 at Anahuac a threat was that Jones was damages damages. and million actual $5 other residents and should not be judge The trial remitted those amounts to million, nursing Although million and home. the nurses at- respectively. $10 $1 tempted more Finding prohibits punitive closely that Texas law to monitor Jones residents, than por- enough we vacate that other there was tion of judgment fully protect patients. the court’s and affirm the staff to Sev- judgment. remainder of the eral staff testified that it was members sexually foreseeable he would assault an
Facts elderly, day disabled resident. The Jones Anahuac, discharged was from Alicia Mor- This attempted case arises out of an gan, nursing, wrote on his director of by sexual assault Morris Jones on Jewel chart, harming “This resident is at risk for Underwood while both were residents at others.” informed repeatedly LaPorte Healthcare The nurses Center. Jones was Rapp admitted to Anahuac in Dr. Keith aberrant behav- Healthcare Center Jones’s Rapp December 1995. Anahuac ior. Dr. medical director of and LaPorte was the nursing are homes owned Healthcare both the Anahuac and LaPorte Healthcare physician ositioned a staff member San personal Centers and the female Although Jones was tak- Jacinto sex. Jones and Mrs. Underwood. medication, ing he continued behave Huff, Dr. a psychologist, Kenneth inappropriately at San Jacinto. Mrs. asked to evaluate and treat for de- Jones that Jones should not McDaniel concluded weeks, pression in After April 1996. two placed any nursing home and that he Dr. Dr. Huff Rapp directed that discontin- needed a environment. more restrictive treatment, stating ue that no Jones was accept Anahuac Jones from refused longer depressed. Dr. Huff later saw Rapp San Jacinto. Dr. then called Green 17, 1996, Jones on and diagnosed October Acres, nursing home owned another major him having depression sexual he of Texas where Centers as, paraphilia, Dr. Huff which defined a medical The administrator at director. “sexual Dr. acting out.” Huff’s records Acres records and Green reviewed Jones’s contained observations Jones’s sexual refused to take him because he did not expressed impropriety with cats type Rapp Dr. want of resident. then concern that behave in Jones a sexu- Greer, Dorsey called the administrator of ally manner inappropriate with low-func- LaPorte home. tioning female residents. Dr. Huff con- “very dangerous” cluded that Jones was Dorsey Dr. Rapp Greer testified that placed to be in a needed more secure potential him he new told had a resident facility. reported Dr. Huff that a crisis Anahuac, for LaPorte had been at who atmosphere surrounding Jones had Hospital. discharged then to San Jacinto reached a crescendo mid-October Anahuac Rapp Dr. told had Greer Dr. reported Huff that Jones’s daughter accept refused Jones San Jacinto. *6 help father, wanted for her get to but she testimony, Dr. According Rapp to Greer’s bring could not him to her home because stated that Jones had been a model resi- she not trust him around could small chil- except inappropri- dent for one incident of dren. It ate sexual with a cat. was Dr. behavior opinion Rapp’s that the incident occurred 27, 1996, On November Jones was invol- his because Jones did not take medication. untarily psychiatric committed to unit at admitting in Greer testified that new Hospital. San Dr. Jacinto Wamble of San resident, policy his to review the Jacinto Health Care Center in wrote discharging records from institution likely Jones’s chart that Jones “is to cause pertinent information about serious harm to others.” On December ordinarily the resident. would He send 10, 1996, sought Dr. to discharge Wamble nursing psychiatric the director Jones Jacinto. nursing from San records, hospital to but he did review home and director administrator of nurs- not do so the case of Jones. Jones was McDaniel, ing at Anahuac sent Robin to on December admitted LaPorte Anahuac, nursing at assistant director 1996. that had he Greer testified known to San Jacinto to determine whether Jones Anahuac, history at he would Jones’s could Anahuac. Mrs. return to McDaniel have moved closer to the nurses’ Jones reviewed Jones’s records discovered discharged station and would have him videotaped that he masturbating had been per- “the first time he went near another verbally the open, aggressive had been son.” staff, hoarding with the and had been food days in his after room—all behaviors Jones had ex- Two three Jones’s admis- Further, sion, quality prop- Raglund, hibited at Anahuac. Jones Glenda assur- LaPorte, nurse, anee nurse for piece Anahuac and found a paper with Jones’s it, bills, learned Jones had been admitted to La- name on three one dollar and two immediately Porte. She called Greer and pills right on the side of Mrs. Underwood’s him, “Why in bleep you bed, asked did let pillow. below her Leakey Mrs. ex- person get facility?” into our She pressed concern because the note and reported history Jones’s at Anahuac and money were on the adja- side of the bed told Greer he should arrangements make Leakey cent to the wall. Mrs. testified place to Jones a more facility secure that Jones too weak to move the bed possible. began soon as to explore Greer and too short to reach over Mrs. Under- Jones, discharging alternatives for howev- wood. She reached the conclusion that er, pursuant regulations, State Jones only Jones could have reached that loca- discharged could not be until displayed he by getting tion into Mrs. Underwood’s bed. aberrant behavior at LaPorte. reporting After this incident to Greer and nursing, Leakey director of asked
Greer instructed nursing the director of if Greer Jones could be moved to a room to meet with the require nurses and them station, closer to the but Greer closely. watch Jones He instructed her refused. not to tell the nurses about Jones’s behav-
ior at Anahuac because he did not want a Virginia Rigby placed testified that she “witch hunt.” The director of nursing did her mother LaPorte Healthcare Center tell the nurses at LaPorte about Rigby visited her mother Mrs. Jones’s behavior Anahuac. day. By for several hours twice Decem- ber
The nurses and Mrs. Underwood was blind and nurses’ aids at LaPorte deaf, mostly began noticing but was alert and aware of They Jones’s behavior. 