Affirmed and Opinion filed August 29, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00789-CV

  DANIEL PLASENCIA D/B/A FT. BEND COLLISION AUTO REPAIR,
                          Appellant

                                        V.

JOHN BURTON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF JOHN EDWARD BURTON, A MINOR DECEASED, Appellee

                   On Appeal from the 268th District Court
                           Fort Bend County, Texas
                    Trial Court Cause No. 09-DCV-171816

                                 OPINION

      After a bench trial, the trial court found appellant Daniel Plasencia d/b/a Ft.
Bend Collision Auto Repair (“Plasencia”) liable for the wrongful death of John
Edward Burton and awarded $100,000 in actual damages to appellee John Burton,
individually and as representative of the estate of John Edward Burton, a minor
deceased (“Burton”). We affirm.
                                 BACKGROUND

      On March 5, 2008, Burton brought his wife and two children to Plasencia’s
scrap yard. Burton was there to haul scrap metal away. Plasencia took Burton’s
children — John Edward, who was two years old, and Nicole, who was four — to
one of the offices on the premises and left them there to play while Plasencia and
Burton loaded scrap metal onto a trailer and Burton’s wife painted another office.
Sometime that evening, a Burton heard a loud noise, and he jumped off the trailer
and ran to the room where his children were playing. He arrived to find John
Edward dead, with his “brain on the floor” next to a shotgun. Plasencia had failed
to inform Burton or his wife that he kept a loaded shotgun in that office.

      Burton sued Plasencia for the wrongful death of John Edward, seeking $1
million in actual damages. Just before the trial began, Plasencia filed a motion for
continuance that the trial court denied.      After a bench trial, the trial court
concluded that Plasencia was liable and awarded Burton $100,000 “in actual
damages, for mental anguish, loss of companionship and loss of society.”
Plasencia requested findings of fact and conclusions of law and filed a “Motion for
New Trial and Motion to Modify, Correct or Reform the Judgment,” arguing that
(1) “The Record is Devoid of Legally and Factually Sufficient Evidence to Support
the Judgment;” (2) “There was No Evidentiary Support for the Damages Award;”
(3) “The Damages are Excessive;” (4) “Defendant’s Motion for Continuance
should have been granted;” (5) “The ‘Final’ Order is Not Final because it does not
dispose of all parties and if no new trial is granted, the judgment should be
modified, corrected or reformed;” and (6) “The proper remedy is a new trial.” The
trial court signed findings of fact and conclusions of law on August 31, 2012. This
appeal followed.

      In two issues on appeal, Plasencia argues that the evidence is both legally

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and factually insufficient to support the trial court’s (1) liability finding, and (2)
damages award.

                                    ANALYSIS

      Legal insufficiency challenges may be sustained only when the record
discloses one of the following situations: (a) a complete absence of evidence of a
vital fact; (b) the court is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact; (c) the evidence offered to prove
a vital fact is no more than a mere scintilla; or (d) the evidence establishes
conclusively the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802,
810 (Tex. 2005) (citing Robert W. Calvert, “No Evidence” and “Insufficient
Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)).

      We must consider evidence in the light most favorable to the verdict and
indulge every reasonable inference that would support it. City of Keller, 168
S.W.3d at 822. If the evidence allows only one inference, neither the factfinder
nor the reviewing court may disregard that evidence. Id. “[T]he traditional scope
of review does not disregard contrary evidence in every no evidence review if there
is no favorable evidence (situation (a) above), or if contrary evidence renders
supporting evidence incompetent (situation (b) above) or conclusively establishes
the opposite (situation (d) above).” Id. at 810-11. If the evidence at trial would
enable reasonable and fair-minded people to differ in their conclusions, then the
factfinder must be allowed to do so. Id. at 822. Accordingly, the ultimate test for
legal sufficiency always must focus on whether the evidence would enable
reasonable and fair-minded people to reach the verdict under review. Id. at 827.
Legal sufficiency review in the proper light must credit favorable evidence if
reasonable people could do so, and must disregard contrary evidence unless
reasonable people could not do so. Id. The reviewing court cannot substitute its

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judgment for that of the trier of fact if the evidence falls within this zone of
reasonable disagreement. Id. at 822. A trial court’s findings are reviewable for
legal sufficiency of the evidence by the same standards that are applied in
reviewing evidence supporting a jury’s answer. Catalina v. Blasdel, 881 S.W.2d
295, 297 (Tex. 1994).

