Opinion filed January 29, 2010




                                             In The


   Eleventh Court of Appeals
                                          ___________

                                    No. 11-08-00014-CV
                                        __________

               CHRISTUS HEALTH SOUTHEAST TEXAS D/B/A
               CHRISTUS ST. ELIZABETH HOSPITAL, Appellant

                                                V.

                 FLO WILSON AND JAMES WILSON, Appellees


                            On Appeal from the 60th District Court

                                     Jefferson County, Texas

                                 Trial Court Cause No. B-175,570


                                          OPINION

        Flo and James Wilson sued Christus Health Southeast Texas d/b/a Christus St. Elizabeth
Hospital for injuries Flo sustained when she slipped and fell in a hospital parking garage. The jury
found that St. Elizabeth and Flo Wilson were both negligent. The jury allocated 50% of the
negligence to St. Elizabeth, 30% of the negligence to Flo, and the remaining 20% to a settling
defendant. The jury also found that Flo sustained damages of $795,000. The trial court reduced this
award to reflect Flo’s negligence and St. Elizabeth’s settlement credit, and it entered judgment
accordingly. We affirm.
                                            I. Background
         Christus Health operated St. Elizabeth Hospital. In 2002, St. Elizabeth built a parking
garage that was known as the Calder or West garage. Allco served as the building contractor. The
garage had five levels and four stairwells. There was a landing at the stairwell entrance on each
level. Visitors walking from their cars to the stairs stepped up onto the landing, and visitors walking
from the stairs to their cars stepped off it. The plans for the garage called for the steps to be painted
with a six-inch yellow stripe on the top and side; however, Allco failed to paint the steps, and
St. Elizabeth failed to notice it.
        In 2005, Flo went to St. Elizabeth’s to visit her sister-in-law. She parked on the second level
of the garage and took the elevator to the first floor. After her visit, Flo returned to the garage. The
elevator was out of service, and she took the stairs to the second level. After exiting the staircase,
Flo failed to see the landing step, and she fell and injured herself.
                                               II. Issues
        St. Elizabeth challenges the judgment with four issues, contending that the evidence is legally
or factually insufficient to support the jury’s negligence finding, that the trial court erred by not
including a settling tortfeasor in the negligence question, and that the trial court also erred by
permitting evidence of a subsequent remedial measure.
                                            III. Discussion
        A. Premises Liability.
        Property owners owe a duty to their invitees to exercise reasonable care to protect them from
dangerous conditions on the premises that are known or discoverable by the owner. Wal-Mart
Stores, Inc. v. Surratt, 102 S.W.3d 437, 441 (Tex. App.—Eastland 2003, pet. denied). This duty
does not make the owner an insurer of the invitee’s safety. Wal-Mart Stores, Inc. v. Gonzalez, 968
S.W.2d 934, 936 (Tex. 1998). Instead, the invitee must establish that the owner knew or should have
known of a dangerous condition on the premises that presented an unreasonable risk of harm and that
this condition proximately caused the invitee’s injury. Seideneck v. Cal Bayreuther Assocs., 451
S.W.2d 752, 754 (Tex. 1970).


