                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-013-CV

LAURA HALL SOLOMON                                                  APPELLANT


                                        V.

T & M CONTRACTORS, INC.                                               APPELLEE
D/B/A T & M CONSTRUCTION

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           FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      The trial court denied Appellant Laura Hall Solomon’s motion for new trial

in her negligence suit against Appellee T & M Contractors, Inc. d/b/a T & M

Construction (“T&M”), and she now appeals. In one issue, Solomon argues

that the trial court erred by denying her motion for new trial because the jury’s




      1
          … See Tex. R. App. P. 47.4.
verdict was against the great weight and preponderance of the evidence. We

disagree, and, accordingly, we affirm.

      Solomon filed suit for damages against the Woods of Bedford, TMG

Milestone Management, and T&M for injuries she sustained from falling into a

hole at the Woods of Bedford apartment complex. She claimed that as an

invitee, she was owed a duty of care by the defendants and that they were

negligent by (1) creating and maintaining an unreasonably dangerous condition,

(2) failing to warn her of the dangerous condition, (3) failing to place warning

signs and barriers around the dangerous condition, (4) failing to correct the

unreasonably dangerous condition, and (5) failing to properly maintain the

premises.

      Solomon settled with the Woods of Bedford and TMG Milestone

Management and proceeded to trial in her suit against T&M. The jury charge

asked whether T&M and Solomon were negligent, and, if so, what percentage

of negligence was attributable to each. The charge instructed the jury that

T&M was negligent with respect to the condition of the premises if the

condition posed an unreasonable risk of harm; it knew or reasonably should

have known of the danger; and it failed to exercise ordinary care to protect

Solomon from the danger, by both failing to adequately warn her of the

condition and by failing to make the condition reasonably safe. The jury was

                                         2
further instructed that negligence as to Solomon meant the “failure to use

ordinary care; that is, failing to do that which a person of ordinary prudence

would have done under the same or similar circumstances or doing that which

a person of ordinary prudence would not have done under the same or similar

circumstances.”

      The jury found Solomon 80% negligent and T&M 20% negligent. The

trial court entered a judgment in accordance with the jury’s verdict, ordering

that Solomon take nothing. Solomon filed a motion for new trial, which the trial

court denied.

Standard of Review

      When the party with the burden of proof appeals from a jury’s failure to

find, the party must show that the failure to find is against the great weight and

preponderance of the evidence. 2 A complaint that a jury answer is against the

overwhelming weight of the evidence must have been raised in a motion for

new trial.3 We review a trial court’s denial of a motion for new trial for abuse




      2
      … Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988);
see Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).
      3
      … Tex. R. Civ. P. 324(b)(2)–(3); In re M.S., 115 S.W.3d 534, 547 (Tex.
2003).

                                        3
of discretion.4

      When conducting a factual sufficiency review, a court of appeals must

not merely substitute its judgment for that of the trier of fact.5 The trier of fact

is the sole judge of the credibility of witnesses and the weight to be given to

their testimony.6

Analysis

      Contributory negligence is negligence with a “causal connection with the

accident that but for the conduct the accident would not have happened,” as

opposed to negligence that “merely increases or adds to the extent of the loss

or injury occasioned by another’s negligence.” 7 In Texas, a plaintiff may be

contributorily negligent and still recover, but not if her percentage of

responsibility for her damages is greater than 50%.8 The jury “is given wide



      4
      … Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009);
Hogue v. Propath Lab., Inc., 192 S.W.3d 641, 647 (Tex. App.—Fort Worth
2006, pet. denied).
      5
      … Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003).
      6
          … Id.
      7
      … Kerby v. Abilene Christian College, 503 S.W.2d 526, 528 (Tex.
1974); see also Young v. Thota, 271 S.W.3d 822, 829–30 (Tex. App.—Fort
Worth 2008, pet. filed) (discussing contributory negligence and causation
versus exacerbation of injuries).
      8
          … See Tex. Civ. Prac. & Rem. Code Ann. § 33.001 (Vernon 2008).

                                         4
latitude” in apportioning responsibility for an accident, and even if a different

percentage could be allocated under the evidence, “an appellate court may not

substitute its judgment for that of the jury.” 9

      The jury in this case found that both T&M and Solomon were negligent

and apportioned 80% of the responsibility for the accident to Solomon.10

Solomon argues that the jury’s finding was against the great weight and

preponderance of the evidence because T&M failed to take measures to make

the condition reasonably safe, failed to warn visitors at the complex about the

dangerous holes by way of barricading the areas, and failed to give any other

verbal or visual warning.

      At trial, the evidence established that T&M was hired to remove the

Woods’ previously existing wooden carports and replace them with metal

carports supported by steel beams. In order to set a new post, T&M would cut

a 19"–22" square in the concrete and auger a four-foot hole inside the square.

Upon leaving the work site each evening, T&M employees were supposed to



      9
     … Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 659 (Tex.
App.—Dallas 2002, pet. denied).
      10
        … See Kerby, 503 S.W.2d at 528; see also Elbaor v. Smith, 845
S.W.2d 240, 245 (Tex. 1992) (holding that the trial court should have included
a requested contributory negligence question in the jury charge because there
was some evidence that without the plaintiff’s conduct, the complained-of
injury might not have occurred).