27, 1996, her complained surroundings. On December he wandered into resi- rooms, outdoors, Rigby Mrs. a one dollar dents’ discovered bill urinated became under the covers of her mother’s near angry when he was asked to bed use the rest- indoors, room her mother’s waist. Mrs. took the angry and become when money asked to to the nurses’ station because she take shower. One nurse’s aid thought might testified that one of the nurses have help she had to ask for dropped it. No one at LaPorte told Mrs. remove Jones from a female resident’s *7 Rigby money in previously finding about verbally per- room when she could not her mother’s suade him bed. to leave. Several LaPorte if they nurses testified that had known 29, 1996, Rigby On Mrs. visit- December threat, safety they Jones was a would have morning. ed her in the mother around 8:00 him moved to a room much closer to the hour, After about an she walked down the nurses’ station and would have monitored hall rounded get cup a of coffee. As she him every protect fifteen minutes to room, way the corner on her back residents. Jones’s room was at the end of “Oh, say, Rigby Mrs. heard her mother hall across from Mrs. Underwood’s that her mother Rigby oh.” Mrs. testified room, far from the nurses’ station. frightened. Rigby sounded Mrs. ran to reported nurse LaPorte to Greer and her mother’s room and discovered Jones nursing the director of that Jones was Rigby yelled top on of her mother. Mrs. frequently roaming seen into Mrs. Under- help nurses to her. Annie one wood’s room. nurses, Rivers, Rigby one of the and Mrs. Approximately days pulled ten after Jones’s An- Jones off Mrs. Underwood. LaPorte, Leakey, admission to Terri nie Rivers testified that when Jones was Rapp Dr. LaPorte and Underwood, jury found The penis his top on of Mrs. proxi- negligence her, negligent and their his were they pulled him off of After erect. harm to Mrs. Underwood mately caused hanging out flaeid and was penis became further found that Rigby. It and Mrs. gown pajamas. Mrs. Underwood’s of his by Mrs. Underwood harm sustained neck, and pushed up around her had been from malice attribut- Rigby Mrs. resulted wearing nothing underneath she was The Rapp. Dr. to LaPorte and able discharged gown. subsequently Jones was and Mrs. Underwood Rigby Mrs. awarded Hospital. to Rusk State damages each actual million $2.5 Rapp Dr. Contrary testimony, to Greer’s damages punitive million assessed $50 of Jones’s fully testified he informed Greer trial court remitted against LaPorte. The history at Anahuac and at San Jacinto. $500,000 puni- each and damages actual term Rapp Dr. testified he did not use the million. tive to $10 resident,” told there was “model Greer did long period of time which Jones Damages Punitive Rapp Dr. not exhibit unusual behavior. issue, In Healthcare claims sec- its first telling denied Greer Jones’s aberrant the Texas Civil Practice tion 41.005 of sexual was a “one-time incident.” behavior exempla- Remedies Code bars an award Rapp encouraged Dr. Greer to call the Rigby’s and ry Mrs. damages because inquire director of at Anahuac and caused damages were Mrs. Underwood’s Rapp about Jones. Dr. testified he did not party, Jones. criminal act of a third safety he believe Jones was risk when Ann. Tex. PRác. & RemlCode Civ. LaPorte, on entered nor was the assault (Vernon 1997). 41.005, Section 41.005 Mrs. Underwood foreseeable. Resulting from Criminal entitled “Harm defense, presented LaPorte Act,” provides: deposition testimony Virginia Rigby. (a) from harm re- arising In an action Rigby prior Mrs. testified that to her assault, theft, or other sulting from an death, Mrs. Underwood was blind for six act, not award criminal court years. months and had been deaf for two a defen- exemplary damages against Rigby did seek Mrs. testified she act of of the criminal dant because professional a mental health after her another. moth- mother’s death. The assault on her (b) by Subsec- exemption provided shock, Rigby er caused Mrs. but did (a) apply if: tion does not any physical pain. her cause Mrs. (1) criminal act was committed in her disruption testified she suffered no defendant; employee assault, daily day routine. On the respon- criminally the defendant if mother understood she did not know her *8 criminal act party as a to the sible Rigby further happening. was Mrs. what 7, Chapter provisions under the of that, assault, her prior testified Code; Penal communicate, by could either mother (3) at a loca- hand, the criminal act occurred by speaking. her or After squeezing where, time of the assault, at the did not com- tion the Mrs. Underwood act, the defendant was tes- criminal any municate in manner. Mrs. maintaining a common nuisance in her tified that she relived the assault provisions Chapter under the mind a million times.” She stated “about 125, Practice and Remedies Civil changed her mother for the worse Code, reason- and had not made “just over.” everything felt like was pleadings, making nui- attempts able to abate the live introduction sance; pleadings unnecessary. or or evidence Musick, First Am. Houston Sav. (4) the criminal act resulted from the (Tex.1983). 764, judicial S.W.2d ad or knowing defendant’s intentional only adversary mission not relieves an statutory duty of a under violation proof of the fact introducing from admitted D, 92, Subchapter Chapter Prop- from it. party disputing but also bars the Code, erty and the criminal act Gevinson v. Manhattan Constr. Co. statutory occurred after the dead- Okla., 458, 466 compliance duty, line for with conclusively by established Once a fact is (c) In arising an action out of a criminal admission, judicial jury questions concern by employee, act committed an the submitted. ing the fact need not be See employer may punitive liable for Enters., v. Pate & Pate Chilton Ins. Co. only but if: Inc., (TexApp.- 884-886 (1) principal doing the the authorized denied). ac writ After San Antonio act; manner of the the admission, judicial knowledging plaintiffs (2) agent princi- was unfit and the must determine whether we pal employing acted with malice in punitive damages exempt liability from him; retaining or Tex. Crv. & Rem. provisions under the (3) agent employed in a man- § 41.005. Code agerial capacity acting and was scope employment; or argues section Rigby further (4) employer manager or a the statute apply 41.005 does not because
employer approved ratified or recovery allows silently, impliedly, act. resulting from the defen punitive damages disagree with that dant’s conduct. We 41.005(a) punitive Section bans First, following reasons. assertion damages for the criminal conduct of anoth and described legislature our enumerated undisputed er. It is that the direct cause exemption exceptions to a defendant’s four of Mrs. Underwood’s harm was the crimi damages because of punitive from Rigby argues nal conduct of another. criminal act of another. Tex. Civ. charge jury the court’s allowed 41.005(b). In the notwithstanding Peac. Ann. punitive damages award & Rem.Code (1) evidence that instant there was no the concurrent criminal act of another. employee the assault was committed disagree Rigby’s We assertion for (Health (2) defendant; defendant First, injury following reasons. care) as a criminally responsible find Mrs. Underwood was indivisible. We under the to the criminal act of assault highly improbable that the awarded (3) Code; Chapter Penal provisions of million solely in punitive damages be $50 a location occurred at the criminal act criminal act of the cause of the where, time, was main at the defendant home, separate apart crimi nuisance; taining a common Second, in her sixth nal act Jones. from the defendant’s criminal act resulted petition, plaintiff admits that the
