
 
 



NUMBER 13-08-00385-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 
 
ELIDA LOPEZ OLIVER,	  					          Appellant,
 
v. 

LONG ISLAND OWNERS ASSOCIATION, INC.,	  		  Appellee.
 

On appeal from the 357th District Court 
of Cameron County, Texas.

 

MEMORANDUM OPINION


Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Vela


	This is an appeal from a jury verdict in favor of appellee Long Island Owners
Association (the association) and against appellant Elida Lopez Oliver (Oliver).  On appeal,
Oliver raises two issues.  First, she urges that the jury's finding that she was not an invitee
of Long Island was against the great weight and preponderance of the evidence or was
conclusively established as a matter of law in her favor.  Second, Oliver urges that the trial
court abused its discretion in refusing to grant her challenges for cause to two
venirepersons who stated it would be difficult to award the damages she was seeking.  We
affirm.
I.  Background
	Oliver was a resident of Long Island, an island residential community in Cameron
County.  She filed suit against the association urging that she was injured as she rode her
bicycle on Garcia Street toward the Long Island swing bridge that connects Long Island
with the Texas mainland.  The bridge is the only means of access to Long Island, other
than by boat.  According to Oliver, she was riding her bicycle toward the bridge when the
mechanical arm located south of the bridge was lowered onto her, knocking her to the
street and causing her serious injury.  There were no eyewitnesses to the accident.  Oliver
testified that she told Claudio Hernandez, the gate operator, what had happened. 
Hernandez  testified that Oliver told him that she had run into the gate with her bicycle. 
There was conflicting testimony offered by both parties regarding Oliver's medical
condition.  Because of the jury's findings on the liability issues, that testimony is
unnecessary to the issues we address, so we will not recount it here.  See Tex. R. App. P.
47.1.  
	A board of directors, selected by the association, is in charge of operating the
bridge, maintaining it, and paying expenses for the bridge.  The association has owned the
bridge since 1989.  The road and the bridge are considered private property.  The bridge
is opened every hour on the hour to boat traffic and, at additional times, when requested
by the Coast Guard.  Any member of the public may use the bridge.  However, Long Island
residents pay a $32.00 monthly bridge fee which is used by the board as revenue to
operate the bridge for those landowners.   Margaret Hunnicutt, a board member in 2004
when this accident happened, testified that the monthly bridge fee "would be combined into
their condo fee.  They may not even know it, but they do.  I'm not sure."  She was called
immediately after the incident made the basis of the suit and suggested that Oliver go the
hospital by ambulance.  Hunnicutt agreed that on the date in question Oliver had every
right to use the bridge and expect that it had been safely maintained.  She further testified
that the bridge was properly maintained. 
	After a lengthy trial, the jury returned a verdict in favor of the association.  Question
number 1 asked the jury to decide if the bridge arm was coming down at the time it came
into contact with Elida Oliver.  The jury answered "no" to that question, thereby rejecting
Oliver's version of the events.  The only other question the jury decided was question
number 4, which inquired:
		On the occasion in question, was Elida Oliver an invitee on that part
of Long Island's premises under consideration?

	An "invitee" is a person who is on the premises at the express or implied
invitation of the possessor of the premises and who has entered thereon
either as a member of the public for a purpose for which the premises are
held open to the public or for a purpose connected with the business of the
possessor that does or may result in their mutual economic benefit.  

The jury answered "no " to this question as well.  Because all of the additional questions
were predicated upon affirmative answers to questions 1 and 4, the jury did not reach the
causation or damage questions.  The trial court entered a take-nothing judgment in favor
of the association.  Oliver filed a timely motion for new trial that was overruled by written
order.