                                        5
cover the holes with a four-by-four section of three-quarter-inch thick plywood

and barricade the area using yellow caution tape and sawhorses or cones. The

parties introduced conflicting evidence about whether this was properly done.

      Solomon testified that on June 28, 2005, some time after 5:00 p.m., she

drove to the apartment complex to meet her then boyfriend (now husband),

daughter, and son-in-law, all of whom lived in the complex. She testified that

when she arrived at the Woods on the day in question, she noticed that “there

was some construction project going on” involving the replacement of parking

spaces. She also testified that even before she arrived at the Woods, she was

aware that construction would be ongoing because she had seen signs to that

effect.

      Solomon found an available parking space that was next to the space in

which her boyfriend had parked his truck. She noticed in the spot a piece of

plywood with nails sticking out of it.     There were other parking spaces

available, but Solomon decided to park in the space with the board.        She

testified that the parking space was not barricaded or taped off. The nails in

the board were curved, but she believed they could do damage to her tires.

She “possibly” could have parked in the space without driving over the board,

but she decided to move the plywood before parking there. She stopped her

car, got out, and lifted the plywood. Upon doing so, she stepped forward and

                                      6
fell into a large hole that had been covered by the plywood, injuring herself. At

trial, she acknowledged that she was holding the board in such a way that she

could not see the ground in front of her as she walked. After her accident, she

did not report what happened to anyone, never asked her boyfriend to report

it to anyone, and never asked her daughter to report it to anyone.

      Solomon’s husband Jim testified on her behalf.       He stated that after

Solomon’s accident, he took her to the hospital, and that when he returned,

someone had covered the hole again with the same plank of wood. He did not

see any caution tape or barricade marking the area.

      Trey Murchison, the T&M employee in charge of the T&M work crew,

testified by deposition. He stated that at the end of every work day, he made

sure that the crew cordoned off any area where holes had been dug and that

he had checked the area before the crew left that day. Solomon’s attorney

showed him a photograph taken by Carol Harms, the fiancée of a resident of

the complex. The photograph showed a parking space with a piece of plywood

in it that had no barricading or caution tape marking it off. When shown the

picture, Murchison acknowledged that no barricades were visible in the picture

but testified that such a hole is still secure as long as the plywood is covering

it. T&M’s owner, Tim Giles, was also asked about the picture. He stated that

the only time that the area was not barricaded or taped off was while his crew

                                       7
was working. He asserted that Harms’s picture showed no barricades or tape

because it was taken while the crew was there working.

      Murchison further testified that on the day of Solomon’s injury, he

received a call from Giles telling him that someone had reported an accident.

He testified that he met the apartment complex maintenance man, Brian James,

and the two men inspected the area where holes had been dug that day and

found no uncovered holes and no evidence of an accident. When he went to

the site, he saw that the barricades, cones, and plywood were all still in place.

      Lisa Crumpton, the community director of the Woods, testified that on

the day of Solomon’s accident, a contractor in the complex to do countertop

refinishing came into the office and mentioned an accident had occurred out on

the property. He did not give an exact location or name of the injured person.

Based on that report, Crumpton went out onto the property to see where the

accident might have happened, but she did not see anyone or any problem.

She called James and someone with T&M to report the possibility of an

accident.   She testified that no one ever contacted the office to report

Solomon’s accident.    She further stated that she periodically inspected the

property during the time construction was ongoing and that she never saw any

areas that should have been barricaded but were not.




                                       8
      James testified that he and Murchison inspected the area after learning

that an accident had occurred and that he did not see any holes uncovered. He

further testified that he had never seen any areas that had not been properly

cordoned off during the time of the construction. He testified that there were,

however, some holes in the street, that those were covered with plywood, and

that some of those did not have barricades.

      Tommy Woodell, a former resident of the Woods, and Harms, his fiancée,

testified by deposition. Woodell testified that he is involved in his own lawsuit

resulting from injuries he allegedly suffered from falling into a hole in the

parking lot two days before Solomon’s accident. Both Woodell and Harms

testified that Woodell was injured when the two attempted to move a piece of

plywood in a parking space with nails sticking out of it. Both testified that it

was next to a space in which a neighbor with young children often parked, and

that because they did not want anyone to get hurt by the nails, they decided

to move the board.     Harms testified that the area with the board was not

surrounded by barricading or caution tape. When Woodell lifted the board and

took a step forward, he fell into the hole that the board had been covering.

Harms admitted that Woodell had been drinking before his accident.

      Harms testified that the next day, she went out to the work crew and told

the person pointed out to her as the foreman about what happened. She did

                                       9
not describe Woodell’s injuries but did tell the person that Woodell had fallen

into a hole. She testified that the man must have heard her because she was

about four or five feet away but that he only stared at her and did not say

anything to her. That same day, Harms took photographs of the hole in which

Woodell allegedly fell, the board that had been covering it, and the area around

it. She took pictures of the work crew about a week later.

