AFFIRM; and Opinion Filed May 29, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-12-01133-CV

                       DALLAS AREA RAPID TRANSIT, Appellant
                                      V.
                             DAVID MORRIS, Appellee

                      On Appeal from the 193rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-11-07709

                                         OPINION
                        Before Justices FitzGerald, Fillmore, and Evans
                                 Opinion by Justice Fillmore
       Appellee David Morris was injured when he fell while riding on a bus operated by

appellant Dallas Area Rapid Transit (“DART”). Morris sued DART alleging that his injuries

were caused by the negligent operation of the bus. After a jury trial, the trial court rendered

judgment for Morris based on the jury’s verdict. In four issues, DART asserts the trial court

erred by (1) including in the jury charge a “high degree of care” standard applicable to a

common carrier; (2) refusing to include a jury instruction on unavoidable accident; (3) excluding

evidence of Morris’s past medical history; and (4) permitting improper and incurable jury

argument. We affirm the trial court’s judgment.
                                           BACKGROUND

       Morris rode a DART bus to work every day for over a decade. On January 12, 2010,

Morris boarded a DART bus at his regular stop. Morris testified at trial that he usually grabbed

the handrail when he boarded the bus in the morning and did so on the day of the accident. He

climbed the steps to the fare box at the right of the driver’s seat and slid his bus pass through the

fare box reader. He turned around to see where he could sit. He took one step toward the seats,

but had not yet crossed a yellow line near the fare box when the bus lurched forward. He

testified, “suddenly the bus lurched forward with a jerking motion which threw me forward.” He

tried to regain his balance, but the bus jerked again and he fell, breaking his leg in three places.

Morris testified unequivocally that he had not crossed the yellow line. He was taken to the

emergency room at Parkland Hospital, where his leg was reset. He testified that the break and

the resetting were extremely painful. He had surgery later the same day, and was in the hospital

for a total of five days. He used a wheelchair for eight weeks after his discharge from the

hospital. He returned to the hospital twice for infections around the surgical site. He missed

approximately 200 hours of work, and he lost wages of about $3,500 “after taxes.” His past

medical expenses were approximately $40,000. At the time of trial, Morris had returned to work

but still suffered pain from one of the fractures that had not healed.

       Rickey Nelson was the driver of the bus. At trial, Nelson testified that behind the driver’s

seat on the bus, there was a yellow line that crossed the aisle. He confirmed DART’s policy that

all passengers must be behind the yellow line when the bus starts to move. He testified that

Morris entered the bus and passed him. He heard a thump, turned around, and saw Morris on the

floor of the bus. Nelson thought Morris “just lost his footing;” there was “no jerk, no lunge” of

the bus as it left the bus stop. He denied that Morris appeared unsteady on his feet, stating

“[h]e’s pretty sturdy.” Nelson called “dispatch,” who apparently called an ambulance.

                                                 –2–
       Fellow bus passengers Carla Norman and Nataki Johnson also testified at trial. Both

witnessed Morris’s fall. Both testified that the bus lurched or jerked causing Morris to stumble

and fall. They both testified that the fall occurred before or just as Morris crossed the yellow

line. Johnson testified that Morris’s leg “was clearly broken.”

       All of the witnesses admitted that there were railings in the bus but Morris did not use

them. Morris acknowledged that there were railings throughout the bus to hold onto, and that he

had used them on the day of the accident when boarding the bus. However, he did not grab a rail

after he scanned his bus pass.

       Morris suffered a stroke in 2006. Although the medical records relating to his fall on the

bus mentioned his stroke in his medical history, none of the records cited the stroke or any

residual effects from it as contributing to Morris’s fall. DART did not offer any evidence or any

expert opinion connecting the stroke to Morris’s fall.

       The jury found that both Nelson and Morris were negligent. The jury found Nelson to be

75 percent responsible and Morris to be 25 percent responsible. The jury awarded $40,925.95

for past medical expenses and $4,053.28 for past loss of earning capacity, the amounts requested

by Morris. The jury also made three awards of $45,000 each for past physical pain, mental

anguish, and physical impairment, and three awards of $75,000 each for future physical pain,

mental anguish, and physical impairment. The jury awarded zero damages for both past and

future disfigurement. The trial court rendered judgment on the jury’s verdict and in accordance

with the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001–101.109

(West 2011 and Supp. 2013). The trial court’s judgment recited that the total damages awarded

by the jury to Morris were $303,734.32 after reducing the award by 25 percent for Morris’s

comparative negligence. The judgment also recited that pursuant to section 101.023(b) of the

Texas Civil Practice and Remedies Code, Morris’s actual damages “are capped at $100,000.”

                                               –3–
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.023(b) (limiting liability of unit of local

government to money damages in a maximum amount of $100,000 for each person). The trial

court denied DART’s motion for new trial. This appeal followed.

