












 
 
 
 
 
 
 
                                    NUMBER 13-00-193-CV
 
                              COURT OF APPEALS
 
                   THIRTEENTH DISTRICT OF TEXAS
 
                       CORPUS CHRISTI
B
EDINBURG
 
 
DORIS GRAF
ELMER                                                              Appellant,
 
                                                   v.
SPEED BOAT LEASING, INC. AND 
PARADISE GULF
CRUISES, INC.,                                              Appellee.
 
                         On appeal from
the103rd District Court
                                 of Cameron
County, Texas.
 
 
                                    O P I N I
O N
Before Chief Justice Valdez
and Justices Rodriguez and Cantu[1]
Opinion
by Chief Justice Valdez
 




Appellant, Doris
Elmer, brought suit against appellees, Speed Boat Leasing, Inc. and Paradise
Cruises, Inc., for personal injuries which she sustained while on a boat ride
off the shore of South Padre Island, Texas. 
Appellant was awarded a take nothing judgment, which she appeals.  We reverse the trial court=s judgment and remand
the cause for a new trial.
In 1996, appellees
began operating a fifty-two foot speed boat out of South Padre Island,
Texas.  The vessel, named the Gulf
Screamer, was advertised as a vessel that would provide an exciting, fun-packed
cruise for all in the open waters near South Padre Island=s beautiful beaches.  Appellant, a seventy year old woman, was in
her office working, when she was approached and offered a boat ride on the Gulf
Screamer in exchange for allowing an advertisement for the boat to be placed in
her office.  Thereafter, appellant and
her husband boarded the Gulf Screamer for a ride.  It is undisputed that appellant was advised
to hold onto her seat if the ride got rough, as there were no handles or
seatbelts in the seat where appellant was seated.  The ride did get rough and appellant states
she was unable to hold onto her seat.  As
a result, appellant flew up out of her seat and then back down, which resulted
in appellant fracturing her spine.




After hearing
evidence, the trial court gave the jury the standard definition of Anegligence@ under Texas law,
which defines it as the Afailure to use
ordinary care.@  Appellant argued that the jury should be
instructed that appellees should be held to a higher degree of care.  Appellant=s requested instruction was denied.  The jury returned a verdict which found that
both appellant=s and appellees= negligence
proximately caused the occurrence in question. 
The verdict further attributed thirty-five percent of the negligence to
appellees and sixty-five percent to appellant. 
Based on this verdict, the trial court entered judgment which ordered
that appellant take nothing from appellees.
Appellant presents
three issues on appeal.  Appellant first
argues that the issue of her contributory negligence should not have been
submitted to the jury because there was no evidence of same, as a matter of
law.  Second, appellant argues, in the
alternative, that there was insufficient evidence to support the jury=s finding of her
contributory negligence.  Last, appellant
argues that the trial court erred in instructing the jury that appellees were
under a duty to exercise a higher degree of care with their passengers on the
boat.
In her first issue,
appellant complains that the issue of contributory negligence should not have
been submitted to the jury, as there was no evidence of appellant=s negligence.  In her second issue, appellant complains that
the evidence was factually insufficient to support the jury=s finding of appellant=s negligence.




When reviewing a Ano-evidence@ issue, we must
consider all of the evidence in the record in the light most favorable to the
party in whose favor the verdict has been rendered, and we must apply every
reasonable inference that could be made from the evidence in that party's
favor.  Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997). 
In this review, we disregard all evidence and inferences to the
contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.
1995); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex. 1990).  We will sustain a no-evidence issue when: (1)
there is 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 evidence offered to prove a vital fact
is no more than a mere scintilla of evidence; or (4) the evidence conclusively
establishes the opposite of the vital fact. 
Havner, 953 S.W.2d at 711. 
More than a scintilla of evidence exists when the evidence supporting
the finding, as a whole, rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions.  Id.; Burroughs Wellcome Co.,
907 S.W.2d at 499. 
In reviewing a factual
insufficiency issue, we consider and weigh all of the evidence and set aside
the verdict only if the evidence is so weak or the finding so against the great
weight and preponderance of the evidence that it is clearly wrong and
unjust.  Cain v. Bain, 709 S.W.2d
175, 176 (Tex. 1986).
After carefully
reviewing the record, we find sufficient evidence to justify the submission of
the issue of contributory negligence to the jury, and to support the jury=s finding on this
issue.