amended D, duty Subchapter under violation of a harm resulted from a criminal assault *9 are no Chapter Property Code. There judicial Morris Jones. The trial court took exemptions. legislature The did peti amended plaintiffs notice of the sixth concurrent judicial express occurs when an that a defendant’s tion. admission (without responsibili- criminal conclusively of fact is established criminal act assertion 41.005(b)(2)) eight.2 Assess- sponse question consti to number ty as a under exception statutory exemption to tutes question eight number damages ment of liability punitive damages. We response found in to was “for the conduct exception or create another to cannot add Question six question number six.” number punitive statutory exemption from dam jury could not posited such statutory of ages. It is a familiar rule criminal act of distinguish between the exception plain construction that an makes Healthcare. and malice attributed to Jones apply the intent that the statute should puni- Appellee jury contends the assessed Richards, State v. excepted. all cases not mal- damages of Healthcare’s tive because (1957); 157 Tex. ice, of the criminal act of not because Morris, Ins. Co. Am. v. of N. interpreting applying In or another. 667, scenario, implicit any 41.005 to it seems responding affirmatively jury ques- In to anticipated jury legislature that our a six1, jury tion concluded that number acted malice might find a defendant with plaintiffs to the harm resulted from “mal- plaintiff harm a though even Healthcare, by through of and ice” by caused the criminal act of another. Be- principal.” jury “vice awarded $50,000,000 exemplary damages plaintiff in re- cause admitted her harm was Texas, you by convincing pal 1. Do find clear and evi- Centers of Inc. of Healthcare d/b/a dence that the harm to Jewell Underwood or The La Porte Healthcare Center. Virginia Rigby Patterson resulted from malice principal" corporation A "vice of a Texas, hire, of Defendant Healthcare Centers of authority person who has the dis- Ins. the La Porte Center? D/b/a charge, employees corpora- and direct of the convincing "Clear and evidence” means the authority manage tion or who has the degree proof produces measure or corporation department or a or divi- entire firm belief or conviction of the truth of sion of its business. allegations sought established. answered, jury "yes”.] which the [To "Malice” means: (a) specific money, any, intent Healthcare Centers of if should be as- What sum of Texas, Inc. The La Porte Healthcare against d/b/a Defendant Healthcare Centers sessed injury Texas, Center to cause substantial to Jewell The La Porte Healthcare Inc. d/b/a Patterson; Virginia Rigby Underwood or or of Jewell Center and awarded to the Estate (b) an act or omission Healthcare Centers Virginia Rigby Underwood and Patterson as Texas, Inc. The La Porte Healthcare d/b/a exemplary damages conduct found in for the Center Question response to No. 6? which, (I) objectively when viewed from the damages "Exemplary damages” means Texas, standpoint of Healthcare Centers of by way punish- penalty as a awarded Inc. The La Porte Healthcare Center d/b/a damages punitive Exemplary ment. include occurrence, at the time of its involved an damages. risk, degree considering extreme determining exemplary the amount of probability magnitude potential and of the evidence, you any, if should consider others; harm of relating to: Texas, (ii) of Centers of which Healthcare wrong. nature of the a. The Inc. The La Porte Healthcare Center d/b/a involved. b. The character conduct actual, subjective had awareness of the risk wrong- degree culpability c. The involved, proceeded but nevertheless doer. rights, safety, conscious indifference to the par- and sensibilities of the d. The situation or welfare of others. ties concerned. order for Health- You are instructed that in offends Texas, e. The extent to which such conduct care Centers of The La Porte Inc. d/b/a malice, justice propriety. public sense of Healthcare Center to have acted with cents, any. if Answer in dollars you specific find such intent or such act must princi- "$50 mil”.] which the answered [To or omission was committed a vice *10 41.005(b)(2) Jones, Further, by the criminal caused conduct Section allows re- recovering exemplary covery punitive damages she is from if barred the defen- despite criminally responsible under section 41.005 dant is as a to definition, jury’s finding that criminal act. if By Healthcare acted with the one can finding responsible party, malice. The affirmative of malice as a act be is a against supercede accept Rigby’s Healthcare does not concurrent act. If we con- 41.005, (b)(2) judicial appellant’s effect of admission that struction of section section nullity. glean Mrs. Underwood’s harm caused when would become a cannot We by application she was assaulted Morris Jones. different of this See statute Ins., 884-886; physical Chilton S.W.2d Hori- under these facts because Auld, Corp. injury plaintiffs Healthcare v. 34 emotional to was caused zon/CMS by by party. an assault committed another Appellee requested duty and the court “It is court to sub- administer nine3, written, jury question mitted number which the law as it is and not to make law; jury may asked the to determine whether and however harsh a statute be, actions crimi- to or seem to Healthcare’s constituted the seem whatever be omission, ... injury elderly nal act of to an or disabled courts cannot make it apply, § person. apply See Tex. Pen.Code Ann. 22.04 to cases to which does (Vernon Supp.2002). pertain to assuming We note issue without functions govern- legislative department number nine was not submitted with cor- Cross, 218, 224, rect definitions and instructions for 83 Tex. corpo- ment.” Turner (1892). however, criminal responsibility, recognize rate our We S.W. interpretation impression of 41.005 renders this defect this is a case of first with re- legisla- gard interpretation moot. have concluded that the to of section 41.005. We statute, provide exception Finding ambiguity ture did not an to ex- no we emption punitive damages plaintiffs recovery when hold section 41.005 bars punitive damages notwithstanding the defendant commits a concurrent criminal responsible party. jury questions act answers to num- affirmative 41.005(b)(2) PRAC. & bered six and nine. Healthcare’s first is- Tex. Civ. RemlCode Supp.2002. Vernon sue is sustained. statutory duty you you legal
3. Do find that the conduct have 1. the actor has a or act; knowing injury to malice found or care, elderly custody, an or disabled individual? or the actor has assumed elderly of an or disabled individual. control person knowingly, A with acts or knowl- injury” physical pain, "Bodily means ill- edge, respect to a result of his conduct ness, physical any impairment or or condi- when he is aware that his conduct is reason- tion. ably certain to cause the result. bodily injury bodily injury” "Serious means person knowing injury commits to an risk of death or that that creates a substantial elderly knowingly or disabled individual if he death, disfigure- permanent causes serious act, omission, knowingly or causes ment, impairment of the protracted or loss or elderly an or disabled individual: any bodily organ. member or function of bodily injury; A. serious "No” for each of the fol- Answer "Yes” or deficiency, impairment, B. serious mental lowing: injury; or Texas, Centers of Inc. bodily injury. C. d/b/a La Porte Healthcare Center An omission that causes a condition de- (3) through injury Rapp Dr. scribed above is Keith "yes” for elderly both.] individual if: which the answered [To or disabled
621 1.03(a)(4). health § The definition of jury’s Id. next contends the Healthcare a home. supported by provider of malice is not suffi- includes finding care 1.03(a)(3). In and third § cient evidence. its second Id.