 	                  II.  Evidentiary Standard of Review
	Oliver argues by her first issue that she is entitled to a new trial because the jury's
finding that she was not an invitee was either contrary to the weight of the evidence or
conclusively established in her favor.  With respect to legal sufficiency, we must credit
favorable evidence if reasonable jurors could and disregard contrary evidence unless
reasonable jurors could not.  City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005);
Villagomez v. Rockwood Specialties, Inc., 210 S.W.3d 720, 748 (Tex. App.-Corpus Christi
2006, pet. denied).  We will not substitute our judgment for that of the fact finder if the
evidence falls within the zone of reasonable disagreement.  Keller, 168 S.W.3d at 822. 
With respect to factual sufficiency, we must first examine the record to determine if there
is some evidence to support the finding; if so, then we must determine whether the failure
to find is so contrary to the overwhelming weight of the evidence as to be clearly wrong or
manifestly unjust. Cain v. Bain,709 S.W.2d 175, 176 (Tex. 1986); Marrs & Smith P'ship v.
D. K. Boyd Oil & Gas Co., Inc., 223 S.W.3d 1, 14 (Tex. App.-El Paso 2005, pet. denied).
III. Analysis
A.  Status as an Invitee
	The duty a landowner owes to someone injured on the landowner's property
depends on the injured party's legal status as an invitee or a licensee.  Motel 6 G.P., Inc.
v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996); Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156,
161 (Tex. App.-Waco 1995, no writ).  A landowner owes an invitee the duty to use ordinary
care to protect the invitee from not only risks of which the owner is actually aware, but also
from risks of which the owner should be aware after reasonable inspection.  Lopez, 929
S.W.2d at 3.  In other words, a landowner must use reasonable care to reduce or eliminate
unreasonably dangerous conditions of which he is aware, or reasonably should be, aware. 
Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); State Dep't of
Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).  
	On the other hand, a landowner owes a licensee a duty not to injure by willful,
wanton, or grossly negligent conduct and to protect the licensee from those dangers of
which the owner is actually aware.  Payne, 838 S.W.2d at 237.  Thus, a licensee must
establish that the landowner actually knew of the dangerous condition, whereas an invitee
need only establish that the landowner knew or should have known of the dangerous
condition.  Id.
	An invitee usually is defined as someone who enters onto property with the owner's
knowledge and for the mutual benefit of both parties.  See Rosas v. Buddies Food Store,
518 S.W.2d 534, 536 (Tex. 1975).  An invitee has also been defined somewhat more
broadly as someone who enters another's property on business or for the benefit of the
landowner.  See Cowart v. Meeks, 111 S.W.2d 1105, 1107 (Tex. 1938).  If an individual
is on the land for his own convenience or on business for someone other than the owner,
then she is a licensee.  Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 910 (Tex.
App.-Houston [14th Dist.] 2009, no pet.); Weaver v. KFC Mgmt. Inc., 750 S.W.2d 24, 26
(Tex. App.-Dallas1988, writ denied).
	 There was evidence that Oliver was on a leisurely bicycle ride at the time this
accident occurred.  There is nothing in the record to suggest that she entered the property
in question to benefit the association in any way.  Because there was no evidence that she
entered the property for a purpose connected with the business of the owner, that did or
may have resulted in their mutual economic benefit, the jury could have properly
determined, as a fact issue, that she was not an invitee.  While there was evidence that,
as an association member, she paid monthly to use the bridge, there was ample evidence
that she was on the bridge for her own purposes and not to benefit the association in any
way.  
	Regardless, we believe that the jury's answer to question number one would bar
recovery irrespective of the way the jury answered question number 4.  Oliver's theory of
the case was that the arm of the swing bridge hit her on top of the head as it was coming
down.  The jury was asked if the arm was coming down "at the time it came into contact
with Elida Oliver."  The jury obviously believed that the accident did not happen as Oliver
testified.  So, even assuming that Oliver was an invitee, she would not be able to recover
because the jury did not agree that the arm of the bridge was moving when the accident
occurred.  If the alleged defect that Oliver attempted to establish was that the bridge arm
came down too quickly or that the warnings were inadequate, any alleged defect would not
have caused the injury in question because the jury did not believe the accident happened
as Oliver testified.  We overrule issue one.
B.  Peremptory Challenges
	By her second issue, Oliver argues that the trial court abused its discretion by
refusing to grant her challenges for cause regarding two of the venirepersons.  As a result,
Oliver claims she was forced to use her peremptory challenge on those individuals and
thus had to accept otherwise objectionable jurors. 