The evidence presented
at trial revealed the following: appellant and her husband first positioned
themselves in the boat, but then decided to move closer to the front of the
boat, where the ride would be rougher; the captain of the boat gave the
passengers a safety lecture, which included the information that the ride was
rougher at the front of the boat; appellant had a history of osteoporosis and
had taken medication which weakened her skeletal structure; appellant was
instructed to hold on to her seat if the ride became rough, but appellant
stated that she was unable to do so; and finally, there was nothing preventing
appellant from holding onto her seat during the boat ride.  Based upon the foregoing, we conclude there
is more than a scintilla of evidence to support the jury=s finding on this
issue, and the evidence is not so weak such that the verdict is clearly wrong
and unjust.  Havner, 953 S.W.2d at
711; Cain, 709 S.W.2d at 176. 
Accordingly, there is both legally and factually sufficient evidence
upon which the jury could have based their finding that appellant=s negligence
contributed to her injury.
Issues one and two are
overruled.
We next address
appellant=s third issue, the
question of whether the trial court charged the jury with the correct standard
of care.
The trial court
instructed the jury that Anegligence@ means failure to use
ordinary care.  The trial court further
instructed the jury that Aordinary care@ means that degree of
care that would be used by a person of ordinary prudence under the same or
similar circumstances.  These
instructions follow the suggested instructions in the Texas Pattern Jury
Charges.  Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury
Charges PJC 2.1 (2000).  They
include the standard and accepted elements of ordinary negligence.  Colvin v. Red Steel Co., 682 S.W.2d
243, 245 (Tex. 1984); Great Atl. & Pac. Tea Co. v. Evans, 175 S.W.2d
249, 250-51 (Tex. 1943).




Appellant requested,
however, that the court instruct the jury that the appellees be held to a
higher standard of care under the theory that appellees were common carriers,
or alternatively, under the theory that appellees were operating a vessel at
sea.  However, appellant concedes, in her
brief, that the application of substantive maritime law herein was waived.[2]  Accordingly, we will examine whether
appellees were common carriers, as that term as been defined by the courts of
this state.  
The term common
carrier has been applied to those in the business of carrying passengers and
goods who hold themselves out for hire by the public.  Mt. Pleasant Ind. Sch. Dist. v. Lindburg,
766 S.W.2d 208, 213 (Tex. 1989).  It is
undisputed that common carriers are held to a high degree of care.  Dallas Railway & Terminal v. Travis,
78 S.W.2d 941, 942 (Tex. 1935).  A high
degree of care is defined as that degree of care that would be exercised by a
very cautious and prudent person under the same or similar circumstances.  Id.; 
Comm. on Pattern Jury Charges,
State Bar of Tex., Texas Pattern Jury Charges PJC 2.2 (2000).




Appellees respond that
they should not be held to the same standard of care as common carriers because
appellant did not pay for the ride.  In
support of this argument, appellees cite two cases, Mt. Pleasant Ind. Sch.
Dist. V. Estate of Lindburg, 766 S.W.2d 208 (Tex. 1989), and Howell v.
City Towing Assocs., Inc., 717 S.W.2d 729 (Tex. App.BSan Antonio 1986, writ
ref=d n.r.e.).  The court in Mt. Pleasant held that
school buses are not common carriers because they are not in the business of
carriage for hire.  Mt.
Pleasant Ind. Sch. Dist., 766 S.W.2d at 213.  In Howell, the court held that a tow
truck operator was not a common carrier because a wrecker service company does
not operate a passenger service open to all the public.  Howell, 717 S.W.2d at 733.  While appellees correctly cite the holdings
in Mt. Pleasant and Howell, appellees overlook the fact that they
held themselves out for hire by the public. 
Further, appellees did receive consideration from appellant, inasmuch as
appellant agreed to allow an advertisement to be placed in her office.  
Appellees go on to
argue that, because operators of thrill or amusement rides do not transport
their passengers from place to place, they do not owe their passengers a high
degree of care.  Appellees offer a single
unpublished opinion from the Court of Appeals for the First District of Texas,
as authority for the proposition that amusement ride operators are not common
carriers.  However, said opinion has no
precedential value, and counsel for appellees is prohibited from citing
unpublished opinions as authority.  Tex. R. App. P. 47.7.  Our own research reveals that, while no other
Texas court has addressed the issue of whether amusement ride operators are
common carriers, numerous other jurisdictions are split as to whether operators
of amusement rides owe a high duty of care to their passengers.




Those jurisdictions
which have held amusement park operators to a higher standard of care include: Neubauer
v. Disneyland, Inc., 875 F.Supp. 672 (C.D. Calif. 1995) (holding that
amusement park rides fall within definition of common carrier); Lyons v.
Wagers, 404 S.W.2d 270 (Tenn. Ct. App. 1966) (operator of amusement ride
owes his patrons same degree of care owed by common carrier to its passengers,
which is the highest degree of care); Lewis v. Buckskin Joe's, Inc., 396
P.2d 933 (Colo. 1964) (operator of amusement park's stage-coach ride held to
highest duty of care); Pajak v Mamsch, 87 N.E.2d 147 (Ill. App. Ct.
1949) (court acknowledges that operator of ferris wheel held to highest degree
of care, equivalent to that of common carrier); Coaster Amusement Co. v.
Smith, 194 So. 336 (Fla. 1940) (operator of roller coaster held to highest
degree of care equivalent to that of common carrier); Bibeau v. Fred W.
Pearce Corp., 217 N.W. 374 (Minn. 1928) (operator of roller coaster held to
highest degree of care equivalent to that of common carrier); Cooper v.
Winnwood Amusement Co., 55 S.W.2d 737 (Mo. Ct. App. 1932) (operator of
roller coaster held to the highest degree of care equivalent to that of common
carrier); Sands Springs Park v. Schrader, 198 P. 983 (Okla. 1921)
(operator of scenic railway held to duty of highest care and caution). 