issues, challenges the assess- not holding bystander In that a could damages. punitive ment and amount of case, the malpractice recover a medical Centers, jury finding The- that Healthcare stated: Supreme Court mal- through vice-principal, acted with of medical treatment is very nature recovery a plaintiff ice could entitle the layperson. the Even often traumatic to Corp. punitive damages. See Mobil Oil procedure proves to be when a medical (Tex.1998) Ellender, 917, 921 v. shock patient, may to the it beneficial (holding corporation that a can be liable ordinary bystander the senses gross if it punitive damages commits A bystander it. who witnesses through or malice the actions negligence medical distinguish between be able Because vice-principal). or inactions of helps patient that the treatment recovery punitive 41.005 bars section malice, physician’s is harmful. conduct damages despite jury finding patient, not to sufficiency primary duty is we need not address the pol- by these support finding patient’s the malice or relatives. Guided evidence concerns, by- punitive damages. icy Texas’[s] we hold that the amount of See Cf. Moriel, Transp. 10, precludes by- of action Ins. Co. v. stander cause (Tex.1994) (When malpractice recovery confronted with in medical stander challenge sufficiency to the factual of evi- cases. award, exemplary damages of an
dence Trevino, Edinburg Hosp. Auth. appeals court of must detail the relevant The event S.W.2d in support against evidence of or a medical was not Mrs. witnessed award). aby administered mem- procedure being Therefore, is staff. ber of LaPorte’s Bystander Recovery contemplat- type of case the court issue, con- its fourth Healthcare first recovery precluded bystander ed when recovery by- Rigby’s tends that Mrs. gemrally MLIA. art. 4590L under the See injuries precluded by stander the Medi- plaintiffs Healthcare contends Liability cal Insurance Act. See Tex.Rev. protect for LaPorte’s failure to Mrs. suit (Vernon Supp. Crv. Stat. Ann. art. 4590i Mr. amounts to a from Jones Underwood 2002). The MLIA was enacted to alleviate departure accepted from stan “claimed perceived malpractice medical insurance safety,” of ... and is within dards by reforming liability care crisis health malpractice. The definition of medical care laws ensure affordable health however, “safety,” cannot be read word reducing malpractice medical insurance isolation, “accepted stan phrase and the (b). 1.02(a)(5), The act rates. See id. safety” ... must read con dard of only against to a cause of action applies safety “accepted standard of text to mean provider physician health care or for treat- Rog industry.” care within the health ment, treatment, or other claimed lack of Inc., Serv., Nursing ers v. Crossroads accepted from standards of departure (TexApp.-Corpus 418-19 care, care, safety that health medical the issue pet.). no Because Christi injury to or death of proximately results Mr. protecting Mrs. Underwood patient’s claim or patient, whether accepted stan- governed is not of action sounds tort or contract. Jones cause dard cause did not safety within health care indus- her mother suffer serious *12 bodily attempted the try, governed by injury rather is the stan- from sexual care, on plaintiffs dard the assault. Healthcare dwells the fact ordinary of cause not physically that Mrs. Underwood was simple negligence of one of not action is injured. injury, however, Physical is not governed by article 4590L In this recovery. required bystander Rigby Mrs. sued Healthcare and others for simple negligence failing take ade- that argues by Healthcare “[m]ost quate safety protect measures to its resi- stander involve contemporaneous cases from a known sexual deviant. dents perception by injuries a close relative of Therefore, article 4590i does not preclude death, bodily injuries serious resulting Mrs. Rigby’s bystander damages. See inju ... or permanently disabling Charity Sisters Incarnate Word of ry.” not cite and have Healthcare does we Gobert, 25, 28 (Tex.App.-Hous- the required not a case where court found 1997, pet) ton (holding no that [1st Dist.] complainant physical injury by prereq the ordinary negli- cause of action was one of an recovery uisite to to recover mental gence malpractice plain- rather than where guish recognizing bystand In a damages. sexually pa- tiff assaulted was another action, Supreme has er cause of the Court tient). found, may recover, bystander a “Before that he or must establish the defen she next Healthcare contends that dant inflicted or negligently has serious bystander Mrs. recover dam Rigby cannot primary fatal victim.” injuries on ages Mrs. did not suf because Underwood 593, (Tex. Kerr, Boyles v. injury.” bodily bystander fer “serious 1993). has recog Supreme The Court negligently who seri witnesses inflicted physical injury. nized a requirement injury may ous or fatal recover for mental (1) anguish bystander determining if whether Mrs. Under- was located injury, near wood serious we review the scene of accident as contrast suffered Rigby ed witnessed. Those away with one who was distance from the events Mrs. it; (2) shocking dis- shock resulted a direct events of such a and from were anguish bystander turbing was a impact upon emotional from nature that mental previously As sensory contemporaneous highly and observ foreseeable result. accident, noted, yell mother hearing ance as contrasted with her after hall, Rigby down witnessed Jones learning of the accident from others after Mrs. occurrence; lying on mother with her moth- bystander top of her related, around neck. closely clothing pulled up as con er’s her victim were to, help Mrs. forced any relationship Rigby an absence trasted with nurse, pull Jones off of her only physically or a distant relation presence Martinez, Jones, pulled off of Mrs. ship. Hosp. v. 990 mother. when Hermann Underwood, stated, get didn’t let me 476, (Tex.App.-Houston “You [14th S.W.2d denied). yet.” very it in put does pet. chance Dist.] establishes the Rigby fact that of this event challenge the Mrs. occurrence torment, suffering assault, pain, that located near the scene emotional the jury. she as a of which submitted experienced shock direct result were Salinas, Baggage Co. v. contemporaneous of the as Fort Worth Cab & observance (Tex.App.