                                          JURY CHARGE

        In its first and second issues, DART complains of errors in the jury charge. We review a

trial court’s decision to submit or refuse a particular instruction under an abuse of discretion

standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006); Bryan v. Watumull, 230

S.W.3d 503, 508 (Tex. App.—Dallas 2007, pet. denied). Submission of the charge is the trial

court’s responsibility, and the trial court is given wide latitude to determine the propriety of

explanatory instructions and definitions. Spencer v. Eagle Star Ins. Co. of America, 876 S.W.2d

154, 158 (Tex. 1994); H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex. 1998). Rule

277 affords the trial court considerable discretion in deciding what jury instructions are

necessary and proper.       See TEX. R. CIV. P. 277 (court shall submit such instructions and

definitions as shall be proper to enable jury to render a verdict); Bryan, 230 S.W.3d at 508. For

an instruction to be proper, it must: (1) assist the jury, (2) accurately state the law, and (3) find

support in the pleadings and evidence. Id. (citing rules 277 and 278, Texas Rules of Civil

Procedure).

                                        Standard of Care

        The first question in the jury charge inquired whether “the negligence, if any, of those

named below proximately cause[d] the occurrence in question.” The jury was given separate

blanks for Nelson and Morris and was asked to answer “yes” or “no” for each.                 Several

instructions accompanied this question, including a definition for “high degree of care.” The

trial court instructed the jury:

                “HIGH DEGREE OF CARE” when used with respect to the
                conduct of Rick[e]y Nelson means that degree of care that would
                                                –4–
               be used by a very cautious, competent, and prudent person under
               the same or similar circumstances.

DART makes two complaints about this instruction. First, it argues that the instruction was an

incorrect statement of the law, because the “high degree of care” standard applies only to

common carriers, and DART is not a common carrier. Second, DART contends that because

Morris failed to plead this standard of care in his petition, it was improper to include the

instruction in the charge to the jury.

       We first conclude that the “high degree of care” standard applies to DART because

DART is a common carrier. Although no appellate court has previously held explicitly that

DART is a common carrier, several courts have applied the high degree of care standard to

DART or a similar transit authority. See, e.g., City of Dallas v. Jackson, 450 S.W.2d 62, 63

(Tex. 1970) (bus company “as a carrier of passengers, is under a duty to exercise such a high

degree of foresight as to possible dangers and such a high degree of prudence in guarding against

them, as would be used by a very cautious, prudent and competent man under the same or similar

circumstances”); Dallas Area Rapid Transit v. Perkins, No. 05-94-01557-CV, 1995 WL 379247,

at *1 (Tex. App.—Dallas May 30, 1995, no writ) (not designated for publication) (in context of

passenger suit for injuries sustained on DART bus, “high degree of care” standard applied

without discussion to DART as common carrier); Johnson v. Metro. Transit Auth., No. 01-99-

00978-CV, 2001 WL 1243646, at *4 (Tex. App.—Houston [1st Dist.] Oct. 18, 2001, pet. denied)

(not designated for publication) (where passenger alleged injury on METRO bus, trial court did

not err by submitting pattern jury charge on high degree of care for common carrier). “It is well

settled that common carriers are held to a higher standard of care when transporting passengers.”

Speed Boat Leasing, Inc. v. Elmer, 124 S.W.3d 210, 212 (Tex. 2003) (citing Mount Pleasant

Indep. Sch. Dist. v. Lindburg, 766 S.W.2d 208, 213 (Tex. 1989) and Dallas Ry. & Terminal Co.

v. Travis, 78 S.W.2d 941, 942 (Tex. 1935)).
                                              –5–
           The supreme court has defined “common carriers” 1 as “those in the business of carrying

passengers and goods who hold themselves out for hire by the public.” Id. (citing Lindburg, 766

S.W.2d at 213). In Elmer, the supreme court instructed that “[w]hen determining whether

someone who provides transportation is a common carrier, we look to their primary function.”

Id. at 213. The court explained, “[i]t must be determined whether the business of the entity is

public transportation or whether such transportation is ‘only incidental’ to its primary business.”

Id. The court noted that “[t]he term has been held to include railroads, buses, airplanes, taxis,

street cars, and other vehicles.” Id. at 212–13 (citing Howell v. City Towing Assocs., Inc., 717

S.W.2d 729, 733 (Tex. App.—San Antonio 1986, writ ref’d n.r.e.)).                                                  Because the primary

function of the speed boat operator in Elmer was to entertain rather than “to transport from place

to place,” it was not a common carrier. Id. at 213–14. Similarly, the primary purpose of the

school district in Lindburg was not “the business of carriage for hire,” but “to further the

educational needs of the citizens within the district.” Lindburg, 766 S.W.2d at 213.