      Both Harms and Woodell testified that they were aware of the work being

done in the parking lot. Woodell testified that some areas were barricaded but

that the area of the plywood-covered hole in which he injured himself was not

barricaded or taped off. Harms also testified that the area was not barricaded.

Woodell’s accident occurred on a Sunday, and he could not say whether tape

had been up around the area earlier in the day or if someone had removed the

tape. When asked if he would have stepped in the hole if he had not removed

the plywood, Woodell responded, “There would be no way to fall in the hole if

you didn’t move the plywood.”

      In Murchison’s deposition testimony, he denied that Harms told him about

Woodell’s accident, testifying that he was not made aware of an incident taking

place on June 26, 2005, until he received a call from Crumpton informing him

that the apartment complex had received a letter from an attorney representing

Woodell. Murchison testified that the company did not use plywood with nails

                                      10
in it to cover holes and that he had never seen plywood with nails in it covering

a hole at the job site. Murchison was shown a picture, taken by Harms, of a

piece of plywood covering one of the holes, and the plywood had nails in it.

Harms identified the board in the picture as the one that Woodell had moved.

Murchison testified that he never saw such a board covering any of the holes,

and if he had, he would not have allowed it because of the potential damage

to his equipment.     When asked by T&M’s attorney, he agreed that the

photograph did not show whether any of the nails actually protruded through

the board.

      Solomon’s boss, Dr. Martin Wax, testified that she called him sometime

after her accident to tell him about her injury and that she would not be coming

into work the next day. He testified that she described what had happened as

getting out of her car and “not hav[ing] solid ground where she exited”; that it

was “a footing issue”; and that she never told him that she lifted a board and

stepped into an exposed hole.

      The dangerous condition was the hole. A question at trial was whether

T&M had taken steps to make the condition reasonably safe. T&M contended

that it used new pieces of plywood to cover the holes and that it barricaded the

area surrounding the hole. It also contended that even without barricades, the

hole was safe as long as the board was covering it. Woodell supported that

                                       11
claim when he admitted that there would be no way to fall in the hole without

moving the board.

      Solomon argued that the hole was not made safe by T&M’s efforts

because the area was not barricaded and the plywood had nails in it. But it

was not the nails themselves that caused Solomon’s injury. Rather, it was her

decision to move the board because of the nails so that she could park in the

space where the board was located. She admitted at trial that other parking

spaces were available and that if she had been worried about driving over nails

in the board, she could have parked elsewhere without having to move the

board. The picture of the nail-ridden board that Solomon used to show the

reasonableness of her actions was taken the day before Solomon’s accident,

did not show nails protruding through the board, and was not established as

being the same board later covering the hole that caused her injury. Solomon

acknowledged that it was possible that she could have parked in the space

without driving over the board; rather than attempt it, she made the decision

to move the board. Both Woodell and Solomon testified that they would not

have fallen if they had not moved the boards covering the holes. The jury also

heard Solomon agree with the statement of T&M‘s attorney that when she

picked up the board, she held it in such a way that it obstructed her view of




                                      12
where she was walking and that “it’s a good idea to be able to see where you

are going and know where you are stepping before you start walking.”

      Solomon seems to argue that T&M should have known that covering the

hole with a board with nails in it was not enough to make the area safe because

by the time of her accident, another person had been injured when he

attempted to move a board with nails in it, and T&M had been informed of the

problem. Thus, T&M should have known that covering the holes with a board

with nails would create a condition that could lead to injury. But even assuming

that such knowledge would make T&M more negligent than Solomon, the jury

heard conflicting testimony about what T&M knew and when, and the jury was

free to accept one version and disregard another.        And although Solomon

contends that T&M made the condition of the hole more dangerous because a

person like her would see nails protruding from the board and believe that it

constituted a dangerous condition for everyone at the complex, the evidence

does not support a finding that she acted out of concern that third parties might

be injured. Her professed concern was for her tires.

      The jury—the sole judge of the credibility of testifying witnesses 11 —heard

conflicting evidence about whether T&M properly barricaded parking areas




      11
           … Golden Eagle Archery, 116 S.W.3d at 761.

                                       13
where work was being done and whether it used new plywood or reused old

plywood with protruding nails. From the evidence at trial, the jury could have

concluded that although T&M should have done a better job with safety

measures and was negligent in its failure to do so, Solomon would not have

been injured absent her own negligence and that she was primarily responsible

for her accident.   The jury could have believed, based on the evidence

presented, that Solomon was aware of construction going on involving work on

the parking spaces, that she had other parking spaces available to her, that the

board was not dangerous to drive over, that if she had not taken it upon herself

to move the board, she could not have fallen in the hole, and that she could

have avoided the accident by watching her step. Its finding was not so against

the great weight and preponderance of the evidence so as to be manifestly

unjust. 12 We overrule Solomon’s sole issue.

      Having overruled Solomon’s sole issue, we affirm the trial court’s

judgment.

                                                 PER CURIAM

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: December 31, 2009


      12
        … See Rosell, 89 S.W.3d at 659 (noting that jury has wide latitude in
apportioning responsibility for an accident).

                                      14