-Fort sault, Worth Rigby that Mrs. and Mrs. Under writ) (stating although moth- closely no wood were related. Healthcare injury physical did from sexu- Rigby recover be- er not suffer claims that Mrs. cannot Healthcare next contends assault, assault children who witnessed al Rigby nor Mrs. Underwood neither Mrs. anguish damages mental could recover required rigorous standards satisfied the Therefore, bystanders). Mrs. is en- anguish damages. recovery of mental bystander. damages to recover as a titled considered When the elements amorphous, jury include the more by the Anguish Recovery for Pain and Mental mental an discretionary damages, such as *13 next contends that suffering, the determi guish pain for damages gen Mrs. Underwood could not recover amount of will nation of the jury. to the discretion of the physical pain anguish erally and mental because be left Inc. Mur Hosp., Texarkana v. cognitively experience she could not it. See Mem’l (Tex.1997). dock, 836, 841 The 946 S.W.2d Healthcare contends there is no evidence money the amount of that determination of that aware of Jones’s Mrs. Underwood was compensate plaintiff pain for will mentally that could contem attack or she anguish mental involves a consideration plate any resulting harm to herself for no mathematical stan elements which argues Jones’s conduct. Healthcare except impartial jury an dard exists what yell, cry, because Mrs. Underwood did not Tire, adequate. deem Dico Inc. v. scream, or thrash about that she must not Cisneros, 776, (Tex.App. 792 958 S.W.2d happening to have been aware what was denied). 1997, Unless -CorpusChristi writ contrary, her. To the several witnesses large is as to indicate that it the award so testified to Mrs. Underwood’s demeanor prejudice, or passion, was influenced after before and Jones’s assault. motive, improper verdict that, assault, prior to the nurses testified Therefore, aside. Id. will not be set moaning Mrs. Underwood could make excessive, if not is question damages, sounds and she realized someone was jury to properly left for the determine. touching They that af her. also testified Corp. v. Mar Owens-Corning Fiberglas assault, attempted ter the she did re tin, 712, (Tex.App.-Dallas 719 S.W.2d spond they something well and could tell writ). in com jury’s no discretion Underwood, wrong was with her. Louis limited to pensation anguish for mental is son, Mrs. Underwood’s testified that short disruption that which causes “substantial Christmas, ly appeared his before mother routine, daily high or a plaintiffs frightened. He said she seemed to want degree pain of mental and distress.” something, to tell him but was unable to Ins., 925 Saenz v. Fid. & Guar. S.W.2d assault, express thoughts. her After the (Tex.1996). 607, 614 Mr. Underwood testified that his mother give up seemed to on life. Mrs. was for an The standard of review alerted to the attack her mother shout complaint is suf damages factual excessive “Oh, ing, loudly oh” so could hear her she Maritime Over ficiency of the evidence. from down the hall. The fact that Mrs. Ellis, Corp. v. seas responded to the assault Underwood (Tex.1998). employ the same test We out that she aware crying is evidence any determining damages excessive happening to her. The evi what sufficiency question. Pope factual (Tex.1986). to find that Mrs. Moore, dence is sufficient Under evidence, and emo physical keeping wood suffered conscious mind review the We role, ours, attempted judge pain jury’s tional as a result of the evidence, assign credibility of the sexual assault. weight given testimony, proper. and to She contends the amount award- resolve inconsistencies within or conflicts original judgment prior ed Cain v. among testimony. the witnesses’ remittitur should stand. Texas Rule of Bain, 175, 176 Appellate Procedure 46.2 allows the remit- ting party part to contend that all or In this trial judge re remittitur should not have been required, in support viewed the evidence of both party but the remitting perfect must actual and exemplary damages. As noted Tex.R.App. appeal point. to raise that P. earlier, judge factually found insuffi 26.1(d) 46.2. Rule of the Texas Rules of support cient evidence to the amount of Appellate provides and ordered a remittitur. To Procedure that if appellant’s sustain challenge to the trial appeal, par- files a notice of another award, judge’s damage we would have to ty may appeal file a notice of within the supporting conclude the evidence the find 26.1(a) appealable period in Rule stated ing clearly is so weak as to indicate it is days fourteen after the first filed notice of *14 See id. Healthcare unjust. wrong and Tex.R.App. appeal, later. whichever is P. argues Rigby’s daily that Mrs. routine was (d). 26.1(a), signed in Judgment was altered; therefore, she cannot recover 31, January trial court on 2000. LaPorte anguish mental damages. Disruption in 30, appeal filed its notice of on June plaintiffs daily only routine is not the Therefore, Rigby’s appeal Mrs. notice of element to be considered. The was 14, July Rigby 2000. Mrs. was due filed also entitled to consider whether the event time to file motion to extend notice of Rigby high degree caused Mrs. of mental 31, 2000, appeal August on which this pain and distress. The evidence shows court denied. Because we do not have a Rigby when Mrs. observed the at timely perfected appeal Rigby, from Mrs. mother, tempted sexual on assault her she cross-point we cannot consider her chal- scared, angry, crying, shaking, was and Prior to lenging the remittitur. submis- might again.” afraid “he do it Rigby Mrs. filed a appeal, sion of this Healthcare mo- Rigby and her son testified that Mrs. Rigby’s cross-point. tion to strike Mrs. passes every day LaPorte and for several granted. That motion is assault, every weeks after the time she LaPorte, passed Rigby Mrs. relived the
assault and cried. Mrs. Cause testified Proximate event the most traumatic event of issue, In its fifth her life. She also still testified she has factually and legally claims the evidence is nightmares about regard the assault. With finding of support jury’s insufficient to pain to Mrs. Underwood’s mental and an reviewing legal In suf proximate cause. son, guish, daughter, grandson, her all the ficiency challenge, we consider evi caretakers testified Mrs. Underwood’s de in most favorable to the light dence meanor dramatically changed after indulge every verdict and reasonable infer the assault. Because the evidence is suffi in the ence deducible from evidence support cient to award as Merrell Dow prevailing party’s favor. remitted, we overrule Healthcare’s fourth Havner, Pharm., 706, Inc. v. issue. (Tex.1997). reviewing 711 a factual suf Remittitur ficiency challenge, consider all the evi we contrary to the supporting dence both Rigby attempts Mrs. to file a Plas-Tex., Inc. v. U.S. cross-point im- alleging jury’s finding. the remittitur was
