Affirmed and Memorandum Opinion filed May 17,=20
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-05-01130-CV
____________
JOHN=20
COX,=20
Appellant
V.
CENTERPOINT=20
ENERGY, INC. D/B/A RELIANT ENERGY HL&P, AND KENNETH RAYMOND=20
DUBOIS, =
Appellees
On Appeal from the =
280th District Court
Harris County, =
Texas
Trial Court Cause =
No. 03-47013
M E M O R=20
A N D U M O P I N I O N
This is an=20
appeal from a final judgment rendered on a jury=3Ds verdict=20
in favor of appellant, John Cox. Appellant challenges =
the=20
factual sufficiency of the evidence supporting the =
jury=3Ds=20
apportionment of liability as well as the jury=3Ds award of=20
no damages for (1) physical impairment in the past and in the =
future;=20
(2) physical pain and mental anguish in the future; and (3) =
the loss=20
of future earning capacity. We affirm.
Factual=20
and Procedural Background
A. =20
Appellant=3Ds Traffic=20
Accident
At the=20
time of the events underlying this litigation, appellant was a =
truck=20
driver operating out of Corpus Christi. On April 25, 2002 =
appellant=20
was in Houston to pick up a ladder and other items and deliver =
them to=20
Corpus Christi. On his way to pick up the ladder, appellant =
was=20
traveling north on Telephone Road when Robert Blair pulled out of =
a=20
parking lot in front of appellant=3Ds truck to=20
make a left turn to travel south on Telephone Road. Oncoming =
traffic=20
prevented Blair from completing his left turn and he suddenly =
stopped his=20
truck and trailer in the narrow painted median of Telephone Road, =
blocking=20
appellant=3Ds=20
way. Appellant testified that Blair did not stop before =
pulling out=20
into Telephone Road and that he was surprised when Blair stopped =
his truck=20
and trailer in the median. Despite his surprise, appellant =
was able=20
to stop his truck short of Blair. Appellee, Kenneth Raymond =
DuBois,=20
a Centerpoint Energy, Inc. (ACenterpoint@)=20
employee, was traveling north on Telephone Road behind =
appellant. A=20
split second after appellant stopped, DuBois, unable to stop his =
truck in=20
time, collided with the rear end of appellant=3Ds=20
trailer. At impact, appellant testified his body went =
forward=20
slightly and that his truck tapped the back end of =
Blair=3Ds=20
trailer. The air bags in appellant=3Ds and=20
DuBois=3Ds trucks=20
did not deploy as a result of the collision. In addition, =
appellant=20
reported to one of his treating physicians that the accident was a =
low=20
impact collision. Finally, the front of =
appellant=3Ds truck=20
was not damaged as a result of the collision with =
Blair=3Ds=20
trailer. Following the collision, all three drivers pulled =
their=20
vehicles into nearby parking lots to wait on the police. =
While they=20
were waiting, appellant told DuBois and Blair that Blair had =
pulled out in=20
front of him. The police accident report indicated the =
accident was=20
minor, with no injuries.
Once the=20
police had completed their investigation at the scene, appellant =
continued=20
on to pick up the ladder. From there, because his neck was =
stiff and=20
his shoulder was bothering him, appellant went to Concentra =
Medical Clinic=20
in Houston. X-rays taken there revealed no fractures or =
other=20
injuries and appellant was instructed to follow up with the =
Concentra=20
clinic in Corpus Christi. Appellant then drove his truck =
back to=20
Corpus Christi. It was during this return trip to Corpus =
Christi=20
that appellant began to experience even more pain in his=20
shoulder.
B. =20
Appellant=3Ds Neck and=20
Shoulder Surgeries
The day=20
after his return home, appellant went to the Corpus Christi =
Concentra=20
clinic. The Concentra doctors sent appellant to physical =
therapy,=20
which was unsuccessful in resolving his neck and shoulder =
pain. =20
Appellant was eventually referred to Dr. Borkowski, an orthopedic =
surgeon,=20
for his neck pain, and Dr. Breckenridge, another orthopedic =
surgeon, for=20
his shoulder pain. At that time, while he still had some =
neck pain,=20
appellant=3Ds chief=20
complaint was his shoulder. When conservative treatment was =
not=20
successful in relieving appellant=3Ds neck and=20
shoulder issues, both doctors informed appellant the remaining =
treatment=20
option was surgery. Appellant was unwilling to undergo =
surgery at=20
that time and he continued receiving conservative =
treatment.