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        St. Elizabeth argues that the evidence is legally insufficient, contending that there was no
evidence that it had knowledge of a condition posing an unreasonable risk of harm, that there was
no evidence that a condition imposing an unreasonable risk of harm existed, and that there was no
evidence its actions were the proximate cause of Flo’s injury.
                1. Standard of Review.
        In considering a legal sufficiency challenge, we review all the evidence in the light most
favorable to the prevailing party and indulge every inference in its favor. City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex. 2005). We must credit any favorable evidence if a reasonable factfinder
could and disregard any contrary evidence unless a reasonable factfinder could not. Id. at 821-22,
827. We may sustain a legal sufficiency challenge only when (1) the record discloses a complete
absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving
weight to the only evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital
fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a
vital fact. Id. at 810.
        In reviewing a factual sufficiency challenge, we consider all of the evidence and uphold the
finding unless the evidence is too weak to support it or the finding is so against the overwhelming
weight of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635
(Tex. 1986). Appropriate deference must be given to the jury’s determination, especially concerning
its judgment on the weight and credibility of witness testimony because it is the sole judge of the
credibility of the witnesses and the weight to be given their testimony. Nat’l Freight, Inc. v. Snyder,
191 S.W.3d 416, 425 (Tex. App.—Eastland 2006, no pet.).
                2. Knew or Should Have Known.
        St. Elizabeth does not dispute that it knew, or at least should have known, that the curb was
unpainted. James Pearson, St. Elizabeth’s director of plant services, testified that the plans for the
garage required that the area where Flo fell be painted but that it was not. He agreed that he should
have noticed this. Instead, St. Elizabeth contends that it had no notice that an unpainted step
constituted a dangerous condition, and it points to testimony that, prior to Flo’s fall, there were no
reported incidents in the parking garage’s stairwells. The Wilsons contend that the garage’s
blueprints and evidence of other falls in the garage constituted notice.


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        The jury heard from John McGinty, an architect retained by the Wilsons as an expert but
called as a witness by St. Elizabeth, to establish that Allco breached the construction contract by not
painting the curb. After St. Elizabeth completed its examination, McGinty testified in response to
the Wilsons’ questions that “there had been a prior accident at this location, or in the garage, at a
similar location.” Pearson also testified that he was aware of people falling off unpainted curbs in
the garage prior to Flo’s injury. Pearson testified that curbs are painted to highlight elevation
changes. The area where Flo fell was painted after her fall, and to Pearson’s knowledge, no one has
fallen since.
        St. Elizabeth contends that this testimony is insufficient to prove notice because Pearson was
not asked to describe the curbs’ heights, their location, or the circumstances of the prior incidents.
St. Elizabeth directs us to the supreme court’s decision in Nissan Motor Co. Ltd. v. Armstrong, 145
S.W.3d 131, 143 (Tex. 2004), for the proposition that, without this evidence, Pearson’s testimony
is no evidence. Armstrong was a products liability action involving allegations of a stuck throttle
in a 300ZX. The claimant offered the testimony of four individuals who claimed that they had
experienced unintended acceleration events in their 300ZXs. Id. The court noted that the witnesses
could not identify the defect that caused their unintended acceleration; that one had been sanctioned
for filing a frivolous suit; and that, in two incidents, the cars had been examined by the individual’s
expert or by an independent governmental agency and no defect identified. Id. The court found that,
because none of the witnesses could verify a defect as the cause of their unintended acceleration, it
was error to allow their testimony. Id.
        We agree that merely because other people had fallen in the garage is no evidence that the
hospital was on notice that unpainted curbs constituted an unreasonably dangerous condition.
However, we disagree that Armstrong stands for the proposition that the Wilsons failed to produce
any evidence of notice. In a no-evidence review, we must view the evidence in the light most
favorable to the Wilsons. City of Keller, 168 S.W.3d at 822. The Wilsons contended that the
unpainted curb was unreasonably dangerous because Flo had inadequate notice of an elevation
change. The fact that others had also fallen off unpainted curbs in the garage is some evidence
people were not noticing the elevation change. The jury, therefore, had legally sufficient evidence
with which to conclude that the hospital had notice of a potentially dangerous condition.