625 (Tex. 442, rather than the so-called Corp., responsibility, 445 Steel 1989). sense,” every includes “philosophic which great one of the number of events without Proximate cause consists oc- any happening would not have which foreseeability. both cause fact and Tra Perez, 819 Siegler, Lear Inc. v. curred. 94, City Mesquite, vis v. 830 98 S.W.2d (Tex.1991). 470, 472 S.W.2d (Tex.1992). in fact that the Cause means defendant’s act or omission was a substan pa- Supreme considered the Court bringing injury, tial factor about the in Bell v. legal causation rameters which would not otherwise have occurred. (Tex.1968). In 117 Campbell, S.W.2d Assocs., Prudential Ins. Co. Bell, collided, at- Jefferson and a trailer two cars At some S.W.2d disengaged of them tached to one chain, point the causal the defendant’s A num- opposite lane. overturned remotely conduct be too connected and three of them people gathered, ber of plaintiffs injury with the to constitute le the trailer when attempting were to move gal Springall causation. v. Fredericks Id. they struck another vehicle. were Clinic, burg Hosp. & parties court held that the 119. The writ). (Tex.Civ.App.-San Antonio no proxi- involved in the first accident did not legally The law does not hold one re mately plaintiffs’ injuries, reasoning: cause sponsible for the remote results of his charged against All acts and omissions wrongful acts and therefore a line must *15 respondents had run their course and be drawn between immediate and re complete. negligence Their did were proximate mote causes. The doctrine of in actively any way contribute employed cause is to determine and fix injuries simply in this suit. It involved and is this line the result of an effort [the created a condition which attracted avoid, possible the courts to as far as scene, they plaintiffs] to the where were metaphysical philosophical niceties injured by party. a third causation, in age-old discussion of Id. at 122. lay general appli and to down a rule of will, cation nearly may which as as be Healthcare, Boys citing Doe v. Clubs of rule, by general apply practical done a a (Tex. Dallas, Inc., Greater
test, the test of common experience, to 1995), the harm suffered Mrs. contends human determining legal conduct when proxi and Mrs. was not Underwood rights legal liability. failing mately negligence caused its Id. protect from Jones. Mrs. Underwood Doe, Boys working In a volunteer for the legal
To be cause another’s boys sexually molested three who harm, Club enough it is not that the harm would Boys Id. at members of the Club. were not have occurred had the actor not been Club, Boys boys then sued the negligent, negligence must also be a vol claiming investigate the failure to its bringing factor in substantial about boys’ dam proximately All unteers caused plaintiffs Pump harm. Union Co. v. Doe, britton, In the volunteer ages. Id. at 476. community part service as performing The word “substantial” is used to denote was driving for a conviction of the fact that the defendant’s conduct has sentence volun producing an the harm as to intoxicated. Id. at 475. The such effect while people regard had one other DWI conviction. lead reasonable teer also cause, prior there lurks the idea of Id. The court held the DWI convic- which twenty per-
tions did criminal to Healthcare and not indicate conduct causation any way young akin to sexual Rapp assault to Dr. sup- cent causation is not Therefore, boys. Boys Id. at 478. if the by factually sufficient ported evidence. volunteer, investigated Club had its Because we have discussed the evidence investigation would not have caused the jury’s finding proximate supporting the reasonably anticipate club to his subse- sufficient, cause and found the evidence we quent sexual assaults of the Id. boys. repeat that discussion need here. that Dr. Rapp, There is also evidence who In negli Healthcare’s history knew at Anahuae and at Jones’s gence was both foreseeable and the cause Jacinto, still recommended San his Rig- fact of Mrs. Underwood’s and Mrs. LaPorte, was at fault. Even admission to by’s damages. every Almost witness testi percentage if a different allocation could fied that it was foreseeable that Jones evidence, appellate supported by elderly could harm one of the female resi judgment court not substitute Anahuae, history dents. Jones’s at San jury. Humble Nat’l Bank v. that of the Hospital, Jacinto and LaPorte indicated he DCV, Inc., (Tex.App.- displayed sexually deviant behavior and denied). 1996, writ [14th Dist.] Houston posed elderly a threat disabled resi sufficient evidence that both Having found Further, negligence dents. Healthcare’s fault, Rapp Healthcare and Dr. were we bringing was a substantial factor in about jury’s interfering find no basis the harm to Mrs. Underwood Mrs. apportionment negligence. According- Rigby. argues simply that it ly, we overrule issue five. created condition that made the assault therefore, possible; the causal link is too issue, Healthcare contends it its sixth attenuated to cause in fact. show This is trial in the interests of is entitled to a new case, however, not a all in where forces justice. Appel- Texas Rule of fairness and original volved in the act had negligence states: late Procedure 43.3 *16 come to rest. Nor is this a such as judgment, a trial court’s reversing When Doe, in which the could not have defendant judgment that render the the court must propensity actor had it known the of the rendered, should have the trial court Here, investigated prior him. Jones’s con except when: duct was indicative of his future conduct (a) necessary for is farther a remand negli original and the act of Healthcare’s proceedings; or gence had not to rest the come before (b) a justice require re- the interests Considering assault on Mrs. Underwood. trial. mand for another most to light the evidence the favorable Tex.R.App. verdict, legally the is we find the evidence P. 43.3. negligence sufficient to show Healthcare’s to the have remanded Appellate courts in bringing
was a substantial factor about justice interest of when trial court the injury. considering After all the evi changed between applicable law has contrary support dence both in of and disposition the time of trial and cause, jury’s finding proximate we overruled, or appeal, precedent has been find the evidence is not so weak See, pleadings. party a to amend to allow finding clearly wrong manifestly is (Tex. 278, Doe, 290 e.g., In re 19 S.W.3d unjust. 593, Kerr, 2000); 603 Boyles v. (Tex.1993); 855 Twyman Twyman, v. further contends (Tex.1993); 619, Ltd. Westgate, 626 jury’s apportionment eighty percent S.W.2d
