Affirmed and Memorandum Opinion filed April 2, 2013.




                                      In The


                    Fourteenth Court of Appeals

                              NO. 14-12-00029-CV



                        DARLENE SPARKS, Appellant

                                        V.

                 EXXON MOBIL CORPORATION, Appellee


                    On Appeal from the 240th District Court
                            Fort Bend County, Texas
                     Trial Court Cause No. 06-DCV-151073


                       MEMORANDUM OPINION

      Appellant, Darlene Sparks, appeals a take-nothing judgment pursuant to a
jury verdict in her slip-and-fall personal injury suit against appellee, Exxon Mobil
Corporation (“Exxon”). Sparks contends (1) the trial court erred by submitting a
jury question that included an inquiry regarding Sparks’s alleged negligence, (2)
the evidence is legally and factually insufficient to support the jury’s finding that
Sparks was negligent and Exxon was not liable for her injury, and (3) the trial
court erred by admitting certain evidence. We affirm.

                                 I. BACKGROUND

      Sparks and her sister, Linda Dyson, collectively presented the following
testimony regarding the incident at issue. On August 21, 2004, Sparks drove her
Yukon Sport Utility Vehicle up to a gas pump at an Exxon station in Sugar Land,
Texas. Dyson was a passenger in the vehicle. Sparks slipped on a “greasy”
substance when she stepped from the vehicle onto the ground. Sparks fell and
struck her elbow and lower back on the elevated pavement where the gas pump
was located. Dyson exited the vehicle when she heard Sparks scream. Dyson also
slipped on the substance, which was on the ground in such a wide swath that it
extended to the passenger’s side of the vehicle, but Dyson maintained her footing
and went to assist Sparks. There were no warning signs or cones around the
substance when they drove up to the pump. They did not notice the substance
before exiting the vehicle because they did not look at the ground. After the fall,
they went inside the store and asked to speak with the manager. The clerk led
them to an office where they spoke with a man whom they characterized as the
station manager. Sparks did not recall the details of the conversation; however,
Dyson testified the manager seemed unconcerned about Sparks’s injury and stated
that he knew “there was something out there” but he had not had time to clean the
substance.

      In contrast, Exxon presented the following testimony of Benjamin Villareal,
station manager at the time of the incident. Villareal had been employed by Exxon

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for fourteen years at that time and had managed several stations, although he
subsequently retired. He had received an award from Exxon for excellence in
managing one of his former stations, including maintaining cleanliness.          The
station at issue did not generally have problems with cars leaking oil because it
was located in an area where customers drove “nice” cars.          Villareal’s main
priority was safety: he began each workday by conducting a complete exterior
inspection, including ensuring the grounds were clean and there were no safety
hazards; during the day, he and employees regularly performed safety checks near
the pumps; and he and employees observed the pump areas even when they went
outside for other purposes. If Villareal learned of a spill by the pumps, he would
immediately attend to it by placing absorbent material on the ground, roping off
the area, or placing warning signs. He had never ignored a spill that he personally
observed or was reported to him. Villareal did not remember the incident because
it occurred seven years before trial. However, he maintained that he was present at
the time of the incident because it occurred during his regularly-scheduled shift, he
rarely missed work, and he completed and signed the Exxon incident report dated
the same day, which was presented at trial. He would not have made the remarks
described by Dyson because such a statement would have incorrectly reflected a
shirking of his duties.

      In rebuttal, both Sparks and Dyson testified that Villareal was not the
manager with whom they interacted. Rather, they spoke with a “Middle Eastern,”
not Hispanic, man, who had a different physical appearance than Villareal.
However, Villareal testified that Mohammed Yazjapina was not the station
manager, although, as territory manager, he was Villareal’s superior at the time of
the incident.


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       In any event, Sparks claimed that she injured her lower back in the fall. She
received various forms of treatment, including pain medications, steroid injections,
chiropractic treatments, and physical therapy. According to Sparks, she was still
experiencing back pain at the time of trial, which she attributed entirely to the fall
at the station.