After the=20
accident, appellant did not return to work until November 2002, =
when he=20
accepted a position as a truck dispatcher. After appellant =
had=20
worked for approximately a month and a half, the pain in the area =
between=20
his neck and shoulder became so severe appellant was unable to =
continue=20
working. As a result of appellant=3Ds=20
continuing neck pain, Dr. Borkowski recommended surgery and on =
January 23,=20
2003, Dr. Borkowski performed a diskectomy and fusion on=20
appellant=3Ds=20
neck. Following the neck surgery, appellant was required to =
wear a=20
neck brace for two weeks, then a soft collar for two months. =
Dr.=20
Borkowski testified the one hour surgery was successful and =
appellant had=20
no complications arising out of the surgery.
Following=20
the neck surgery, appellant still had pain in his left =
shoulder. =20
Appellant returned to Dr. Breckenridge, who diagnosed appellant =
with=20
rotator cuff tendinitis in his left shoulder. In July 2003 =
Dr.=20
Breckenridge performed an arthroscopic procedure on =
appellant=3Ds left=20
shoulder. During the thirty minute operation, Dr. =
Breckenridge noted=20
and repaired a small, partial tearing in appellant=3Ds rotator=20
cuff that had not been previously discovered. According to =
Dr.=20
Breckenridge, the shoulder surgery was successful with no=20
complications. Appellant had to wear a sling on his left arm =
for=20
about a week following the surgery.
C. =20
Appellant=3Ds=20
Post-Surgery Condition
Dr.=20
Borkowski testified that, in his opinion, he did not expect =
appellant to=20
experience chronic pain following the neck surgery. Despite =
Dr.=20
Borkowski=3Ds=20
prognosis, following his neck surgery, appellant continued to =
report neck=20
pain. Dr. Borkowski testified appellant had poor posture and =
he=20
recommended rehabilitation to improve appellant=3Ds posture=20
and neck alignment. Dr. Borkowski also testified regarding =
his=20
post-surgery recommendations for appellant. Dr. Borkowski=20
recommended that (1) while appellant did not need any future =
medical=20
treatment, he should still receive an annual examination of his =
neck, at a=20
cost between $50 and $100; (2) appellant should use proper neck =
posture;=20
and, (3) while he would not place any specific lifting =
restrictions on=20
appellant, appellant should be careful when lifting.
In the=20
fall of 2003, appellant complained to Dr. Breckenridge that his =
left=20
shoulder pain had gotten worse. Dr. Breckenridge testified =
he had no=20
medical explanation for appellant=3Ds=20
continuing shoulder pain following the successful shoulder =
surgery. =20
By September 30, 2003, Dr. Breckenridge was recommending that =
appellant=20
take anti-inflammatories as needed for his left shoulder =
pain. Dr.=20
Breckenridge performed an impairment rating on appellant and =
determined=20
appellant has a 19% permanent impairment rating. In November =
2003=20
Dr. Breckenridge released appellant for work with restrictions =
against=20
heavy or repetitive overhead lifting. As for any potential =
future=20
medical treatment, Dr. Breckenridge opined that appellant may =
require an=20
occasional cortisone injection in addition to over-the-counter=20
anti-inflammatories.