627 1995, passed Legislature (Tex.1992); In 448, care. State, v. S.W.2d recovery of such dam- prohibiting Gurecky, 501 S.W.2d statute Corp. L.M.B. v. (Tex.1973). “because ages we are from a defendant this case See exceptions. of another.” of those criminal act presented Tex. Civ. 41.005(a). sup- § No one found sufficient evidence & Rem.Code have We PRÁc. criminal negli- cause of action for committed port plaintiffs disputes that Jones remitted. damages as gence and actual act. sus- found that the harm have further
We and the jury charge Pointing caused proximately by plaintiff tained her award was Rigby asserts judgment, There- act of Morris Jones. by the criminal Healthcare, not the acts of for the criminal fore, damages are not recoverable punitive Her able counsel of another. criminal acts Practice 41.005 of the Civil under section aby us with statements provided have There are no remain- and Remedies Code. lobbyist sug the statute and sponsor of remand. Healthcare’s ing requiring issues not read the statute gesting they did issue is overruled. sixth (that is, acts criminal apply to concurrent trial court is modi- judgment of the by both the criminal acts there are when punitive dam- to delete assessment fied another). Such statements defendant modified, judgment ages. As history. legislative See constitute do not is affirmed. trial court Lastra, Corp. v. De La General Chemical can Nor BRISTER, C.J., and WAJSÍDA SCOTT rewriting the statute. they justify FOWLER, J., concurring. McKEE Kreipe, 29 Safety Public v. Dept. Texas Justice, BRISTER, Chief SCOTT (Tex.App.-Houston [14th denied). concurring. 2000, pet. Dist.] judgment, I concur the Court’s con- of this statute section The second First, I points. as to two separately write al- exceptions, one of which tains several judicially ad- disagree Virginia Rigby if defendant “the punitive lows harm from the acts mitted that all resulted criminally responsible as judicial and him alone. of Morris Jones another. See criminal act” of Tex. Civ. clear, deliberate, and must be admission 41.005(b)(2). In PRAC. & Rem.Code Regency Advantage Ltd. unequivocal. See al- words, expressly are punitive damages Inc., Idea-Watauga, Partnership Bingo But an ac- accomplice.1 against lowed *17 (Tex.1996). 275, Rigby 278 936 S.W.2d See of his own crime. complice guilty is petition in sixth amended admitted her Rigby’s interpre- § If 7.01. Tex. Pen.Code assault, also an that Jones committed correct, exception is com- this tation is law and stat- that various common alleged have superfluous accomplices pletely — utory by Healthcare Centers violations crime, concurrent their own committed Texas, him to do so. The Inc. allowed aby statute never be covered and would as- committed the allegation that Jones the crimi- sued for applying to defendants that unequivocal admission sault is not must construe another. We nal act of played part. no one else whole, provision giving each as a statute 311.021(2); Hel- effect. Nevertheless, I the Court agree with Tex. Code Gov’t Wilkins, v. 47 S.W.3d Co. ena Chemical Rigby from recov- prohibits that Texas law (Tex.2001). creating an ex- 486, By Health- damages from ering any punitive plice Jones's assault. argues was an accom- 1. No one exception upon for concurrent acts ac- commits deviant acts their loved press ones. complices, Legislature obviously did Rigby’s interpretation
not share that the Nevertheless, appeal in- Healthcare’s application statute had no to concurrent argument bystander cludes no that a cause criminal acts at all. in of action does not exist this situation. Thus, it has waived error. See Tex. Finally, a of caution accom note should R.App.P. 38.1. pany bystander the Court’s affirmation of Bystander Virginia Rigby. FOWLER, Justice, WANDA McKEE recovery species negligent is a infliction concurring. distress, generally of emotional an action join majority’s opinion I all Boyles recognized Texas. See v. punitive except for its discussion (Tex.1993) Kerr, 593, 855 S.W.2d 595-96 issue, I that concur in damages issues. On (holding anguish damages compen- mental the result. only in with a breach of sable connection majority opinion has set forth the law). duty imposed by It some other issues, so I will facts of the case and the malpractice available medical cases. do, however, I not revisit them. want Trevino, Authority Edinburg Hosp. v. I aspect one of the case that be- address agree I with fully explored by either of lieve was not malpractice the Court this is not a medical section of the parties. This is new propriety failing super as the code, and, practice and remedies civil nursing in a vise sexual deviant home is no case law exists majority expresses, knowledge laymen. within the common of the section to this applicability on the Home, Nursing See Golden Villa Inc. fact situation. Smith, (TexApp.- is, al- this case problem One n.r.e.) Houston writ ref d [14th Dist.] been, parties avoided ways has that (holding propriety failing supervise statutory issue discussing the main patient who wandered off from for its corporation is sued case: when a expert testimony). require home did not act a criminal alleged own criminal act but bystander But it at all is not clear responsible for the of a third is also recovery should be extended to a fact situ 41.00(a) of injuries upon, does section sued ation like this one. Code bar the Civil Practice and Remedies Bystander damages can be recovered always has exemplary damages? LaPorte family member who is located near the for Mor- simply Rigby suing said directly perceives scene of and an accident. elderly ris’s of her mother sexual assault Boyles, at 598. But as the use 41.005(a) and, therefore, bars ex- section implies, bystander of the word “accident” always has re- emplary damages. recovery has allowed Texas almost been suing, not for Morris’s sponded that she is exclusively in accident cases. It is assault, auto LaPorte’s commis- sexual but for *18 thing expect individual, to a driver to know that one see injury elderly of to an sion (Vernon running person may Supp. a cause severe § over 22.04 Tex. Pen.Code Ann. family standing by; 2002); it is crime separate shock to members that is a because 41.005(a) committed, nursing quite expect another to a home that section LaPorte admitting apply. right administrator to know that a Both are least does not —at Rigby is right to LaPorte is that