      In reviewing factual sufficiency, we must consider and weigh all the
evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003). We can set aside a verdict only if the evidence is so weak or if the finding
is so against the great weight and preponderance of the evidence that it is clearly
wrong and manifestly unjust. Id. As with legal sufficiency, a trial court’s findings
are reviewable for factual sufficiency of the evidence by the same standards that
are applied in reviewing evidence supporting a jury’s answer.        Catalina, 881
S.W.2d at 297.

I.    Liability

      Plasencia argues that the evidence was insufficient to support the trial
court’s finding of liability because (1) “[n]o evidence was presented that appellant
had a legal duty of care to appellee’s child,” and (2) “it is the parent who has the
duty to supervise the minor child.”

      A.    Premises Liability

      The Texas Wrongful Death Statute provides that “[a] person is liable for
damages arising from an injury that causes an individual’s death if the injury was
caused by the person’s or his agent’s or servant’s wrongful act, neglect,
carelessness, unskillfulness, or default.” Tex. Civ. Prac. & Rem. Code Ann. §
71.002(b) (Vernon 2008). Plasencia’s conduct in placing a two-year-old and a
four-year-old in a room in which a loaded shotgun was within their reach, and in


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failing to inform Burton or his family members of the loaded shotgun’s presence in
the room where the children were playing, was the basis of Burton’s pleadings and
the trial court’s judgment. Therefore, we are presented with a question of premises
liability.

       Premises liability is a special form of negligence in which the premises
owner’s duty generally is determined by the plaintiff’s status as an invitee,
licensee, or trespasser.   Taylor v. Louis, 349 S.W.3d 729, 734 (Tex. App.—
Houston [14th Dist.] 2011, no pet.); see W. Invs., Inc. v. Urena, 162 S.W.3d 547,
550 (Tex. 2005). An invitee enters land with the owner’s knowledge and for the
mutual benefit of both. Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901,
909 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Am. Indus. Life Ins.
Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied)). A licensee enters and remains on land with the owner’s consent and
for the licensee’s own convenience, on business with someone other than the
owner. Mayer, 278 S.W.3d at 910. A trespasser enters another’s property without
lawful authority, permission, or invitation. Id.

       If a person is an invitee, the property owner has a duty to use reasonable care
to protect that person from known conditions that create an unreasonable risk of
harm and conditions that should be discovered by the exercise of reasonable care.
Id. If a person is a licensee, the property owner has a duty to refrain from injuring
that person willfully, wantonly, or through gross negligence; further, the owner
who has actual knowledge of a dangerous condition unknown to the licensee has a
duty to warn the licensee or make safe the dangerous condition. Id. If a person is
a trespasser, the property owner has a duty not to cause injury willfully, wantonly,
or through gross negligence. Id.

       As the owner of the scrap yard, Plasencia owed a duty of care to Burton and

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his family; the scope of that duty was determined by the family members’ status as
invitees, licensees, or trespassers. See id. It is undisputed that Burton’s family had
permission to be at Plasencia’s scrap yard; none of the family members were
trespassers.    We need not determine whether John Edward was an invitee or
licensee, however, if (1) Plasencia failed to warn the Burtons, and (2) the loaded
shotgun was a dangerous condition that posed an unreasonable risk of harm. See
Jenkins v. Occidental Chem. Corp., No. 01-09-01140-CV, __ S.W.3d __, 2013 WL
3354002, at *18 (Tex. App.—Houston [1st Dist.] July 2, 2013, no pet. h.) (“[T]he
law imposes a duty on a premises owner or operator to take action to make the
premises reasonably safe or to warn invitees and licensees of an unreasonable
danger.”).