In October=20
2004 appellant saw Dr. John Obermiller, who is board certified in =
physical=20
medicine rehabilitation, for an independent medical =
examination. Dr.=20
Obermiller agreed with Dr. Breckenridge=3Ds 19%=20
impairment rating and the restriction against heavy or repetitive =
overhead=20
lifting. Dr. Obermiller also testified that =
appellant=3Ds post=20
surgery pain could be caused by scar tissue. Dr. Obermiller=20
testified the appropriate remedy for appellant=3Ds=20
continuing complaints of pain would be anti-inflammatory =
medications,=20
possibly cortisone injections, and therapeutic exercise. =
During=20
trial appellant testified he still drives the same standard =
transmission=20
truck for personal use that was involved in the April 2002 =
accident. =20
Appellant also testified that his only non-work activity that was =
impacted=20
by the April 2002 accident was fishing. Appellant testified =
that he=20
could still fish, it is just not as easy as before. Finally, =
at the=20
time of trial, appellant was still not working, but he was =
training for a=20
new career as a licensed home inspector. Dr. Breckenridge =
had=20
referred appellant to the Texas Rehabilitation Commission, which=20
recommended home inspection because it offered appellant the =
opportunity=20
to earn approximately the same amount of money as trucking. =20
Appellant testified he would complete the training within a few =
months of=20
the trial.
D. =20
Trial Testimony Regarding Appellant=3Ds=20
Pre-Accident Condition and Vehicle Damage
During his=20
deposition in this litigation, appellant testified he had never =
had any=20
type of pain or problems with his neck, left shoulder, or left =
arm. =20
Appellant also did not disclose any prior complaints about neck =
and left=20
shoulder pain to the surgeons treating him. During trial, doctors=20
Borkowski, Breckenridge, and Obermiller all initially opined that =
the=20
problems that led to appellant=3Ds=20
surgeries were related to appellant=3Ds April=20
2002 accident. However, evidence introduced during trial =
revealed=20
that in November 1999 appellant saw his family physician, Dr. =
Castro, for=20
neck and left shoulder pain that radiated into his arm and that =
Dr. Castro=20
diagnosed appellant with a neck spasm and left shoulder=20
tendinitis.
When he=20
learned of the prior complaints, Dr. Borkowski testified that =
appellant=20
had a pre-existing condition in his neck and that, at a minimum, =
this=20
condition was contributing to appellant=3Ds=20
symptoms. Dr. Breckenridge testified that =
appellant=3Ds symptoms=20
in November 1999 were virtually identical to the symptoms that he =
treated=20
in 2002 and 2003. In addition, Dr. Breckenridge testified =
that, more=20
often than not, rotator cuff damage, which includes partial =
tearing, does=20
not occur from trauma, but instead happens gradually from aging, =
continued=20
overuse, repetitive activity, or a combination of those factors. =20
Finally, Dr. Breckenridge conceded that he could not say whether =
the=20
small, partial tear he had repaired in appellant=3Ds left=20
rotator cuff existed prior to the April 2002 accident.
During=20
trial appellant introduced into evidence a receipt showing work =
done on=20
appellant=3Ds truck=20
following the accident, implying the damage was caused by the=20
accident. However, during cross examination, appellant =
admitted=20
items on the receipt should not have been included as the work =
performed=20
was not related to the accident.
E. =20
The Jury=3Ds=20
Verdict
The case=20
was submitted to the jury and the jury awarded appellant: (1) =
$31,865.96=20
for past medical expenses; (2) $1,000.00 for future medical =
expenses; (3)=20
$36,000.00 for loss of earning capacity in the past; and (4) =
$15,000.00=20
for physical pain and mental suffering in the past. The jury =
did not=20
award appellant any damages for: (1) past or future impairment; =
(2) loss=20
of earning capacity in the future; and physical pain and mental =
suffering=20
in the future. Finally, the jury determined that Blair was =
75%=20
responsible for the accident while DuBois was only 25% =
responsible. =20
Based on the jury=3Ds answers,=20
the trial court entered judgment in favor of appellant and against =
DuBois=20
and Centerpoint, for $20,966.49. This appeal =
followed.
Discussion
In four=20
issues, appellant challenges the factual sufficiency of the =
evidence=20
supporting the jury=3Ds=20
apportionment of liability as well as the jury=3Ds award of=20
no damages for (1) physical impairment in the past and in the =
future;=20
(2) physical pain and mental anguish in the future; and (3) =
the loss=20
of future earning capacity. We address the damages issues=20
first.