       Sparks sued Exxon alleging its negligence caused Sparks’s injury.1 Among
other defenses, Exxon pleaded that Sparks was contributorily negligent. In the
charge, the jury was asked, “Did the negligence, if any, of those named below
proximately cause the injury in question?” The jury answered “No” for Exxon and
“Yes” for Sparks. Therefore, the jury did not answer the remaining questions
regarding percentages of responsibility and damages. The trial court signed a final
judgment ordering that Sparks take nothing on her claims. Sparks timely filed a
motion for new trial and a motion for judgment notwithstanding the verdict, which
were denied by written order.

                                     II. ANALYSIS

           On appeal, Sparks challenges the negligence question submitted in the
charge and the jury’s findings. Sparks also attacks the trial court’s admission of
testimony regarding other injuries or conditions experienced by Sparks.

A.     Submission of Sparks’s Alleged Negligence

       In her first issue, Sparks contends the trial court erred by submitting an
inquiry in the jury charge regarding Sparks’s alleged negligence because there was
no evidence to support such a finding. We need not decide whether any evidence



       1
        Sparks also sued Sugar Creek Exxon, Inc., but Exxon Mobil Corporation was the only
defendant named in the jury charge.
                                            4
supported submission of Spark’s alleged negligence because any error was
harmless.

         Submission of an improper jury question can be harmless error if the jury’s
answers to other questions render the improper question immaterial.         City of
Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995); Rebel Drilling Co. v.
Nabors Drilling USA, Inc., No. 14-02-00841-CV, 2004 WL 2058260, at *8 (Tex.
App.—Houston [14th Dist.] Sept. 16, 2004, no pet.) (mem. op.). A jury question is
considered immaterial when its answer can be found elsewhere in the verdict or
when its answer cannot alter the effect of the verdict. Alvarado, 897 S.W.2d at
752; Rebel Drilling Co., 2004 WL 2058260, at *8. Submission of an immaterial
issue is harmless error unless the submission confused or misled the jury.
Alvarado, 897 S.W.2d at 752; Rebel Drilling Co., 2004 WL 2058260, at *8. When
determining whether a particular question could have confused or misled the jury,
we “consider its probable effect on the minds of the jury in the light of the charge
as a whole.” Alvarado, 897 S.W.2d at 752; Rebel Drilling Co., 2004 WL 2058260,
at *8.

         Submission of Sparks’s alleged negligence was rendered immaterial by the
jury’s finding of no liability on the part of Exxon because any finding that Sparks
was negligent could not alter the effect of the verdict. See Alvarado, 897 S.W.2d
at 752–53 (holding submission of question on plaintiff’s negligence was rendered
immaterial by jury’s finding of no liability on defendant’s part because finding of
plaintiff’s negligence could not alter effect of the verdict); Rebel Drilling Co.,
2004 WL 2058260, at *8 (same, with respect to error in submitting third party in
negligence question). Further, submission of Sparks’s alleged negligence could
not have misled or confused the jury. Negligence was defined separately for each

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party, the jury was instructed that there could be more than one proximate cause of
an occurrence, and the jury was instructed to allocate percentages of responsibility
only if it found both parties were negligent. Therefore, the jury was not misled to
believe it had to choose between Sparks and Exxon in assessing responsibility for
Sparks’s alleged injury; thus, inclusion of Sparks in the question could not have
caused the jury to assess no liability against Exxon. See Thota v. Young, 366
S.W.3d 678, 694 (Tex. 2012) (holding any error in submitting contributory
negligence of plaintiff, which was rendered immaterial once jury found no
negligence for defendant, did not mislead or confuse jury because charge made
clear that there could be more than one proximate cause and that jury had option to
assess negligence against one or both or neither party); Rebel Drilling Co., 2004
WL 2058260, at *8 (same, with respect to error in submitting negligence of third
party). Accordingly, we overrule Sparks’s first issue.