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                   3. Unreasonably Dangerous Condition.
         St. Elizabeth next argues that an unpainted curb cannot constitute an unreasonably dangerous
condition as a matter of law, pointing to recent supreme court decisions such as Brinson Ford, Inc. v.
Alger, 228 S.W.3d 161 (Tex. 2007).                     The Wilsons respond that whether something is an
unreasonably dangerous condition is inherently a fact question.
         The supreme court defines an unreasonably dangerous condition as “one in which there is
a sufficient probability of a harmful event occurring that a reasonably prudent person would have
foreseen it or some similar event as likely to happen.” Seideneck, 451 S.W.2d at 754. This
definition precludes a definitive, objective test. Id. Consequently, the Wilsons are correct to the
extent that whether a condition is unreasonably dangerous is ordinarily a fact question. It would be
a mistake, however, to assume that this makes any fact finding preclusive.
         The supreme court has found conditions were not unreasonably dangerous as a matter of law.
For example, in Seideneck, the court held that a showroom rug was not unreasonably dangerous
relying upon evidence that no one had previously tripped on it and upon the lack of evidence that the
rug was defective or unusual. Id. at 754-55. In Brinson, the court held that a pedestrian ramp was
not an unreasonably dangerous condition as a matter of law. The court noted that the ramp met
applicable safety standards; that it “was further outlined in yellow stripping that the dealership added,
which is a common method used to indicate a change in elevation”; that the highest unrailed portion
was lower than an average step; and that no one had been injured on the ramp in over ten years.
Brinson, 228 S.W.3d at 163.
         There is no dispute that the hospital’s parking garage complied with the applicable building
codes, even though the curb was unpainted, and St. Elizabeth correctly notes that the mere fact that
something can be made safer is insufficient to make a condition unreasonably dangerous. See
Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex. 2006) (a condition is not
unreasonably dangerous simply because it is not foolproof).1 In Taylor, a piece of ice on the floor
was not an unreasonably dangerous condition because the store had no knowledge of its presence.



   1
     Similarly, see Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (because motel had no knowledge of a dangerous
condition, any premises liability claim predicated upon negligent maintenance, a failure to warn, or absence of safety devices is
barred).

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Id. at 409. The court held that this lack of notice precluded any duty to take preventive measures
such as placing additional mats on the floor. But that was not the case here. St. Elizabeth did have
notice that people had fallen off unpainted curbs in the garage. Furthermore, McGinty testified that
the curb should have been painted because there were two similar materials in a path of traffic and,
therefore, people needed a warning that there was an elevation change. These factors distinguish the
present case from both Seideneck and Brinson. The jury did, therefore, have legally sufficient
evidence with which to conclude that the unpainted curb was an unreasonably dangerous condition.
               4. Proximate Cause.
       Proximate cause consists of two factors: cause-in-fact and foreseeability. Travis v. City of
Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). The test for cause-in-fact is whether the negligent act or
omission was a substantial factor in bringing about the injury and without which the injury would
not have occurred. Id. Cause-in-fact must be proved by evidence of probative force and not by mere
conjecture, guess, or speculation. Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996). The
evidence must be sufficient for the jury to determine within a reasonable probability that the
plaintiff’s injury would not have occurred without the defendant’s negligence. Lenger v. Physician’s
Gen. Hosp., Inc, 455 S.W.2d 703, 706 (Tex. 1970). Cause-in-fact is established when the act or
omission was a substantial factor in bringing out the injuries, and without it, the harm would not
have occurred. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). If the defendant’s
actions merely furnished a condition that made the injuries possible, there can be no cause-in-fact.
Id.
       St. Elizabeth contends that there was no evidence that the failure to paint the curb was the
proximate cause of Flo’s injury because the Wilsons’ testimony is speculative. St. Elizabeth
contends that the Wilsons were required to produce evidence that paint attracts the attention of
someone such as Flo. St. Elizabeth argued at trial that Flo was contributorily negligent, and the jury
attributed 30% of the responsibility to her. On appeal, St. Elizabeth notes that people fall for a
number of reasons, many of which are unrelated to visibility issues, and suggests that the Wilsons
had the obligation to exclude these or to otherwise establish that a painted curb would have
prevented her fall.




