                              NUMBER 13-08-00385-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


ELIDA LOPEZ OLIVER,                                                             Appellant,

                                             v.

LONG ISLAND OWNERS ASSOCIATION, INC.,                                            Appellee.


                    On appeal from the 357th District Court
                         of Cameron County, Texas.


                          MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Vela

       This is an appeal from a jury verdict in favor of appellee Long Island Owners

Association (the association) and against appellant Elida Lopez Oliver (Oliver). On appeal,

Oliver raises two issues. First, she urges that the jury’s finding that she was not an invitee

of Long Island was against the great weight and preponderance of the evidence or was

conclusively established as a matter of law in her favor. Second, Oliver urges that the trial
court abused its discretion in refusing to grant her challenges for cause to two

venirepersons who stated it would be difficult to award the damages she was seeking. We

affirm.

                                      I. BACKGROUND

          Oliver was a resident of Long Island, an island residential community in Cameron

County. She filed suit against the association urging that she was injured as she rode her

bicycle on Garcia Street toward the Long Island swing bridge that connects Long Island

with the Texas mainland. The bridge is the only means of access to Long Island, other

than by boat. According to Oliver, she was riding her bicycle toward the bridge when the

mechanical arm located south of the bridge was lowered onto her, knocking her to the

street and causing her serious injury. There were no eyewitnesses to the accident. Oliver

testified that she told Claudio Hernandez, the gate operator, what had happened.

Hernandez testified that Oliver told him that she had run into the gate with her bicycle.

There was conflicting testimony offered by both parties regarding Oliver’s medical

condition.     Because of the jury’s findings on the liability issues, that testimony is

unnecessary to the issues we address, so we will not recount it here. See TEX . R. APP. P.

47.1.

          A board of directors, selected by the association, is in charge of operating the

bridge, maintaining it, and paying expenses for the bridge. The association has owned the

bridge since 1989. The road and the bridge are considered private property. The bridge

is opened every hour on the hour to boat traffic and, at additional times, when requested

by the Coast Guard. Any member of the public may use the bridge. However, Long Island

residents pay a $32.00 monthly bridge fee which is used by the board as revenue to

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operate the bridge for those landowners. Margaret Hunnicutt, a board member in 2004

when this accident happened, testified that the monthly bridge fee “would be combined into

their condo fee. They may not even know it, but they do. I’m not sure.” She was called

immediately after the incident made the basis of the suit and suggested that Oliver go the

hospital by ambulance. Hunnicutt agreed that on the date in question Oliver had every

right to use the bridge and expect that it had been safely maintained. She further testified

that the bridge was properly maintained.

         After a lengthy trial, the jury returned a verdict in favor of the association. Question

number 1 asked the jury to decide if the bridge arm was coming down at the time it came

into contact with Elida Oliver. The jury answered “no” to that question, thereby rejecting

Oliver’s version of the events. The only other question the jury decided was question

number 4, which inquired:

               On the occasion in question, was Elida Oliver an invitee on that part
         of Long Island’s premises under consideration?

         An “invitee” is a person who is on the premises at the express or implied
         invitation of the possessor of the premises and who has entered thereon
         either as a member of the public for a purpose for which the premises are
         held open to the public or for a purpose connected with the business of the
         possessor that does or may result in their mutual economic benefit.

The jury answered “no “ to this question as well. Because all of the additional questions

were predicated upon affirmative answers to questions 1 and 4, the jury did not reach the

causation or damage questions. The trial court entered a take-nothing judgment in favor

of the association. Oliver filed a timely motion for new trial that was overruled by written

order.




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                               II. EVIDENTIARY STANDARD OF REVIEW

       Oliver argues by her first issue that she is entitled to a new trial because the jury’s

finding that she was not an invitee was either contrary to the weight of the evidence or

conclusively established in her favor. With respect to legal sufficiency, we must credit

favorable evidence if reasonable jurors could and disregard contrary evidence unless

reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005);

Villagomez v. Rockwood Specialties, Inc., 210 S.W.3d 720, 748 (Tex. App.–Corpus Christi

2006, pet. denied). We will not substitute our judgment for that of the fact finder if the

evidence falls within the zone of reasonable disagreement. Keller, 168 S.W.3d at 822.

With respect to factual sufficiency, we must first examine the record to determine if there

is some evidence to support the finding; if so, then we must determine whether the failure

to find is so contrary to the overwhelming weight of the evidence as to be clearly wrong or

manifestly unjust. Cain v. Bain,709 S.W.2d 175, 176 (Tex. 1986); Marrs & Smith P’ship v.

D. K. Boyd Oil & Gas Co., Inc., 223 S.W.3d 1, 14 (Tex. App.–El Paso 2005, pet. denied).

                                        III. ANALYSIS

A. Status as an Invitee

       The duty a landowner owes to someone injured on the landowner’s property

depends on the injured party's legal status as an invitee or a licensee. Motel 6 G.P., Inc.

v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996); Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156,

161 (Tex. App.–Waco 1995, no writ). A landowner owes an invitee the duty to use ordinary

care to protect the invitee from not only risks of which the owner is actually aware, but also

from risks of which the owner should be aware after reasonable inspection. Lopez, 929



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S.W.2d at 3. In other words, a landowner must use reasonable care to reduce or eliminate

unreasonably dangerous conditions of which he is aware, or reasonably should be, aware.

Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); State Dep't of

Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).

       On the other hand, a landowner owes a licensee a duty not to injure by willful,

wanton, or grossly negligent conduct and to protect the licensee from those dangers of

which the owner is actually aware. Payne, 838 S.W.2d at 237. Thus, a licensee must

establish that the landowner actually knew of the dangerous condition, whereas an invitee

need only establish that the landowner knew or should have known of the dangerous

condition. Id.