A. =20
Damages
1. =20
Standard of Review
To sustain=20
a challenge to the factual sufficiency of a jury=3Ds failure=20
to award damages, we consider and weigh all of the evidence, both =
in=20
support of and against the findings, in order to decide whether =
the=20
verdict should be set aside. Doctor v. Pardue, 186 =
S.W.3d 4,=20
17 (Tex. App.CHouston=20
[1st Dist.] 2006, pet. denied) (citing Pool v. Ford Motor =
Co., 715=20
S.W.2d 629, 635 (Tex. 1986)). We will uphold the =
jury=3Ds verdict=20
unless it is so against the great weight and preponderance of the =
evidence=20
as to be manifestly unjust or shocking to the conscience. =20
Id. We may not substitute our judgment for that of =
the jury,=20
even if the evidence would clearly support a different =
result. =20
Nip v. Checkpoint Systems, Inc., 154 S.W.3d 767, 769 (Tex.=20
App.CHouston=20
[14th Dist.] 2004, no pet.). The jury is the sole judge of =
the=20
credibility of the witnesses and the weight to the given to their=20
testimony. Golden Eagle Archery, Inc. v. Jackson, 116 =
S.W.3d=20
757, 761 (Tex. 2003). When someone suffers personal =
injuries, the=20
damages fall within two broad categories: economic and =
non-economic=20
damages. Id. at 763. Texas recognizes the =
following=20
categories of non-economic damages: pain, suffering, mental =
anguish,=20
disfigurement, and physical impairment. Id. at =
769. =20
These categories of non-economic damages may overlap. =
Id. at=20
770. When, as in this case, the jury=3Ds failure=20
to award damages in more than one overlapping category is =
challenged, we=20
must first determine if the evidence unique to each category is =
factually=20
sufficient. Id. at 775. If it is not, we must =
then=20
consider all of the overlapping evidence, together with the =
evidence=20
unique to each category, to determine if the total amount awarded =
in the=20
overlapping categories is factually sufficient. =
Id. =20
This standard of review gives due regard to a jury=3Ds choice=20
of whether to award damages and if so, how to categorize those =
damages=20
that could reasonably fall into more than one category of =
damages. =20
Id.
In the=20
damages question in this case, the jury had eight blanks to fill =
in: (1)=20
past physical pain and mental anguish; (2) future physical pain =
and mental=20
anguish; (3) past loss of earning capacity; (4) future loss of =
earning=20
capacity; (5) past physical impairment; (6) future physical =
impairment;=20
(7) past medical expenses; and (8) future medical expenses. =
None of=20
the damages categories were defined. The jury was instructed =
to=20
consider each element separately and to not include damages for =
one=20
element in any other element. We must presume the jury =
followed this=20
instruction unless the record demonstrates otherwise. =
Id. at=20
771.
2. =20
The Jury=3Ds Award of=20
Zero Damages for Past and Future Physical Impairment is Not =
Against the=20
Great Weight and Preponderance of the=20
Evidence
The jury=20
awarded appellant zero damages for past and future physical=20
impairment. Physical impairment, sometimes called loss of =
enjoyment=20
of life, encompasses the loss of the injured party=3Ds former=20
lifestyle. General Motors Corp. v. Burry, 203 S.W.3d =
514, 554=20
(Tex. App.CFort Worth=20
2006, pet. filed). In his first issue, appellant argues the=20
objective evidence of his physical impairment is so overwhelming =
that the=20
jury=3Ds decision=20
to award no damages is clearly wrong and unjust. In support =
of this=20
argument, appellant points out that following the April 2002 =
accident: (1)=20
he underwent physical therapy; (2) he had shoulder injections as a =
result=20
of the pain he was experiencing; (3) he experienced numbness; (4) =
he=20
underwent a nerve conduction study that demonstrated his nerve =
conduction=20
was being affected by pressure on the nerve; (5) he underwent neck =
and=20
shoulder surgery; (6) following the neck surgery he was required =
to first=20
wear a neck brace and then a soft collar; (7) following the =
shoulder=20
surgery he was required to wear a sling; (8) his surgeons =
identified=20
objective physical injuries that were related to the April 2002 =
accident;=20
(9) several doctors determined that he had a 19% whole body =
impairment;=20
and (10) his ability to fish was impacted.