           DART makes several arguments in support of its contention that it is not a common

carrier: (1) the Texas Tort Claims Act’s limited waiver of immunity for personal injury arising

from the negligent operation of a motor-driven vehicle 2 does not impose common carrier status

or a “high degree of care” standard on the governmental entity; (2) as a “regional transportation

authority” under the Texas Transportation Code, 3 DART is not operated for a profit; is funded in

part by grants and tax dollars; and the fares charged do not equal the cost to provide the service;
     1
        In Elmer, the supreme court explained that although the Texas Transportation Code does not define common carriers, a predecessor
statute defining the duties and liabilities of a common carrier included “railroad companies, and other carriers of passengers, foods, wares,
merchandise for hire, within this state, on land, or in boats or vessels on the waters entirely within this state.” Elmer, 124 S.W.3d at 212 (quoting
TEX. TRANSP. CODE ANN. § 5.001 revisor’s note).
     2
       See TEX. CIV. PRAC. & REM. CODE § 101.021(1) (West 2011) (governmental unit is liable for personal injury proximately caused by
wrongful act, omission, or negligence of employee acting within scope of employment if personal injury arises from operation or use of motor-
driven vehicle and employee would be personally liable to claimant according to Texas law).
     3
       Section 452.056 of the Texas Transportation Code permits a regional transportation authority to “own, operate, and maintain a public
transportation system in the territory of the authority.” See TEX. TRANSP. CODE ANN. § 452.056 (West 2013). “Public transportation” is defined
as “the conveyance of passengers and hand-carried packages or baggage of a passenger by any means of transportation.” TEX. TRANSP. CODE
ANN. § 452.001(9).



                                                                       –6–
and (3) there is nothing in the record in this case to establish that DART is in the “business” of

carrying passengers for hire because there is no evidence that Morris paid a fare to ride the bus

on the day in question. We reject these arguments.

           First, under the Tort Claims Act, the liability of the governmental unit is determined

“according to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(B); see also Perez

v. City of Dallas, 180 S.W.3d 906, 910 (Tex. App.—Dallas 2005, no pet.) (Tort Claims Act

immunity waived “if the governmental unit would be liable to the claimant according to Texas

law if it were a private person” under section 101.021(2)). Section 101.021(1)(B) does not

provide any standards of care, instead referencing existing principles of Texas law. According to

Texas law, if DART is a common carrier, it owes a high degree of care to its passengers. See

Elmer, 124 S.W.3d at 212.

           Second, the amount of profit, cost of providing service, and source of funds are not

factors the supreme court has considered in determining whether a party is a common carrier.

Instead, as the court explained in Lindberg, the decision to impose a heightened standard of care

was based “on the nature of the business of carriage.” Lindberg, 766 S.W.2d at 213 (citing

Galveston City Ry. Co. v. Hewitt, 3 S.W. 705 (Tex. 1887)). 4 “The rationale for holding common

carriers to a higher standard is that passengers should feel safe when traveling.” Elmer, 124

S.W.3d at 212 (citing cases). “Those in the business of carrying passengers and goods who hold

themselves out for hire by the public are burdened with the duties of a common carrier.”

Lindburg, 766 S.W.2d at 213 (citing Mayhew v. McFarland, 153 S.W.2d 428 (Tex. 1941)).
   4
       The court in Hewitt explained the rationale for the heightened standard of care:

                      It is frequently said that a carrier of passengers is bound to exercise a high degree of care for their
                      safety; and that for an injury resulting to them from what is termed negligence or slight negligence
                      the carrier will be liable, and that the duty to exercise extreme care results from the contract of
                      carriage, express or implied. This is true, but it is not the whole truth; for the duty arises from the
                      hazardous character of the business, and the fact that human life is imperiled by it. The contract
                      creates the relation of carrier and passenger, but that is not the main source from which springs the
                      duty of the carrier to exercise a high degree of care.

           Hewitt, 3 S.W. at 707–08.


                                                                       –7–
DART identifies itself in its brief as a “regional transportation authority,” and does not dispute

that it holds itself out for hire by the public. See Elmer, 124 S.W.3d at 212. It does not contend

it has any purpose other than “to transport [passengers] from place to place.” See id. at 213. In

fact, as Morris points out, DART’s counsel argued to the jury that “DART is out there attempting

to transport people around the Dallas area; that’s what regional transportation authorities do, we

are a public transportation authority. We transport people by buses and trains.” DART’s lack of

profit and its partial funding through tax dollars does not alter these factors.

          Finally, the record reflects that on the day in question, DART was carrying passengers for

hire. Morris testified he slid his bus pass “through the fare box reader” when he boarded the bus.