       An invitee usually is defined as someone who enters onto property with the owner's

knowledge and for the mutual benefit of both parties. See Rosas v. Buddies Food Store,

518 S.W.2d 534, 536 (Tex. 1975). An invitee has also been defined somewhat more

broadly as someone who enters another's property on business or for the benefit of the

landowner. See Cowart v. Meeks, 111 S.W.2d 1105, 1107 (Tex. 1938). If an individual

is on the land for his own convenience or on business for someone other than the owner,

then she is a licensee. Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 910 (Tex.

App.–Houston [14th Dist.] 2009, no pet.); Weaver v. KFC Mgmt. Inc., 750 S.W.2d 24, 26

(Tex. App.–Dallas1988, writ denied).

       There was evidence that Oliver was on a leisurely bicycle ride at the time this

accident occurred. There is nothing in the record to suggest that she entered the property

in question to benefit the association in any way. Because there was no evidence that she



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entered the property for a purpose connected with the business of the owner, that did or

may have resulted in their mutual economic benefit, the jury could have properly

determined, as a fact issue, that she was not an invitee. While there was evidence that,

as an association member, she paid monthly to use the bridge, there was ample evidence

that she was on the bridge for her own purposes and not to benefit the association in any

way.

       Regardless, we believe that the jury’s answer to question number one would bar

recovery irrespective of the way the jury answered question number 4. Oliver’s theory of

the case was that the arm of the swing bridge hit her on top of the head as it was coming

down. The jury was asked if the arm was coming down “at the time it came into contact

with Elida Oliver.” The jury obviously believed that the accident did not happen as Oliver

testified. So, even assuming that Oliver was an invitee, she would not be able to recover

because the jury did not agree that the arm of the bridge was moving when the accident

occurred. If the alleged defect that Oliver attempted to establish was that the bridge arm

came down too quickly or that the warnings were inadequate, any alleged defect would not

have caused the injury in question because the jury did not believe the accident happened

as Oliver testified. We overrule issue one.

B. Peremptory Challenges

       By her second issue, Oliver argues that the trial court abused its discretion by

refusing to grant her challenges for cause regarding two of the venirepersons. As a result,

Oliver claims she was forced to use her peremptory challenge on those individuals and

thus had to accept otherwise objectionable jurors.



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         A trial court’s refusal to strike a prospective juror for cause is reviewed under an

abuse of discretion standard. Cortez v. HCCI- San Antonio, Inc., 159 S.W.3d 87, 93 (Tex.

2005). To disqualify a potential juror, it must appear that the state of mind of the juror led

to the natural inference that he or she will not act with impartiality. Id. at 94. A person is

disqualified from serving on a jury if the person has a bias or prejudice in favor of or against

a party or claim, or if the person is unable or unwilling to follow the trial court's instructions.

See TEX . GOV'T CODE ANN . § 62.105(4) (Vernon 2005); TEX . R. CIV. P. 226a. Such bias,

prejudice, or inability to follow the court's instructions may not be discernible from a single

statement or response to a general question. Murff v. Pass, 249 S.W.3d 407, 411 (Tex.

2008).

         Statements of partiality may be the result of inappropriate leading questions,

confusion, misunderstanding or ignorance of the law, and do not necessarily establish

disqualification. Id.; Cortez, 159 S.W.3d at 92. When a venire person expresses bias or

confusion, the trial court has the discretion to stop the line of questioning to clarify that

person's response. Murff, 249 S.W.3d at 411. Because trial judges are present in the

courtroom and are in the best position to evaluate the sincerity and attitude of individual

panel members, they are given wide latitude in both conducting voir dire proceedings and

determining whether a panel member is impermissibly partial. Id. An appellate court must

consider the entire examination in reviewing whether a trial court abused its discretion in

deciding that a juror was disqualified. Id.

          Specifically, Oliver argued that prospective juror number 1, Ms. Street, and

prospective juror number 22, Mr. Piercy, were objectionable. During voir dire, counsel for



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Oliver asked the jury if there was anyone on the panel who couldn’t award ten million

dollars, “even if you prove it to me, even if there is an injury, I cannot award that much

money.” Twenty-four of the prospective jurors, including Street and Piercy, answered

affirmatively.

       On individual examination, Street stated that she felt ten million dollars was

extremely high and she thought a party would have to be “bedridden to get pretty much

that much.” She further told the court that if “the preponderance was there, I could award,

but I don’t know about that much.” Street agreed, however, if the medical bills were in the

millions, she would be able to follow the law and award those damages. She said that she

would follow the law as long as the evidence supported the amounts claimed. Finally, the

court informed Street that she might not actually see medical bills of ten million dollars, but

the severity of the damages are the premise for the damages that they were seeking as

being reasonable damages. Street agreed that she could award damages under those

circumstances.

       When Piercy was individually questioned, he ultimately confirmed that he would

follow the law and award damages according to the evidence. Piercy initially said it would

be improbable for him to make such award. The trial court asked him whether, if the

evidence supported a ten-million-dollar amount, he would be able to award it.              He

responded, “If it supported it, yes, and it would have to support it in my mind.”

       The trial court had wide latitude in regard to these challenges. See id. What may

have seemed like bias regarding initial statements by these two individuals was clarified

by their individual examination to the trial court’s satisfaction. A juror’s willingness to try

to make its decision based upon the evidence and the law is “all we can ask of any juror.”

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Cortez, 159 S.W.3d at 93. We find no abuse of discretion in the trial court’s ruling. We

overrule issue two.

                                  IV. CONCLUSION

      We affirm the judgment of the trial court.




                                                   ROSE VELA
                                                   Justice


Memorandum Opinion delivered and
filed this 11th day of June, 2009.




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