B.    Jury’s Finding of Sparks’s Negligence

      In a portion of her second issue, Sparks contends the evidence is legally and
factually insufficient to support the jury’s finding that she was negligent.      We
employ a similar analysis used in our disposition of Sparks’s first issue.
Specifically, we need not consider whether sufficient evidence supported the
finding Sparks was negligent because, again, such finding was rendered immaterial
once the jury assessed no liability on the part of Exxon. We overrule this portion
of Sparks’s second issue.

C.    Jury’s Finding of No Liability on the Part of Exxon

      In another portion of her second issue and in her fifth issue, Sparks contends
the evidence is legally and factually insufficient to support the jury’s finding of no
liability on the part of Exxon.

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      When examining a legal-sufficiency challenge, we review the evidence in
the light most favorable to the challenged finding and indulge every reasonable
inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005). We credit favorable evidence if a reasonable fact finder could and
disregard contrary evidence unless a reasonable fact finder could not. Id. at 827.
The evidence is legally sufficient if it would enable a reasonable and fair-minded
person to reach the verdict under review. Id. When, as in the present case, a party
attacks legal sufficiency relative to an adverse finding on which she had the burden
of proof, she must demonstrate that the evidence conclusively establishes all vital
facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001). The fact finder is the sole judge of witness credibility and the weight to
give their testimony. See City of Keller, 168 S.W.3d at 819.
      In a factual-sufficiency review, we consider and weigh all the evidence, both
supporting and contradicting the finding. See Mar. Overseas Corp. v. Ellis, 971
S.W.2d 402, 406–07 (Tex. 1998). A party attacking factual sufficiency relative to
an adverse finding on which she had the burden of proof must demonstrate that the
finding is against the great weight and preponderance of the evidence. Francis, 46
S.W.3d at 242.      We set aside the finding only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v.
Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We may not substitute our
own judgment for that of the trier of fact or pass upon the credibility of the
witnesses. See Ellis, 971 S.W.2d at 407. The amount of evidence necessary to
affirm a judgment is far less than that necessary to reverse a judgment. GTE
Mobilnet of S. Tex. L.P. v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—Houston
[14th Dist.] 2001, pet. denied).


                                         7
        Relative to Exxon’s alleged negligence, the jury was instructed, in pertinent
part,

              With respect to the condition of the premises, [Exxon] was
        negligent if—
              1.    the condition posed an unreasonable risk of harm, and
              2.    [Exxon] knew or reasonably should have known of the
                    danger, and
              3.    [Exxon] failed to exercise ordinary care to protect
                    [Sparks] from the danger, by both failing to adequately
                    warn [Sparks] of the condition and failing to make that
                    condition reasonably safe.
We conclude the evidence is legally and factually sufficient to support a finding
that, at least, the following element was not satisfied: Exxon “knew or reasonably
should have known of the danger . . . .”

        Sparks relies solely on Dyson’s testimony regarding the manager’s alleged
comment after the incident—that he knew the substance was on the ground but he
had not cleaned it. However, as sole judge of witness credibility and the weight to
assign the evidence, the jury was free to believe that Villareal was the manager
with whom Sparks and Dyson interacted and Villareal did not make any such
comment. Moreover, based on Villareal’s description of regular safety checks
performed on the premises and indication that leaking oil was atypical at the
station, the jury could have rationally concluded that the substance, if any, had not
been on the ground for a sufficient length of time that Exxon reasonably should
have known of its presence.

        In summary, Sparks did not conclusively establish Exxon “knew or
reasonably should have known of the danger” and the jury’s finding is not so
contrary to the overwhelming weight of the evidence as to be clearly wrong and

                                           8
unjust. Accordingly, we overrule this portion of Sparks’s second issue and her
fifth issue.