Nelson testified that a passenger with a bus pass swipes the pass through a slot in the fare box

“just like a credit card.” Morris and two other passengers testified that they rode the DART bus

to commute to and from work. There was testimony from more than one witness about the fare

box on the bus. 5 Other passengers were riding the bus. In sum, the record reflects that DART

“engages in the transportation of persons or things from place to place for hire and holds [itself]

out as ready and willing to serve the public in the branch of transportation for which [it] is

engaged.” See id. at 212. DART is a common carrier.

          Next, we consider whether Morris was required to plead the applicable standard of care

in his petition. At the charge conference, the trial court identified as a “preliminary issue”

whether or not the plaintiff was required to plead the applicable standard of care. The court

stated that the plaintiff had requested a trial amendment.                                     Morris’s counsel clarified that

“plaintiff’s initial position [is] that it’s not required to request a trial amendment in that


     5
        In any event, the payment of consideration is “not essential to the establishment of a passenger-common carrier relationship,” but is a
factor in determining whether such a relationship was created. Lindburg, 766 S.W.2d at 213. We also note that under section 452.0611 of the
Texas Transportation Code, a person who uses the public transportation systems “and does not possess evidence showing the appropriate fare has
been paid” may under certain circumstances commit a criminal offense. See TEX. TRANSP. CODE ANN. § 452.0611(d)-(g) (West 2013). DART
presented no evidence that Morris was traveling on the bus without paying the appropriate fare.



                                                                    –8–
negligence is negligence, and ultimately the Court makes the determination as a matter of law

whether—what standard it falls under.” Counsel also argued that “to the extent it’s required,”

plaintiff “orally amends its pleading to plead that Rickey Nelson has a high degree—owes the

plaintiff a high degree of care, and that he has to exercise it as such as a very cautious,

competent, and prudent person would do under the same or similar circumstances.” DART’s

counsel objected, noting that Morris had neither pleaded the higher standard of care nor

requested a jury issue applying it, and DART never consented to try the case “under a higher

degree of care for Mr. Nelson.” The court explained that it did “not believe . . . the plaintiff has

to plead the definition of negligence,” and “it’s up to the Court to decide what the definition of

negligence is, as with any definition, and the definitions can change depending on the particulars

of the case.” The trial court noted, however, that neither party had cited any controlling case

law. The court stated that “to the extent that it is required,” it granted the trial amendment,

finding no surprise or prejudice. It is not disputed that Morris never proffered this amendment in

writing.

          A trial amendment must be filed as a written pleading; an oral amendment at trial is

insufficient to modify the pleadings. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 73 (Tex.

2000). Although this defect may be waived by a failure to object, see id., the record reflects that

DART did object. 6 Therefore, if Morris was required to plead the standard of care, his oral trial

amendment was insufficient to do so.

          “Texas follows a ‘fair notice’ standard for pleading, in which courts assess the

sufficiency of pleadings by determining whether an opposing party can ascertain from the

pleading the nature, basic issues, and the type of evidence that might be relevant to the
     6
         Although Morris contended (and DART appeared to concede at oral argument in this Court) that no objection was made, the record
reflects objections by DART (1) at the time the oral amendment was made, (2) at the charge conference, and (3) in DART’s motion for new trial.
DART objected that the “high degree of care” standard was not pleaded; the issue was not tried by consent; and DART was “surprised” by the
inclusion of the definition in the charge.



                                                                    –9–
controversy.” Low v. Henry, 221 S.W.3d 609, 612 (Tex.2007); see also TEX. RS. CIV. P. 47(a)

(original pleading shall contain short statement of cause of action “sufficient to give fair notice

of the claim involved”); 45(b) (pleading shall consist of “statement in plain and concise language

of the plaintiff’s cause of action;” allegation not objectionable “when fair notice to the opponent

is given by the allegations as a whole”). “Rule 45 does not require that the plaintiff set out in his

pleadings the evidence upon which he relies to establish his asserted cause of action.”

Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494–95 (Tex. 1988); see also Leon

Cnty. v. Donahoe, No. 10-09-00010-CV, 2010 WL 486886, at *3 n.2 (Tex. App.—Waco Feb.

10, 2010, no pet.) (mem. op.) (no heightened pleading requirement applies to suits under Texas

Tort Claims Act).

       The purpose of the fair notice requirement is to give the opposing party information

sufficient to enable him to prepare a defense. Horizon/CMS Healthcare Corp. v. Auld, 34

S.W.3d 887, 897 (Tex. 2000). A court will look to the pleader’s intent “and the pleading will be

upheld even if some element of a cause of action has not been specifically alleged.” Roark v.

Allen, 633 S.W.2d 804, 809 (Tex. 1982) (quoting Gulf, Colo. & Santa Fe Ry. Co. v. Bliss, 368

S.W.2d 594, 599 (Tex. 1963)). DART did not specially except to Morris’s petition on the

ground that it failed to allege the applicable standard of care, and in the absence of special

exceptions, a petition will be construed liberally in favor of the pleader. Id.