               1.   Failure to Warn

      Burton testified that he was unaware of any guns being present in the scrap
yard when he allowed Plasencia to take his children into one of the offices on the
premises. Plasencia’s testimony demonstrated that he knew about the presence of
the loaded shotgun in the office where he placed the children and that he did not
remember to tell the Burtons about it:

      And I do — and I do — I did kept a shotgun. I don’t — I don’t
      remember it being loaded, but it was always facing down; the barrel
      was facing down against the wall behind a cabinet. It was hidden. It
      was out of sight. It was not over there accessible for anybody to see.

      And during this whole time, I forgot completely, forgot completely,
      completely. It was not on my main office. It’s what I call my lunch
      area. And that I keep for safety for my employees because previously
      we were robbed before.

When Burton’s attorney asked if Plasencia knew the gun was loaded, Plasencia
answered, “That, I don’t — That, I don’t remember, but apparently probably so,

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yes, sir.”

       We conclude that the evidence is legally and factually sufficient to support
the finding that Burton did not know about the shotgun, but that Plasencia did and
failed to warn Burton about it. City of Keller, 168 S.W.3d at 822; Golden Eagle
Archery, 116 S.W.3d at 761.

             2.     Unreasonable Risk of Harm

       A condition poses an unreasonable risk of harm for premises defect purposes
when 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.” Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 29 (Tex. App.—
Tyler 2003, pet. denied) (quoting Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556
(Tex. 2002). Foreseeability does not require that the exact sequence of events that
produced an injury be foreseeable. Plainview Motels, 127 S.W.3d at 29. Instead,
only the general danger must be foreseeable. Id.

       An unreasonable risk of harm can be created by seemingly innocuous items;
in Plainview Motels, the risk arose from a warehouse store’s mirror display:

       Surplus Sales’s display consisted of multiple mirrors stacked
       vertically, one against the other and leaning at a slight angle against a
       two-by-four support post. Although the total number of mirrors was
       unclear, their combined weight was significant, which is apparent
       from the fact that it was sufficient to trap an adult male and,
       ultimately, required the strength of between three and four adults to be
       removed. The nature of Surplus Sales’s business is that customers
       will view items in one of Surplus Sales’s warehouses, help themselves
       to such items as they may desire, and transport such items to the
       checkout area of the facility.

                      *                   *                   *

       The jury could reasonably determine that a group of thirty-pound

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      mirrors leaning against a support column could potentially fall.
      Moreover, given the nature of Surplus Sales’s business, it is a
      reasonable deduction from the evidence that, no matter how stable the
      stack is, a customer desiring a mirror deep within the stack could seek
      to move some of the mirrors around to look at others or remove a
      mirror that strikes his fancy.

Id. at 29-30 (footnotes omitted).

      Moreover, though the same degree of care is owed to both adults and
children, different precautions must be taken for children because they “have a
tendency to indulge in childish impulses to play and climb.” Wal-Mart Stores, Inc.
v. Lerma, 749 S.W.2d 572, 575 (Tex. App.—Corpus Christi 1988, no writ). In
Lerma, a three-year-old girl was injured by a clothing rack that fell on her after she
swung from it. Id. at 573-74. After noting that Wal-Mart employees knew that the
height of the rack could be raised beyond the reach of a small child, the court
reasoned that “[a] trier of fact could have found that a clothing rack, though not
normally dangerous, presented an unreasonable risk of harm to children when it
was adjusted at a height where a mere three-year-old could reach up and swing
from it.” Id. at 576.