D.     Admission of Evidence
       In her third and fourth issues, Sparks contends the trial court erred by
admitting evidence regarding certain other injuries or medical conditions
experienced by Sparks. We review a trial court’s admission of evidence under the
abuse-of-discretion standard. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A
trial court abuses its discretion if it acts without reference to any guiding rules or
principles or its decision is arbitrary or unreasonable. See Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
       To reverse a judgment based on an error in admitting or excluding evidence,
a party must show that the error probably resulted in an improper judgment. Tex.
R. App. P. 44.1(a)(1); Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220
(Tex. 2001). In making this determination, we must review the entire record.
Insterstate Northborough P’ship, 665 S.W.3d at 220. Typically, a successful
challenge to a trial court’s evidentiary rulings requires the complaining party to
demonstrate that the judgment turns on the particular evidence excluded or
admitted. Id. “[T]he exclusion or admission is likely harmless if the evidence was
cumulative, or the rest of the evidence was so one-sided that the error likely made
no difference in the judgment.” State v. Cent. Expressway Sign Assocs., 302
S.W.3d 866, 870 (Tex. 2009). The exclusion or admission is likely harmful if the
evidence is crucial to a key issue. Id.
       After voir dire, the trial court heard arguments outside the jury’s presence
regarding whether Exxon would be permitted to mention the other incidents at
issue during its opening statement. The trial court permitted Exxon to mention any
incidents reflecting a complaint or diagnosis of back pain or whole body pain
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(which would encompass back pain). However, the trial court precluded Exxon
from suggesting that other incidents demonstrated Sparks was “accident prone” or
referring to litigation resulting from these incidents. During cross-examination of
Sparks, Exxon elicited testimony either acknowledging the following incidents or,
at least, that a record reflected the incident; however, in some instances, Sparks
attempted to offer an explanation that would not conflict with the claim that her
back pain was caused by the fall at Exxon:
         1990: She sustained soft tissue back injuries in two different car
         accidents, in which she was rear-ended, and she still had some pain at
         least two years later.
         1994: She fell at a Wendy’s restaurant; her primary injury was a
         shoulder fracture, but she also visited a chiropractor about six weeks later
         for lower back pain.
         2002: She had an MRI when experiencing gastro problems so that the
         doctor could rule out back issues, and the result was “Mild lower lumbar
         and lumbosacral spondylosis.”
         December 2003: She consulted a doctor for neck pain and reported a
         family history of neck and back problems. At trial, she acknowledged
         records reflecting she was having lower back pain but claimed the pain
         radiated to her back from a “female” issue.

         August 21, 2004 – Fall at Exxon

         December 2004: She complained to a doctor about “chronic left-sided
         lower back and groin pain which she relates to falls in August, 2004 and
         October, 2004, although she’s been experiencing similar pain since a
         total abdominal hysterectomy performed, approximately two years ago.”
         At trial, Sparks claimed she could not remember the incident in October
         2004 and attributed the back pain entirely to the Exxon fall despite the
         doctor’s report.
         March 2005: A chiropractor noted that Sparks “fell again two weeks
         ago, flared it up.” At trial, Sparks claimed she could not remember this
         specific fall.

                                         10
          2006: She fell “pretty hard” at J.C. Penney’s and fractured the tip of her
          “femur condyle.” At trial, Sparks claimed she did not injure her back in
          this fall but acknowledged she was sore and bruised over her “entire
          body,” which generally would encompass her back.

      After the close of testimony, the trial court admitted some or all of the
medical records referenced above, as well as medical records concerning other
unrelated incidents, such as neck and ankle injuries. On appeal, Sparks primarily
references and challenges admission of the above-cited testimony, but she also
generally asserts, “In fact the Trial Court allowed the admission of all of Ms.
Sparks medical record for the last two decades. Based on the foregoing standard
this admission of this evidence constituted harmful error.”

      Sparks contends that the evidence was irrelevant and any probative value
was substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury. Evidence which is not relevant is inadmissible.
Tex. R. Evid. 402. Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”          Id. 401.
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury . . . .” Id. 403.
      Assuming, without deciding, that Sparks preserved error on her complaints,
we conduct a separate analysis for admission of (1) the incidents involving back
pain during the four-year period encompassing the Exxon fall (2002-2006), (2) the
1990 and 1994 incidents involving back pain, and (3) conditions unrelated to back
pain reflected in the medical records.