       DART does not cite authority requiring that a plaintiff plead the applicable standard of

care in a negligence claim in order to meet the fair notice requirement of rule 45, and we have

found no such authority. Courts have compared the “fair notice” requirement of rule 47 to the

“fair summary” requirement for expert opinions in health care liability cases. See, e.g., Strom v.

Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 221–22 (Tex. App.—Houston [1st Dist.] 2003,

pet. denied). In Strom, the court rejected the argument that the two standards were the same,

                                                –10–
explaining that the health care liability claim “standard for making a good-faith effort to provide

a fair summary of the expert’s opinions as to the elements of standard of care, breach, and

causation is higher than the ‘fair notice’ requirement of rule 47.” Id. at 222 (emphasis added).

This is because the standard of care in a health care liability claim “is defined by what an

ordinarily prudent health-care provider or physician would have done under the same or similar

circumstances.” Id. “Whether a defendant breached the standard of care due a patient cannot be

determined without ‘specific information about what the defendant should have done

differently.’” Id. (quoting Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,

880 (Tex. 2001)). And even a “fair summary” is “something less than a full statement of the

applicable standard of care and how it was breached.” See id. (quoting Palacios, 46 S.W.3d at

880).

        Here, Morris’s operative petition gave DART fair notice of his claim. Morris first

alleged that DART’s governmental immunity was waived under the Texas Tort Claims Act

because the claim involved personal injury caused by the negligent operation or use of a motor-

driven vehicle by DART’s employee. Morris alleged that he “experienced severe personal

injuries after entering a DART bus” at a specific stop. He alleged that the driver of the bus

“unexpectedly and abruptly took off from the bus stop causing Plaintiff to lose his balance and

violently fall to the ground.” As a result of the driver’s alleged negligence, Morris “sustained

serious personal injuries and damages and required extensive medical treatment.” Morris then

pleaded that DART is a governmental unit that employed the driver to operate the bus, and at the

time of the injury, the driver was in the course and scope of his employment. Morris pleaded the

driver was negligent by “abruptly” and without warning “lunging the bus forward,” failing to

wait until Morris reached his seat, and “failing to appropriately and safely operate the DART

bus.” He pleaded that this conduct was the proximate cause of his injuries and requested

                                              –11–
damages. These allegations gave DART fair notice of Morris’s claim. TEX. R. CIV. P. 47. See

also Galveston, H. & S.A. Ry. Co. v. Gracia, 100 S.W. 198, 199 (Tex. Civ. App. 1907, writ

ref’d) (plaintiff injured in train derailment was not required to plead specific acts of negligence

that might have caused the derailment; allegation that train derailed due to railroad’s negligence

and plaintiff was injured thereby was sufficient). We conclude that in the absence of a court

order granting a special exception, Morris was not required to plead the “high degree of care”

standard applicable to a common carrier in his petition.

       DART also contends that the trial court erred by including the “high degree of care”

instruction in the jury charge where Morris did not first request it. The trial court used the

definition of “high degree of care” set forth in the Texas Pattern Jury Charges. See Comm. on

Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: General Negligence, PJC

2.2 (2010 ed.). The comment to the pattern instruction explains that “[a] high degree of care is

called for in cases involving the duty of a common carrier to its passengers.” PCJ 2.2 cmt.

(citing Dallas Ry. & Terminal Co., 78 S.W.2d at 942, and other cases). This instruction was an

accurate statement of the law, supported by the pleadings and evidence, that assisted the jury.

See Bryan, 230 S.W.3d at 508. The trial court did not err by including it in the charge. To the

extent DART’s argument is construed as asserting that it was error for the judge to include in the

charge a definition of the standard of care that had not been submitted by counsel, we disagree.

Rule 271 expressly places the burden to prepare the jury charge on the trial court. See TEX. R.

CIV. P. 271 (“trial court shall prepare and in open court deliver a written charge to the jury”).

DART cites no authority for the proposition that the trial court erred by drafting the charge and

we know of none. We resolve DART’s first issue against it.




                                              –12–
                                     Unavoidable Accident

       DART also complains that the trial court refused its proffered instruction on unavoidable

accident. The omission of an instruction is reversible error only if the omission probably caused

the rendition of an improper judgment. Shupe, 192 S.W.3d at 579. An “unavoidable accident” is

“an event not proximately caused by the negligence of any party to it.” Reinhart v. Young, 906

S.W.2d 471, 472 (Tex. 1995) (quoting Dallas Ry. & Terminal Co. v. Bailey, 250 S.W.2d 379,

385 (Tex. 1952)). “An unavoidable accident instruction is proper only when there is evidence

that the event was proximately caused by a nonhuman condition and not by the negligence of any

party to the event.” Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 803 (Tex. 1992) (citing