may partly sexual deviant cause severe shock so. harm that resulted from family suing members who stand while he for the mother, on La- jury damages to based Rigby’s assault of assess Morris’s sexual act, act has that no Porte’s criminal that she is for Rigby right suing and is It can be viewed significance by itself. alleged injury commission of to LaPorte’s it failed only in the of what to context La- elderly an individual. neither Bub rape of a fellow resident prevent: Morris’s in Rigby explained any Porte nor detail Consequently, for of the home. why argument faulty.1 the other’s was any purpose purposes grapple That to with issue left us —for really acts are so intertwined two And, majority opinion what the —the ourselves. without the that one cannot be considered rightly think that concludes—I —is ease, jury’s award other. such a 41.005(a) I apply. does What want to do based, part, in on the had to be at least in in this concurrence is discuss more de- is criminal act of another. This what the tail the that reasons for conclusion and its statute bars. ramifications. counsel, According Rigby’s this means pro- paragraph first statute commits party a third a time following: vides the act, are joint criminal all tortfeasors auto- (a) arising In an action harm re- from matically exemplary dam- immune ... sulting from an assault ages. They paragraph have us read would act, criminal a court not award (a) may not provide that a court award exemplary damages against defen- a anyone exemplary damages against solely dant because the criminal act act of because the criminal another. another. Thus, if they want us to conclude Tex. Prac. Ann. Crv. Rem.Code 41.005 & (and corporation responsible partly was (Vernon 1997). paragraph broadly This is act) committed criminal and third written, appears to apply to this plaintiff partly responsible, case. However, punitive damages. could obtain First, from, clearly, this action arose (a) paragraph not contain this limita- does of, was brought because sexual Morris’s A con- tion. look at the four situations assault If Rigby’s mother. sexual (b) plain- tained in which a paragraph —for happened, assault had not there would against punitive damages tiff can obtain Or, have if been a suit. there had been clarify issue. corporation helps — suit, it Rigby’s would have to be because (b) Paragraph provides that the fol- injured mother way some other on situations, will lowing a defendant be liable account of LaPorte’s failure to act. para- exemplary damages spite for Second, (a)’s impossible it is to look against graph proscription broad ex- (1) case say employee that the assessed an emplary damages: when $50 (2) act; million damages against corporation LaPorte and commits the thought criminally never a second itself is gave corporation Morris’s when act; Yes, jury question responsible party2 criminal asked as a act. (a) person criminally responsible address issue in did her motion offense the conduct of committed rehearing but LaPorte has still never ad- another if: problem dressed the head-on. (1) acting culpability the kind of re- offense, quired causes or aids an for the he responsi- 2. The Penal Code defines criminal person to nonresponsible en- innocent or bility for the conduct of another the follow- gage prohibited in conduct the definition ing way: *19 offense; when the place criminal act occurs at a taneous “bad” act corporation. For (a qualifying as a place common nuisance example, if corporate the employer had not people habitually go prostitution, gam- employee, rape hired the the would not bling, firearms, to shoot engage orga- to occurred; have if corporate the landlord crime, sell, possess, nized or to manufac- put had latches on the windows of its substances); ture or use controlled apartments, the assault would not have when a intentionally landlord or knowingly occurred; if corporation oper- had not fails comply to with Property Code’s ated an illegal gambling operation, requirements provide to certain security murder would not have occurred. In these devices for tenants. situations —like here —the acts are so in- tertwined, reasons, impossible
For two it is I consider believe this subsec- one tion Rigby’s First, answers without the other and one claim. in read- could not have ing section, the whole we are to assume occurred without the other. legislature that the did not commit a vain If para- the situations enumerated in act—that it para- listed these situations in (b) graph para- otherwise fall within would (b) graph thought they because it were one; graph (a), legisla- would this if the so (a)’s by covered paragraph language, and apparently ture believed—as it did—that plaintiff wanted a to be able to obtain these covered para- situations were punitive damages in these situations. (a)’s graph exemplary damages, bar on so Auto., Co., Mentor Inc. v. Rum Leasing is this one. (Tex.2001) (holding a court should examine the entire statute to short, spite of the horrid events of meaning); Cayan determine Cayan, ignore plain we cannot lan- 165-66 (Tex.App.-Houston guage of the statute. That language denied) pet. [14th Dist.] (stating that corporation states that a is not liable for the court “lightly presume does not exemplary damages because of the crimi- act”). Legislation did a useless We Here, nal act of another. LaPorte was assume, then, can reasonably legisla- subjected damages part, exemplary if (b) ture listed in paragraph every situation primarily, not of the criminal because act thought which it a plaintiff should be reason, another. For that able—at potentially puni- least obtain —to are barred.3 Second, damages. tive a common theme- similar to this case—exists three of
these they situations: each involve a crimi- conjunction
nal act a third grossly negligent or intentional act
corporation, so that likely the criminal act
would not have occurred without the simul- (2) acting promote may very Legislature with intent to or assist It that the did well be offense, solicits, the commission of the he only not include this situation because it did directs, aids, encourages, attempts or to aid drafting think of it when it sec- offense; person the other commit But, apply legisla- what tion. we have to (3) having legal duty prevent commis- actually legislation, ture included in the acting sion of the offense and with intent to might what it have included if it had been commission, promote or assist its he fails to contemplate able to situation. prevent make a reasonable effort to com- mission of the offense. 7.02.
Tex. Pen.Code Ann.