Those jurisdictions
which have held that amusement ride operators are not common carriers, and thus
owe a duty of ordinary care to their passengers, include the following: Bregel
v. Busch Entm=t Corp., 444 S.E.2d 718 (Va.
1994) (gondola ride at amusement park held not common carrier); Beavers v.
Fed. Ins. Co., 437 S.E.2d 881 (N.C. Ct. App. 1994) (white water rafting
operator held not common carrier); Lamb v. B & B Amusement Corp., 869
P.2d 926 (Utah 1993) (roller coaster operator not common carrier); Harlan v.
Six Flags over Georgia, Inc., 297 S.E.2d 468 (Ga. 1982) (amusement ride
operator held to standard of ordinary care); Eliason v. United Amusement Co.,
504 P.2d 94 (Or. 1972) (court held merry-go-round operator not subject to
heightened standard of care); U.S. Fidelity & Guaranty Co. v. Brian,
337 F.2d 881 (5th Cir. 1964) (under Louisiana law, operator of an amusement
ride is not common carrier); Firszt v. Capital Park Realty Co., 120 A.
300 (Conn. 1923) (operator of Aaeroplane swing@ not held to high
decree of care required by common carriers); Brennan v. Ocean View Amusement
Co., 194 N.E. 911 (Mass. 1935) (operator of roller coaster was not common
carrier).
We endorse the
rationale of those courts which have held amusement ride operators to a higher
standard of care.  While appellees have
argued, and some courts have stated, that amusement ride operators are not
common carriers because they do not offer transportation from one locale to
another, we find that reasoning unpersuasive. 
See Harlan v. Six Flags Over Georgia, Inc., 297 S.E.2d 468, 469
(Ga. 1982) (distinguishing between instruments of transportation and amusement
rides).  Instead, we find persuasive the
analysis of the Supreme Court of Colorado, which stated: 
It is not important
whether defendants were serving as a carrier or engaged in activities for
amusement. The important factors are, the plaintiffs had surrendered themselves
to the care and custody of the defendants; they had given up their freedom of
movement and actions; there was nothing they could do to cause or prevent the
accident. Under the circumstances of this case, the defendants had exclusive
possession and control of the facilities used in the conduct of their business
and they should be held to the highest degree of care, and the court should
have so instructed the jury. . . .
 
Buckskin Joe=s, 396 P.2d at 939.




In
the present case, we likewise find it is not important whether appellees were
serving as a carrier or engaged in activities for amusement, rather the
important factors are that appellant, who was injured when the boat hit rough
seas, had surrendered herself to appellees' care and custody, and that she had
given up her freedom of movement and actions. Therefore, under circumstances of
this case, appellees had exclusive possession and control of facilities used in
conduct of their business and they should be held to a high degree of
care.  The trial court erred by not
instructing the jury accordingly.
We
next determine whether this error was harmful. 
For this Court to reverse on a jury charge error, the appellant must
show harmful error.  Boatland, Inc. v.
Bailey, 609 S.W.2d 743, 749-50 (Tex. 1980). 
Error in the jury charge is reversible if it probably caused rendition
of an improper judgment.  Tex. R. App. P. 44.1(a); Timberwalk
Apts., Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).  To determine harm, we must consider the
entire record, including the parties= pleadings, the
evidence and the charge.  Timberwalk
Apts., 972 S.W.2d at 756.  Using the
wrong legal standard when determining liability constitutes error that
certainly would cause rendition of an improper judgment.  Graham v. Tyler County, 983 S.W.2d
882, 885 (Tex. App.BBeaumont 1998, no
pet.).




In
the present case, the issue of negligence was closely contested, and the jury
in fact found that both appellant and appellees were negligent, assigning
proportions of negligence to each.  In
light of the fact that the case was closely contested, we find that the
erroneous jury instruction Aprobably caused the
rendition of an improper judgment,A as the jury=s proportionment of
negligence would have almost certainly been different had the jury been
properly instructed that the appellees were to be held to a higher standard of
care.  Tex.
R. App. P. 44.1(a).  Accordingly,
we find that the trial court=s error was harmful
and we sustain appellant=s issue number three.
The
judgment of the trial court is reversed and this cause is  remanded for further proceedings consistent with
this opinion.
                                                                
                                      
ROGELIO VALDEZ
Chief Justice
Publish.
Tex. R. App. P. 47.3(b).
 
Opinion
delivered and filed
this 27th day of June, 2002.




[1]
Retired Justice Antonio G. Cantu assigned to this Court by the Chief Justice of
the Supreme Court of Texas pursuant to Tex.
Gov=t Code Ann. '
74.003 (Vernon 1998).


[2]
The application of substantive maritime law is a choice of law
determination that can be waived.  Gen.
Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993).