Yarborough v. Berner, 467 S.W.2d 188, 190–91 (Tex. 1971)). The instruction “is most often

used to inquire about the causal effect of some physical condition or circumstance such as fog,

snow, sleet, wet or slick pavement, or obstruction of view, or to resolve a case involving a very

young child who is legally incapable of negligence.” Reinhart, 906 S.W.2d at 472 (citing Hill,

849 S.W.2d at 803).

       DART argues that “the evidence about how the accident happened was conflicting

supporting a possible finding by the jury that no party was negligent in this case and thus the

accident was unavoidable.” See id. (quoting Yarborough, 467 S.W.2d at 192) (“The only

purpose of the instruction is to ensure that the jury will understand that ‘they do not necessarily

have to find that one or the other parties to the suit was to blame for the occurrence complained

of.’”). The court in Hill, however, stated that without evidence that a “nonhuman condition” was

a proximate cause, submission of an unavoidable accident instruction is “generally improper.”

See Hill, 849 S.W.2d at 803. The court explained, “[c]ourts should refrain from submitting an

unavoidable accident instruction in other circumstances due to the risk that the jury will be




                                              –13–
misled or confused by the perception that the instruction represents a separate issue distinct from

general principles of negligence.” Id.

        Here, each party offered evidence that the other was negligent, DART by its operation of

the bus, and Morris by his failure to grasp the handrails. There was no evidence of any

nonhuman condition that might have caused Morris’s fall. DART argued, and the jury could

have found, that neither party was negligent by answering “no” in both answer blanks of

Question 1 of the charge, inquiring whether the negligence, “if any,” of Nelson or Morris

proximately caused the occurrence in question. Based on the evidence, the jury found otherwise.

Because DART’s requested instruction on unavoidable accident was not reasonably necessary to

enable the jury to render a proper verdict, we conclude the trial court did not abuse its discretion

by refusing it. See TEX. R. CIV. P. 277; Shupe, 192 S.W.3d at 579. We resolve DART’s second

issue against it.

                                    EXCLUSION OF EVIDENCE

        In its third issue, DART complains of the trial court’s refusal to admit records and allow

cross-examination on a stroke suffered by Morris in 2006. DART alleges that Morris had

“residual right sided weakness and history of other problems including dizziness and problems

with his right leg, including abnormality of gait, right hemiparetic gait and right foot drop.” The

admission or exclusion of evidence is reviewed under an abuse of discretion standard. See

Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, L.L.C., 386 S.W.3d 256, 262 (Tex. 2012).

A judgment will not be reversed based on the admission or exclusion of evidence unless the

appellant establishes that (1) the trial court’s ruling was in error and (2) the error was reasonably

calculated to cause and probably did cause the rendition of an improper judgment. See McCraw

v. Maris, 828 S.W.2d 756, 757 (Tex. 1992). A successful challenge to evidentiary rulings

usually requires the complaining party to show that the judgment turns on the particular evidence

                                               –14–
excluded or admitted. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex. 1995).

When reviewing whether evidence was properly admitted or excluded, the appellate court must

review the entire record. See State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex.

2009); Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).

       DART sought to introduce Defendant’s Exhibit 27, Morris’s medical records from

Southwestern Medical Center relating to Morris’s 2006 stroke. In argument outside the jury’s

presence, DART offered the exhibit into evidence. Morris’s counsel objected on the basis of

relevance, explaining that DART was “trying to say . . . something about the stroke that my

client suffered some four years prior to the incident is somehow relevant to this, when the

testimony by his own witness was that Mr. Morris was stable and sturdy.” DART responded that

“based on what Mr. Morris testified to a little while ago, I think that door is wide open that I can

question him about things having to do with his [gait], his stability, his unsteadiness.” DART

argued that “[a]ll this is mentioned in these records.” The court asked if DART wanted to

question Morris outside the presence of the jury first. When counsel responded, “Not really. I

would like to do it in front of the jury,” the court stated, “Well, at this point that request is denied

because I don’t know what the questions are.” The court then sustained Morris’s objection to

Exhibit 27.

       After the completion of Morris’s testimony, DART made an offer of proof outside the

presence of the jury. Morris admitted that he had suffered a stroke in 2006 and received physical

therapy. He admitted that after the stroke he was “unable to walk with one foot in front of the

other for some period of time,” and that he fell more than once. He admitted to dizziness after

the stroke, but attributed it to medication. He also admitted that after the stroke, his right foot

dragged occasionally. He testified that when the accident occurred in 2010, however, his walk

was “perfectly normal,” and his foot was not dragging.

                                                 –15–
       The court asked whether there was any reference to the stroke in any other exhibit.