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        The Wilsons direct us to Flo’s testimony that she would have seen a yellow stripe and that
this would have prevented her fall. They also highlight Rogers Jones’s testimony. He was a Baptist
pastor who went to St. Elizabeth’s frequently and was familiar with the parking garage. Pastor Jones
testified that there was a platform coming out of the stairwell, that there was an elevation change
between the platform and the floor, and that there was nothing to highlight this change in elevation.
He testified that the curb could be missed, and he stated that painting it would have helped people
see the step.
        St. Elizabeth is correct that there was no definitive, scientific study of the impact of a painted
step and, in fact, that there was evidence that several people had fallen on or off painted curbs.
However, the jury did have evidence that painting the curb would have made the step more visible.
In fact, the supreme court has noted that this is the common way to alert people to elevation changes.
See Brinson, 228 S.W.3d at 163. The jury also had Flo’s testimony that a painted curb would have
prevented her fall. This is some evidence that Flo fell because she did not see the change in
elevation; that a painted curb would have alerted her to this change; and, therefore, that a painted
curb would have prevented her fall. Issue One is overruled.
                5. Factual Sufficiency.
        In a factual sufficiency review we consider all of the evidence. Pool, 715 S.W.2d at 635.
St. Elizabeth distinguishes the other falls in the garage, contending that they were so dissimilar that
they do not constitute notice that the unpainted curb was a dangerous condition. Jack Patrick Briggs
is responsible for risk management, safety, and security at the hospital. He testified that the hospital
had received reports of three other falls in the garage. One occurred when a visitor fell after exiting
her car, one occurred when a visitor fell off a curb after exiting the elevator, and the third involved
a visitor in a wheelchair tipping over on the ground floor handicap ramp. St. Elizabeth argues that
the elevator incident is no notice because the visitor did not complain of visibility. However, Briggs
testified that the visitor “came out of the elevator at the Calder garage and didn’t see the curb. She
fell off of the curb and fell on her right knee.” Thus, even St. Elizabeth’s evidence established one
prior fall off an unpainted curb. Combined with Pearson’s and McGinty’s testimony referencing
other falls off curbs and Pearson’s testimony that he should have noticed that the curbs had not been




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painted as required, the jury had factually sufficient evidence that the hospital had notice of a
potential premises defect.
       The jury also had sufficient evidence with which to conclude that this was, in fact, an
unreasonably dangerous condition. St. Elizabeth correctly notes that the garage met the applicable
code, and there was evidence that Flo was negligent for not paying sufficient attention – particularly
since she had successfully navigated other curbs in the garage the day of her fall. But St. Elizabeth’s
own witnesses conceded that curbs were painted to alert people to elevation changes and to prevent
or minimize the risk of falls. McGinty testified that a warning was needed in this case because the
landing and parking garage floor were made of similar materials. This would make it more difficult
to see the change in elevation and, therefore, would create the need for something such as a change
in color to serve as a warning.
       This risk was highlighted by the fact that people had fallen off unpainted curbs prior to Flo’s
fall and that no one had fallen since the curbs were painted. St. Elizabeth correctly notes that it
challenged this evidence by discussing the specifics of the three reported falls and, in the process,
by distinguishing them. But in light of McGinty’s and Pearson’s testimony, the jury was not required
to conclude that these were the only falls. There was also evidence that Charles English subsequently
fell at the same spot. Furthermore, it was undisputed that the plans called for the curbs to be painted
in the first instance. We do not hold that this would be notice in all instances. But because the
hospital witnesses conceded that they should have noticed Allco had failed to paint the curbs, it is
evidence in this case.
       The evidence also sufficiently establishes proximate cause. St. Elizabeth admitted in
response to requests for admission that the curb was painted to provide notice of possible tripping
hazards. Pearson testified that the curb would have been more visible if it had been painted. Briggs
agreed that a painted curb would have given someone a better opportunity to see the elevation
change. Finally, Flo testified that she thought she would have noticed the curb if it had been painted.
       Because there is no objective test for determining whether a particular condition is
unreasonably dangerous, we must afford the jury’s determination appropriate deference. The
evidence, considered in its totality, is not so weak or so against the overwhelming weight of the
evidence as to make the jury’s decision manifestly unjust. Pool, 715 S.W.2d at 635. The evidence