      The 2002-2006 incidents
                                           11
        Sparks sought damages in the present suit for ongoing lower back pain
which she claimed was caused wholly by the Exxon fall. Therefore, a fact issue
was presented on whether Exxon proximately caused that condition, in whole or
part, and the amount of damages, if any, to be assessed against Exxon. Even
Sparks’s medical records relative to the Exxon fall cast doubt on whether her back
pain was attributable to the fall. At trial, Sparks acknowledged that records from
her emergency-room visit immediately after the fall reflect that she reported pain
in her left shoulder, left elbow, and left hip but there was no mention of lower back
pain.
        Therefore, the trial court acted within its discretion by determining that the
other incidents involving lower back pain which occurred after the Exxon fall were
relevant to show that some or all of Sparks’s back pain was not attributable to the
fall; as shown in the above list, during the two-year period after the Exxon fall,
Sparks reported lower back pain due to two other falls (in October 2004 and March
2005), general soreness all over her body (which would include her back) due to an
additional fall (in 2006), and lingering lower back pain due to a hysterectomy
performed approximately a year and a half before the Exxon fall.
        Similarly, the trial court acted within its discretion by determining the
incidents in 2002 and 2003 were relevant to show that Sparks was already
experiencing lower back pain within about a two-year period before the Exxon fall.
The relevance was enhanced by Sparks’s report to a doctor after the Exxon fall that
she was indeed experiencing back pain due to a hysterectomy before the fall.
Moreover, these incidents were relevant to Sparks’s overall credibility on all
disputed fact issues because Sparks made claims at trial that were inconsistent with
the evidence at issue.


                                          12
      With respect to Sparks’s Rule 403 contention, she argues that, in light of the
“highly charged political issue” of tort reform, evidence of the other incidents was
intended to make Sparks “look like a repeated litigant with the hopes of hitting the
lottery.” However, consistent with the trial court’s instruction, Exxon did not elicit
testimony that any of the other incidents resulted in litigation and focused instead
on the actual injury or condition. To the extent the jury may have surmised that
any other incidents resulted in litigation, the trial court acted within its discretion
by determining that any negative connotation did not substantially outweigh the
probative value of the incidents during the four-year period encompassing the
Exxon fall.
      The 1990 and 1994 incidents
      We acknowledge that the 1990 and 1994 incidents were somewhat remote in
time to the Exxon fall. Additionally, there was no indication that the 1990 incident
involved lower back pain in particular. Even if the trial court abused its discretion
by admitting testimony regarding the 1990 and 1994 incidents, any error was
harmless. In light of the properly admitted evidence regarding the 2002-2006
incidents, from which the jury could have directly questioned Sparks’s credibility
and whether Exxon caused her back injury, the judgment did not turn on the
evidence regarding the 1990 and 1994 incidents.

      Other medical conditions

      Finally, we agree that records reflecting medical conditions, unrelated to the
back pain, were irrelevant. However, any error in admitting such records was also
harmless because (1) the jury did not necessarily draw negative connotations
simply because Sparks experienced other medical conditions which any person
might experience during his or her lifetime, (2) Exxon did not mention these other
conditions during its opening statement, cross-examination of Sparks, or closing
                                          13
argument, much less suggest to the jury that they negated her cause of action, and
(3) again, in light of the properly admitted evidence regarding the 2002-2006
incidents, the judgment did not turn on records regarding unrelated conditions.
Accordingly, we overrule Sparks’s third and fourth issues.

      We affirm the trial court’s judgment.



                                             /s/    Margaret Garner Mirabal
                                                    Senior Justice

Panel consists of Justices Boyce, McCally, and Mirabal.2




      2
          Senior Justice Margaret Garner Mirabal sitting by assignment.
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