DART pointed to four references in Exhibits 2 and 3, the emergency and other medical records

from Morris’s fall on the bus, that mentioned the stroke, as well as one reference to “residual

right-sided weakness.” Morris’s counsel objected that DART had violated the court’s order in

limine regarding reference to the stroke, and also objected on the basis of relevance:

               MR. KELLER: Judge, it doesn’t make any difference. . . . There’s
               no evidence that he was suffering from any disease that – that he
               had any residuary effects on January 12th of 2010 when the
               incident occurred. It’s completely irrelevant. He is confusing the
               issues.

       The court then asked DART for the relevance of the evidence.              DART’s counsel

responded:

               MR. McKEEVER: Because I believe Mr. Morris had issues with
               walking, and that’s probably what caused him to fall. And I think
               the jury should be allowed to consider that evidence and decide
               whether maybe it was because he was dragging his foot and it
               caught somehow and that’s why he fell, something like that.

               THE COURT: Okay. And response?

               MR. KELLER: And his only witness that he’s had testify stated
               that he was sturdy. And if he wanted to get into this, he should
               have either got a biomechanics guy, Judge, or he should have got
               himself a doctor that was going to say that he was still suffering
               residual effects back in 2010 when the incident occurred.

               THE COURT: Well, to the extent that there’s a request to present
               this testimony to the jury, that request is denied.

       In addition to the lack of evidence connecting any residual effects of Morris’s stroke to

his fall on the bus, the record reflects that the trial court’s ruling was also based on DART’s two

violations of a limine order on the subject. In its opening statement, DART referred to the

stroke. Morris’s counsel immediately objected, and after a conference at the bench, the trial

court instructed the jury to disregard the reference. The court explained to the jury that “counsel

has violated a rule that I told about discussing certain matters in evidence. So you are to
                                               –16–
disregard any statement about the plaintiff having any stroke. That is not for you to consider in

evidence, nor will it be in this case.” Later, in its cross-examination of Morris, DART asked a

series of questions whether Morris had ever walked with a limp or had problems walking in the

past. Morris finally answered that the only time he had problems walking was “right after I had

the stroke.” Again, Morris’s counsel immediately objected to DART’s “intentional” violation of

the order in limine, and the trial court instructed the jury to “disregard any testimony at this point

about the stroke.”

       Shortly after the conclusion of trial, the court considered Morris’s motion for sanctions

against DART for violation of the limine order. The trial court noted that DART “might have

very well been successful” in its argument that Morris had “opened the door” to evidence of his

stroke by testifying that he had not walked with a limp in the past. The court stated, however,

that the limine order was in place and should have been obeyed:

               [T]his opening the door argument . . . . might have been a
               prevailing argument, but that still does not dispense with the
               necessity of having to approach and say, Well, Judge, we think the
               door’s been opened and here’s why, and if I agree, say, Okay, the
               door’s been opened, now you can do it. So do you [DART’s
               counsel] . . . have a comment as to why you thought that despite
               the belief that the door had been opened, that you didn’t have to
               come up to the Bench and request that? Because, in effect, what
               [DART’s counsel] did was he took it upon himself to make, in
               effect, an evidentiary ruling that the door had been opened and
               denied the Court the opportunity to make that ruling.

The trial court took the motion for sanctions under advisement, and the record does not reflect

any further ruling; the trial court may have concluded that exclusion of the evidence was

sufficient. See Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37, 44 (Tex. App.—San Antonio

2006, no pet.) (opinion on rehearing) (imposition of sanctions for violation of order in limine is

left to sound discretion of trial court, and appellate court will not reverse trial court’s decision

absent clear abuse of discretion).

                                                –17–
       We conclude that DART has not established that exclusion of the evidence was error, or

that the error probably caused an improper judgment. See McCraw, 828 S.W.2d at 757. After

reviewing the entire record, we conclude that the trial court’s judgment does not turn on the

excluded evidence. See City of Brownsville, 897 S.W.2d at 753–54; Cent. Expressway Sign

Assocs., 302 S.W.3d at 870. As Morris points out, there is no evidence that he was suffering any

residual effects from the stroke on the day he fell or in the months preceding it. Medical records

from Morris’s fall on the bus that were admitted into evidence did include references to a stroke

in Morris’s medical history, but none of these records indicated that problems resulting from the

stroke were a possible cause of the fall. DART points to no specific evidence in the excluded

exhibit that would tend to prove otherwise, and its offer of proof did not include any such

evidence. The excluded exhibit appears to consist primarily of medical records from 2006. The

jury’s verdict and the trial court’s judgment turn on the parties’ negligence, or lack of

negligence, in 2010. The jury found both Nelson and Morris to have been negligent, and the trial

court rendered judgment in accordance with the verdict. We conclude the trial court did not

abuse its discretion by excluding evidence relating to Morris’s 2006 stroke. See Enbridge

Pipelines, 386 S.W.3d at 262. We resolve DART’s third issue against it.