      Plasencia does not dispute that placing a two-year-old and a four-year-old in
a room with an unsecured, loaded shotgun within their reach creates an
unreasonable risk of danger. Cf. Kennedy v. Baird, 682 S.W.2d 377, 378-79 (Tex.
App.—El Paso 1984, no writ) (considering liability for negligent entrustment of a
firearm). A loaded shotgun left within the reach of a two-year-old and a four-year-
old presents at least as much risk of harm as a mirror display or a clothing rack.
Cf. Tex. Penal Code Ann. § 1.07(17)(A) (Vernon Supp. 2012) (defining a firearm
as a deadly weapon). We conclude that the evidence is legally and factually
sufficient to support the finding that the presence of a loaded shotgun left within
the reach of a two-year-old and a four-year-old created an unreasonable risk of
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harm. City of Keller, 168 S.W.3d at 822; Golden Eagle Archery, 116 S.W.3d at
761. Accordingly, Plasencia breached the duty he owed the Burtons as either
invitees or licensees. See Jenkins, 2013 WL 3354002, at *18.

      B.     Parental Liability

      The Texas Family Code provides that “[a] parent of a child has . . . the duty
of care, control, protection, and reasonable discipline of the child.” Tex. Fam.
Code Ann. § 151.001(a)(2) (Vernon 2008). Plasencia argues that the death of John
Edward was a dire consequence of the Burtons’ breach of their parental duty, and
that “dire consequences do not justify an improper shift of the duty of care to
[Plasencia].” Plasencia offered no evidence in support of this theory in the trial
court and cites to a single case for support in his appellate briefing: McCullough v.
Godwin, 214 S.W.3d 793 (Tex. App.—Tyler 2007, no pet.).              McCullough is
distinguishable because it is an ordinary negligence case, not a premises liability
case, and it dealt with fundamentally different facts.

      In McCullough, a father took his minor son swimming on a lake with a
group that included several adults and several children. Id. at 798. The father and
son traveled to the swimming spot on two separate boats; the son traveled on a boat
operated by Brandon and Shellie Stairs, who provided the son with a life preserver.
Id. When both boats arrived at the swimming spot, the father removed his son
from the Stairses’ boat and took off his son’s life preserver. Id. The father visited
with other adults, listened to music, and consumed alcoholic beverages while the
children played. Id. At one point, the father told the son to stop playing a game in
which he hid under an inner tube owned by the Stairses because the father could
not see him. Id. at 798-99. About an hour after the son had last been seen by
anyone, Shellie Stairs found his body beneath the surface of the water. Id. at 799.
The son was put on life support but eventually died. Id.

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      To support his argument that the Burtons breached their parental duty to
protect John Edward, Plasencia quotes a passage from McCullough in which the
court considered whether the duty of care, control, and protection of the son should
be imposed on the father or on the Stairses:

      [A] parent’s right to care, custody, and management of his child is
      constitutional in nature and considered a precious fundamental liberty
      interest. Indeed, a parent’s duty to supervise his child is significant,
      and a breach of such a duty can undoubtedly have dire consequences.
      However, the law does not favor shifting this statutorily imposed
      responsibility from the parent absent unique circumstances not present
      in the case at hand.

Id. at 808 (citations omitted). The court went on to consider whether the father or
the Stairses had superior knowledge of the risk and to conclude that the father had
knowledge of all risks involved with the son’s water play. Id. Ultimately, the
court held that the Stairses did not owe the child a legal duty. Id. at 809.

      Plasencia argues that the Burtons should have known that a scrap yard is
generally not a safe place, but he does not argue that the Burtons had any
knowledge of the loaded shotgun. Unlike the Stairses, Plascencia owned the
premises where the child was playing and thus owed the duties described above.
Further, while the Stairses actively attempted to keep the son safe by supplying
him with a life preserver, Plasencia did nothing to minimize the danger posed by
the loaded shotgun or to warn of its presence. Accordingly, the evidence supports
the trial court’s determination that a duty existed and was breached by Plasencia.
Plasencia did not plead the Burtons’ alleged negligence as a defense; nor did he
request findings on the Burtons’ negligence or proportionate responsibility. Thus,
the Burtons’ alleged negligence cannot excuse Plasencia from liability.