	A trial court's refusal to strike a prospective juror for cause is reviewed under an
abuse of discretion standard.  Cortez v. HCCI- San Antonio, Inc., 159 S.W.3d 87, 93 (Tex.
2005).  To disqualify a potential juror, it must appear that the state of mind of the juror led
to the natural inference that he or she will not act with impartiality.  Id. at 94.  A person is
disqualified from serving on a jury if the person has a bias or prejudice in favor of or against
a party or claim, or if the person is unable or unwilling to follow the trial court's instructions.
See Tex. Gov't Code Ann. § 62.105(4) (Vernon 2005); Tex. R. Civ. P. 226a.  Such bias,
prejudice, or inability to follow the court's instructions may not be discernible from a single
statement or response to a general question.  Murff v. Pass, 249 S.W.3d 407, 411 (Tex.
2008).
	Statements of partiality may be the result of inappropriate leading questions,
confusion, misunderstanding or ignorance of the law, and do not necessarily establish
disqualification.  Id.; Cortez, 159 S.W.3d at 92.  When a venire person expresses bias or
confusion, the trial court has the discretion to stop the line of questioning to clarify that
person's response.  Murff, 249 S.W.3d at 411.  Because trial judges are present in the
courtroom and are in the best position to evaluate the sincerity and attitude of individual
panel members, they are given wide latitude in both conducting voir dire proceedings and
determining whether a panel member is impermissibly partial.  Id.  An appellate court must
consider the entire examination in reviewing whether a trial court abused its discretion in
deciding that a juror was disqualified.  Id.  
	 Specifically, Oliver argued that prospective juror number 1, Ms. Street, and
prospective juror number 22, Mr. Piercy, were objectionable.  During voir dire, counsel for
Oliver asked the jury if there was anyone on the panel who couldn't award ten million
dollars, "even if you prove it to me, even if there is an injury, I cannot award that much
money."  Twenty-four of the prospective jurors, including Street and Piercy, answered
affirmatively.  
	On individual examination, Street stated that she felt ten million dollars was
extremely high and she thought a party would have to be "bedridden to get pretty much
that much."  She further told the court that if "the preponderance was there, I could award,
but I don't know about that much."  Street agreed, however, if the medical bills were in the
millions, she would be able to follow the law and award those damages.  She said that she
would follow the law as long as the evidence supported the amounts claimed.  Finally, the
court informed Street that she might not actually see medical bills of ten million dollars, but
the severity of the damages are the premise for the damages that they were seeking as
being reasonable damages.  Street agreed that she could award damages under those
circumstances.  
	When Piercy was individually questioned, he ultimately confirmed that he would
follow the law and award damages according to the evidence.  Piercy initially said it would
be improbable for him to make such award.  The trial court asked him whether, if the
evidence supported a ten-million-dollar amount, he would be able to award it.  He
responded, "If it supported it, yes, and it would have to support it in my mind."  
	The trial court had wide latitude in regard to these challenges.  See id.  What may
have seemed like bias regarding initial statements by these two individuals was clarified
by their individual examination to the trial court's satisfaction.  A juror's willingness to try
to make its decision based upon the evidence and the law is "all we can ask of any juror." 
Cortez, 159 S.W.3d at 93.  We find no abuse of discretion in the trial court's ruling.  We
overrule issue two.
 IV.  Conclusion  
	We affirm the judgment of the trial court.  
 
 


 								ROSE VELA
								Justice


Memorandum Opinion delivered and 
filed this 11th day of June, 2009.







 