                                       JURY ARGUMENT

       In its fourth issue, DART complains that Morris’s counsel made improper and incurable

jury arguments. DART does not point to a specific reference in the closing argument or provide

a quote it contends was improper. DART generally argues that “counsel for Appellee persisted

in attacks on Appellant itself, instead of confining the argument to the evidence.” DART argues

that “these attacks included attempting to appeal to the passion or prejudice of the jury” by

(1) urging the jury to send a message to DART; (2) accusing DART of a “cover up,” contrary to

the “true facts of the case,” and (3) asking the jury to punish DART with an award of one million

                                              –18–
dollars in damages. DART complains that the trial court did not intervene, and any objections

DART made were overruled.

          DART’s complaint on appeal is broader than its objections at trial. 7                                       However, a

complaint of incurable jury argument may be asserted and preserved in a motion for new trial

even without an objection and ruling at trial. Nguyen v. Myers, No. 05-11-01510-CV, 2013 WL

1277838, at *7 (Tex. App.—Dallas Feb. 14, 2013, no pet.). In its motion for new trial, DART

made essentially the same complaint it makes now on appeal.

          Incurable jury arguments are rare and generally encompass “arguments that strike at the

courts’ impartiality, equality, and fairness” because they “inflict damage beyond the parties and

the individual case under consideration if not corrected.” See Living Ctrs. of Tex., Inc. v.

Penalver, 256 S.W.3d 678, 681 (Tex. 2008) (per curiam). Instances of incurable jury argument

include (1) appeals to racial prejudice, (2) unsupported, extreme, and personal attacks on

opposing parties and witnesses, and (3) “accusing the opposing party of manipulating a witness,

without evidence of witness tampering.ˮ Id.; see also Standard Fire Ins. Co. v. Reese, 584

S.W.2d 835, 840 (Tex. 1979); Tex. Emp’rs Ins. Ass’n v. Haywood, 266 S.W.2d 856, 858 (Tex.

1954)); and PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 721 (Tex. App.—

Dallas 2011, pet. denied).

          To prevail on an incurable jury argument complaint, the complaining party on appeal

generally must show the argument by its nature, degree, and extent constituted such error that an

instruction from the court or retraction of the argument could not remove its effects. See Living

Ctrs. of Tex., Inc., 256 S.W.3d at 680–81. This requires a showing based on the entire record




     7
       DART made two objections at trial. First, DART objected that asking the jury “to be the conscience of the community is improper.”
Second, DART objected to “improper argument” during Morris’s rebuttal argument. The trial court overruled both objections.



                                                                –19–
that the probability the improper argument caused harm is greater than the probability the verdict

was grounded on the proper proceedings and evidence. See Reese, 584 S.W.2d at 840.

       DART has not shown “the probability that the improper argument caused harm is greater

than the probability that the verdict was grounded on the proper proceedings and evidence.”

Reese, 584 S.W.2d at 840; Nguyen, 2013 WL 1277838, at *6–7. There was evidence that the

DART driver did not follow DART’s safety procedures and that Morris’s fall was caused by the

driver’s failure to wait until Morris had crossed the yellow line or been seated before the bus

began to move. There was evidence supporting the amounts awarded by the jury for past

medical expenses and past loss of earning capacity. The jury attributed some responsibility to

Morris for his injuries. The record reflects that the jury’s verdict was “grounded on the proper

proceedings and evidence.” Reese, 584 S.W.2d at 840. The argument DART complains of was

not one of those “rare” instances that is so inflammatory as to be incurable. See Cottman

Transmission Sys,. L.L.C. v. FVLR Enters., L.L.C., 295 S.W.3d 372, 380 (Tex. App.—Dallas

2009, pet. denied). After a review of the entire record, we conclude DART has not shown that

“the argument by its nature, degree and extent constituted reversible harmful error.” Mitchell v.

Bank of Am., N.A., 156 S.W.3d 622, 629 (Tex. App.—Dallas 2004, pet. denied). We resolve

DART’s fourth issue against it.

                                          CONCLUSION

       We overrule DART’s four issues. We affirm the trial court’s judgment.




                                                   /Robert M. Fillmore/
                                                   ROBERT M. FILLMORE
                                                   JUSTICE

121133F.P05

                                              –20–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

DALLAS AREA RAPID TRANSIT,                            On Appeal from the 193rd Judicial District
Appellant                                             Court, Dallas County, Texas
                                                      Trial Court Cause No. DC-11-07709.
No. 05-12-01133-CV        V.                          Opinion delivered by Justice Fillmore,
                                                      Justices FitzGerald and Evans participating.
DAVID MORRIS, Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee David Morris recover his costs of this appeal from
appellant Dallas Area Rapid Transit.


Judgment entered this 29th day of May, 2014.




                                                  /Robert M. Fillmore/
                                                  ROBERT M. FILLMORE
                                                  JUSTICE




                                               –21–