      In summary, Plasencia knew the Burtons’ children were playing
unsupervised in an office in which he had placed them, and he kept a loaded and
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unsecured shotgun in the office in which the children were playing. Plasencia
neither warned the Burtons about the shotgun nor removed the shotgun while the
children were playing. Viewing the evidence in the light most favorable to the
factfinders determination, we conclude that reasonable and fair-minded people
could reach the conclusion that the death of John Edward resulted from a breach of
the duty of care owed by Plasencia, and we cannot conclude that the liability
finding is so against the great weight and preponderance of the evidence so that it
is manifestly unjust.

      Therefore, the evidence is legally and factually sufficient to support the
liability finding. City of Keller, 168 S.W.3d at 822; Golden Eagle Archery, 116
S.W.3d at 761.

      We overrule Plasencia’s first issue.

II.   Damages

      In his second issue, Plasencia argues that “[t]here was no evidence in the
record at all to support any damage award[,] and the judgment should be set aside
and a new judgment entered in favor of [Plasencia], or a new trial granted.”

      In its final order, the trial court awarded Burton $100,000 “in actual
damages, for mental anguish, loss of companionship and loss of society.”
Plasencia correctly notes that Burton did not specifically plead loss of
companionship or loss of society.1 Burton also did not submit any evidence about
the relationship he had with his son that could support an award of damages for
loss of companionship or society; this appeared to be a conscious strategy. At trial,
the following exchange occurred between the court and Burton’s trial counsel,
John Ezell:
      1
         In his original petition, Burton alleged that he had “sustained damages, loss of
consortium, grief and mental anguish” as a result of John Edward’s death.

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      THE COURT: Counsel, what am I to base that $1 million [in
      requested damages] on? I have no evidence as to monetary damages.
      We have no — you have put on no medical costs, put on no — and
      obviously, with a 2-year-old, you’re not going to be able to put on lost
      wages or future wages. What am I to base a million dollars on?
      There’s no malice in this case, so exemplaries don’t apply. What am I
      to base a judgment on, a damage judgment on?

      MR. EZELL: On the loss of a child, sir. On the loss of a child.

                     *                   *                  *

      MR. EZELL: Judge, we have presented to the Court the loss that the
      father suffered and the losses to him. Those are the — that is the
      evidence. It’s the only evidence that we have, Judge.

Based on the evidence submitted to the trial court, we focus our analysis on mental
anguish damages.

      In wrongful death cases, mental anguish is the emotional pain, torment, and
suffering that the plaintiff would, in reasonable probability, experience from the
death of a family member. Moore v. Lillebo, 722 S.W.2d 683, 688 (Tex. 1986).
Damages for mental anguish are intended to compensate the beneficiary for the
deleterious effect that the wrongful death had on the beneficiary. See id.; Thomas
v. Uzoka, 290 S.W.3d 437, 455-56 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied). To recover mental anguish, a claimant must demonstrate a high degree of
mental suffering beyond disappointment, anger, resentment, or embarrassment,
although mental anguish may include all of these emotions. Thomas, 290 S.W.3d
at 455. Thus, proof of mental anguish can include painful emotions such as grief,
severe disappointment, indignation, wounded pride, shame, despair, public
humiliation, or a combination of any or all of those feelings. Id. As compared
with loss of companionship and society, which emphasizes the removal of positive
benefits that the beneficiary once enjoyed but which were taken away by the

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wrongful death, mental anguish focuses on the negative impact of the wrongful
death on the beneficiary. Id. at 455-56.

      For mental anguish claims arising out of the wrongful death of a plaintiff’s
child, the supreme court has noted the reasoning of the United States Court of
Appeals for the Eighth Circuit while interpreting Arkansas law:

      [w]e do not think that Arkansas law requires that parents of a
      deceased child necessarily make a public exhibition of their grief
      before or during trial. . . . We are not convinced that mental anguish
      necessarily manifests itself objectively to the world, nor do grief
      stricken parents need to offer evidence of physical symptoms such as
      sleeplessness, weight loss, nervousness, personality changes, and the
      like. Mental anguish represents a deep inner feeling of pain and hurt
      often borne in silence. We are satisfied from our reading of the
      Arkansas cases that parents, such as the Connells, are entitled to have
      the issue of mental anguish submitted to the jury on the basis of the
      emotional impact suggested by the circumstances surrounding their
      loss. We are convinced that assessment of the resulting grief is a task
      for which juries have traditionally been considered well-suited, and in
      which they can properly be expected to draw upon their own
      experience and empathy.