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is factually sufficient to support the jury’s determination that, in this instance, the unpainted curb was
an unreasonably dangerous condition and that it was the proximate cause of Flo’s injury. Issue Two
is overruled.
        B. Charge Error.
        St. Elizabeth contends that the trial court erred by submitting a negligence question that did
not include Allco. The jury charge asked the jury to determine if St. Elizabeth and Flo were
negligent. The second question, however, asked the jury to apportion responsibility amongst three
parties: St. Elizabeth, Flo, and Allco. The Wilsons respond that any objection was waived because
it was obscured or concealed and that any error was otherwise waived because St. Elizabeth
represented to the court that it did not contend that Allco had any legal responsibility for Flo’s injury.
        The last contention is easily dispatched. The Wilsons did not object when St. Elizabeth
called their expert, McGinty, as a witness to establish that Allco breached the construction contract
by not painting the curb. Nor do the Wilsons complain that the trial court erred by including Allco
in the apportionment question. It is also clear that St. Elizabeth properly raised its objection to the
exclusion of Allco from the negligence issue and that the trial court was aware of this issue. In fact,
the trial court specifically asked the Wilsons’ counsel about this and was assured by counsel that the
Wilsons were willing to run the risk of not including Allco in the negligence issue. St. Elizabeth has,
therefore, not waived its objection to the charge.
        Whether Allco breached a duty was raised by the evidence. But this does not establish error
because there was, in fact, no dispute that Allco had breached a duty. Because there was no fact
question, the trial court did not err by not asking the jury to determine whether Allco was negligent.
Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992) (a trial court may refuse to submit a jury question
when it is not supported by any evidence).
        But even if the trial court erred, we reverse for charge error only if, after considering the
record as a whole including the pleadings, the evidence presented at trial, and the charge in its
entirety, we conclude the error probably caused the rendition of an improper verdict or probably
prevented St. Elizabeth from presenting the case to this court. TEX . R. APP . P. 44.1; Wal-Mart
Stores, Inc. v. Johnson, 106 S.W.3d 718, 723 (Tex. 2003). St. Elizabeth has shown no harm. It
argues that Allco’s responsibility could have been substantially higher than the 20% found by the


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jury if the trial court had asked the jury to determine whether Allco was negligent because Allco’s
negligence was otherwise minimized. We fail to follow this logic. Because the trial court did not
ask the jury if Allco was negligent but did ask the jury to determine Allco’s percentage of
responsibility, this would not minimize Allco’s responsibility but would be more likely seen as an
indication from the trial court that Allco was negligent. Moreover, St. Elizabeth was not precluded
from offering any evidence of Allco’s negligence or from making any argument concerning its
responsibility. The jury did assign greater responsibility to St. Elizabeth than Allco, and as the
builder, Allco had primary or initial responsibility for painting the curb. That finding, however, does
not establish harm. The garage had been operational and under St. Elizabeth’s control for almost
three years at the time of Flo’s fall. The jury could reasonably conclude that, with the passage of
time, Allco’s responsibility decreased and St. Elizabeth’s responsibility increased. Issue Three is
overruled.
        C. Subsequent Remedial Measures.
        St. Elizabeth next complains that the trial court erred by admitting evidence of subsequent
remedial measures, specifically the fact that the curb was painted after Flo’s fall. The Wilsons
respond that any error has been waived. We review a trial court’s evidentiary rulings for abuse of
discretion. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial
court abuses its discretion if it acts without reference to any guiding rules or principles or acts in an
arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985).
        The Wilsons offered into evidence a picture of the stairs that was taken after Flo’s fall and
after the step had been painted. St. Elizabeth objected, contending that the photo had not been
produced during discovery and that it referenced a subsequent remedial measure. The trial court
asked if the picture had been produced, and when the Wilsons told the court that it had, it overruled
St. Elizabeth’s objection. The Wilsons argue that the trial court only ruled on the discovery
objection and that, because St. Elizabeth did not obtain a specific ruling on its subsequent remedial
measure objection, St. Elizabeth waived this argument. We disagree. St. Elizabeth clearly brought
to the trial court’s attention its contention, and the fact that the trial court only asked counsel a