Initially,=20
while appellant emphasizes the objective evidence of his injury, =
the Texas=20
Supreme Court has determined that a reviewing court should not =
conclude=20
that a jury=3Ds failure=20
to award any damages for physical impairment is against the great =
weight=20
and preponderance of the evidence simply because there is =
objective=20
evidence of an injury. Golden Eagle Archery, Inc., =
116 S.W.3d=20
at 774. This is so because the determination that a plaintiff has =
not and=20
will not suffer physical impairment apart from that already =
compensated in=20
other categories of damages is uniquely within the =
jury=3Ds=20
province. Id.
Here,=20
without a definition of Aphysical=20
impairment@ =
to guide=20
it, the jury could have decided to compensate appellant for each =
of the=20
items he identified above, with the exception of the impact on his =
fishing, under multiple categories, including past pain and mental =
suffering, past medical expenses, and past loss of earning =
capacity. =20
Id. at 773. Accordingly, the only item of damage unique to =
physical=20
impairment damages identified by appellant was the impact on his =
ability=20
to engage in fishing. See id. at 772 (stating that if =
other=20
elements such as pain, suffering, mental anguish, and =
disfigurement are=20
submitted, there is little left for the category of physical =
impairment=20
other than loss of enjoyment of life). With regard to =
fishing,=20
appellant testified he could still fish, it was just more =
difficult than=20
before the accident. The jury could have discredited=20
appellant=3Ds=20
testimony in its entirety and decided his ability to fish was not =
impacted=20
by the accident. See Peter v. Ogden Ground Servs., =
Inc., 915=20
S.W.2d 648, 650 (Tex. App.CHouston=20
[14th Dist.] 1996, no writ) (holding if a plaintiff=3Ds=20
complaints are subjective in nature and incapable of direct proof, =
the=20
trier of fact may award zero damages). Or, the jury could =
have=20
credited appellant=3Ds=20
testimony and decided appellant should not receive any =
compensation for=20
his alleged loss of lifestyle. Golden Eagle Archery, =
Inc.,=20
116 S.W.3d at 773. As the evidence supporting the=20
jury=3Ds decision=20
is not so against the great weight and preponderance of the =
evidence as to=20
be manifestly unjust or shocking to the conscience, we overrule=20
appellant=3Ds first=20
issue.
3. =20
The Jury=3Ds Award of=20
Zero Damages for Future Pain and Mental Anguish is Not Against the =
Great=20
Weight and Preponderance of the Evidence
In his=20
third issue, appellant argues the jury=3Ds refusal=20
to award damages for future pain and mental anguish is against the =
great=20
weight and preponderance of the evidence. In support of his=20
argument, appellant points out his own testimony, as well as that =
of his=20
doctors, that he continued to have neck and shoulder pain =
following his=20
two surgeries.
Based on=20
appellant=3Ds=20
continuing reports of pain, each of appellant=3Ds doctors=20
testified regarding appellant=3Ds=20
post-surgery pain. Dr. Borkowski, appellant=3Ds neck=20
surgeon, testified that (1) appellant=3Ds neck=20
surgery was successful, (2) he did not recommend any future =
medical=20
treatment for appellant, (3) he would not impose any restrictions =
on=20
appellant other than an admonition that he should be careful when =
lifting,=20
(4) he did not anticipate that, following his neck surgery,=20
appellant would experience chronic pain, and (5) that appellant =
had poor=20
posture and that was a reason he prescribed physical therapy for=20
appellant. Dr. Breckenridge, appellant=3Ds shoulder=20
surgeon, testified that (1) appellant=3Ds shoulder=20
surgery was successful, (2) there was no medical explanation for=20
appellant=3Ds=20
continued reports of pain, (3) his only recommendations for=20
appellant=3Ds pain=20
were anti-inflammatories as needed, and possibly cortisone=20
injections. Finally, Dr. Obermiller, who saw appellant only =
one time=20
for an independent medical examination, recommended that appellant =
use=20
therapeutic exercise and anti-inflammatories to address his =
continued=20
pain. Dr. Obermiller also testified that appellant might =
need=20
occasional cortisone injections as well.