Moore, 722 S.W.2d at 686 (quoting Connell v. Steel Haulers, Inc., 455 F.2d 688,
691 (8th Cir. 1972)).

      However, evidence of the existence of compensable mental anguish is not
enough; there must also be some evidence to justify the amount awarded. Saenz v.
Fid. Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).           While the
impossibility of any exact evaluation of mental anguish requires that factfinders be
given a measure of discretion in finding damages, that discretion is limited. Id.
Factfinders cannot simply pick a number. Id. They must find an amount that, in
the standard language of the jury charge, “would fairly and reasonably
compensate” for the loss. Id.

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      In Thomas, this court considered the sufficiency of the evidence to support
damages awarded in a wrongful death suit filed by the wife (“Ugochi”) of a taxi
cab driver (“Chris”). Thomas, 290 S.W.3d at 455-56. The jury had awarded the
wife $100,000 for past mental anguish and $50,000 for future mental anguish, as
well as awards totaling $550,000 for past and future loss of companionship and
society. Id. We concluded:

      The jury was presented with adequate evidence of the mental anguish
      and loss of companionship and society that Ugochi suffered because
      of her husband’s death. The jury had the benefit of observing Ugochi
      as she testified at some length about the relationship she shared with
      Chris and the impact of his death on her. Among other things, she
      testified that they had made plans for the future. Ugochi intended to
      return to Houston after graduation and move into a “good apartment”
      with Chris. She had plans to follow through with a formal wedding
      ceremony inasmuch as they were initially married in an informal
      occasion at the courthouse. They also planned to have at least two,
      and possibly as many as four, children together.

Id. at 456.

      Here, Burton did not testify about his relationship with John Edward, and he
did not testify about any future plans he had made with his son. Any such
testimony would have related to the removal of the positive aspects of their
relationship — that is, Burton’s loss of companionship and society. See id. at 455-
56. Burton did testify to the grisly details of discovering John Edward’s body,
however; he testified that, after hearing the gunshot, “I jumped off the trailer, went
to the office, and I seen my son’s brain on the floor. . . . I seen the shotgun on the
floor as I picked up my son and took him out.” The trial court had the opportunity
to observe Burton and assess his emotional demeanor during his testimony; this
afforded some insight into the mental anguish Burton had suffered. See id.

      In Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983), the supreme court

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rejected the pecuniary loss rule as the measure of damages for the death of a child
because “[t]he real loss sustained by a parent is not the loss of any financial benefit
to be gained from the child, but is the loss of love, advice, comfort,
companionship, and society.” Id. at 251. “The destruction of the parent-child
relationship results in mental anguish, and it would be unrealistic to separate injury
to the familial relationship from the emotional injury.” Id. at 253. The Sanchez
court upheld a jury award of $102,500 for mental anguish to the mother of a child
killed in a collision with a pick-up truck. Id. at 250. The mother was not present
when the collision occurred, but after her son was rushed to a hospital for medical
treatment, she “caught glimpses of his bloody legs” through a hospital doorway.
Id.

      Viewing the evidence in the light most favorable to the verdict, we conclude
that reasonable and fair-minded people could conclude that $100,000 would fairly
and reasonably compensate Burton for the damages he suffered as a result of John
Edward’s death, and we cannot conclude that the award is so against the great
weight and preponderance of the evidence so that it is manifestly unjust.

      Therefore, the evidence is legally and factually sufficient to support the
damages award. City of Keller, 168 S.W.3d at 822; Golden Eagle Archery, 116
S.W.3d at 761.

      We overrule Plasencia’s second issue.




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                                CONCLUSION

      Having overruled both of Plasencia’s issues in this appeal, we affirm the
judgment of the trial court.




                                     /s/    William J. Boyce
                                            Justice



Panel consists of Justices Boyce, Jamison, and Busby.




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