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question about discovery does not mean that the trial court did not consider the subsequent remedial
measure objection. St. Elizabeth’s contention has been preserved.
        Subsequent remedial measures are not admissible to establish liability for a prior accident.
TEX . R. EVID . 407. However, this rule is not without exception, and the Wilsons contend that the
photograph was admissible “to show the way [the curb is] supposed to be painted.” However, there
was no dispute about how the curb should have been painted. Rule 407 provides: “This rule does
not require the exclusion of evidence of subsequent remedial measures when offered for another
purpose, such as proving ownership, control, or feasibility of precautionary measures, if
controverted, or impeachment.” Because St. Elizabeth did not contest how the curb should have
been painted, this exception does not apply. In the absence of any exception, the trial court erred by
admitting evidence of a subsequent remedial measure.
        Erroneous admission of evidence is harmless unless the ruling probably caused the rendition
of an improper judgment. Rule 44.1(a). The supreme court has instructed intermediate courts
conducting a harm analysis to evaluate the whole case from voir dire to closing argument,
considering the state of the evidence, the strength and weakness of the case, and the verdict.
Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008).
        Texas law limits the admissibility of evidence of subsequent remedial measures so that the
jury does not consider them as proof of negligence. Brookshire Bros., Inc. v. Lewis, 911 S.W.2d
791, 797 (Tex. App.—Tyler 1995, writ denied). In Lewis, the court held that admission of a
subsequent remedial measure was harmful because the necessity of the remedial measure was at the
heart of the case, and the fact that it was done after the accident could be seen as an admission by
the defendant. Id. In this case, there was no question that the curbs were supposed to be painted.
Thus, the fact that St. Elizabeth painted them after Flo’s fall did not constitute an admission of an
otherwise contested issue. The trial court’s error was harmless.
        D. Subsequent Fall.
        Finally, St. Elizabeth complains that the trial court erred by admitting evidence of a
subsequent fall. Specifically, St. Elizabeth complains of evidence introduced during Pearson’s cross-
examination that someone else fell at the same curb after Flo’s injury. Pearson had previously
testified that, prior to Flo’s fall, there were no reported falls in any of the garage’s four stairwells.
He agreed with his counsel’s description of this as “pretty good safety.” On cross-examination, the
Wilsons’ counsel referred to this statement and asked Pearson if he knew Charles English.

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St. Elizabeth’s counsel asked to approach the bench. The subsequent conversation was unrecorded,
but the Wilsons’ next question was: “Do you recall Mr. Charles English who fell on the exact same
spot that Flo Wilson fell off the curb?” St. Elizabeth did not object to this question or the next, but
it did object to the clear question on the ground that the subsequent fall was irrelevant. The trial
court advised counsel that it had made its ruling, apparently referring to the bench discussion, and
directed counsel to move on. Pearson was then questioned about a report involving English falling
off the curb after exiting the stairs.
        Based upon this record, St. Elizabeth’s complaint was not preserved. See Warrantech
Corp. v. Computer Adapters Servs., Inc., 134 S.W.3d 516, 529 (Tex. App.—Fort Worth 2004, pet.
dismissed) (off-the-record bench conference does not preserve error). But even if it were, the trial
court did not abuse its discretion by finding the subsequent fall relevant. A subsequent fall would
not establish notice, but St. Elizabeth did not request a limiting instruction. However, a subsequent
fall from the same curb was probative of whether the unpainted curb was unreasonably dangerous.
St. Elizabeth’s fourth issue is overruled.
                                             IV. Holding
         The judgment of the trial court is affirmed.




                                                               RICK STRANGE
                                                               JUSTICE


January 29, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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