The=20
measure of damages in a personal injury case is not subject to =
precise=20
mathematical calculation. Weidner v. Sanchez, 14 =
S.W.3d 353,=20
372 (Tex. App.CHouston=20
[14th Dist.] 2000, no pet.). Each case must be measured by =
its own=20
facts, and considerable discretion and latitude are given to the=20
jury. Id. It is the jury=3Ds unique=20
province to resolve the speculative matters of future pain and =
mental=20
anguish and the amount of damages attributable thereto. =20
Id. As long as sufficient probative evidence exists =
to=20
support the jury=3Ds verdict,=20
we will not substitute our judgment for that of the jury. =20
Id. Here, appellant=3Ds=20
challenge to the jury=3Ds refusal=20
to award damages for future pain and mental anguish is based =
entirely on=20
either his subjective testimony that he continues to experience =
pain, or=20
the testimony of his doctors, which, in turn, was based entirely =
on=20
appellant=3Ds=20
subjective reports that he continues to experience pain. =
Based on=20
appellant=3Ds=20
inconsistent testimony regarding his pre-accident reports of =
similar pain,=20
the jury was free to disbelieve appellant=3Ds=20
testimony regarding his continued pain and the doctor=3Ds=20
testimony based on appellant=3Ds=20
subjective reports. See Gonzalez v. Wal-Mart Stores, =
Inc.,=20
143 S.W.3d 118, 123 (Tex. App.CSan=20
Antonio 2004, no pet.) (holding a jury may ignore a complaining=20
party=3Ds=20
subjective evidence); Waltrip v. Bilborn Corp., 38 S.W.3d =
873, 880=20
n.1 (Tex. App.CBeaumont=20
2001, pet. denied) (stating the jury is free to believe or =
disbelieve the=20
plaintiff=3Ds=20
subjective complaints of pain or the testimony of any other =
witness,=20
including the plaintiff=3Ds doctor,=20
who testified he was relying on what the plaintiff told him); =
Rivas v.=20
Garibay, 974 S.W.2d 93, 96 (Tex. App.CSan=20
Antonio 1998, pet. denied) (holding a jury may disbelieve =
any=20
witness, including a physician, even though that =
witness=3Ds=20
testimony is not contradicted). In addition, the jury could =
have=20
decided appellant=3Ds current=20
pain was the result of pre-existing conditions or other causes, =
such as=20
his poor posture. Gonzalez, 143 S.W.3d at =
123.
As stated=20
above, the factfinder is the sole judge of the credibility of the=20
witnesses and the weight to be given their testimony. =
Id. at=20
124. The factfinder may believe one witness and disbelieve =
another,=20
and resolve inconsistencies in testimony. Id. =
Keeping=20
this in mind, we find the evidence is factually sufficient to =
sustain the=20
jury=3Ds finding=20
of zero damages for future pain and mental anguish. We =
overrule=20
appellant=3Ds third=20
issue.
4. =20
The Jury=3Ds Award of=20
Zero Damages for Future Loss of Earning Capacity is Not Against =
the Great=20
Weight and Preponderance of the Evidence
In his=20
fourth issue, appellant complains of the jury=3Ds decision=20
to award zero damages for future loss of earning capacity. =
In=20
support of this issue, appellant cites his own testimony that he =
was no=20
longer able to work as a truck driver due to his injuries from the =
April=20
2002 accident, as well as the testimony of Dr. Breckenridge =
and Dr.=20
Obermiller that appellant would have permanent lifting =
restrictions and=20
could no longer work as a truck driver for that reason.
The proof=20
of future loss of earning capacity is always uncertain and must be =
left=20
largely to the discretion of the jury. Strauss v. =
Continental=20
Airlines, Inc., 67 S.W.3d 428, 435 n.1 (Tex. App.CHouston=20
[14th Dist.] 2002, no pet.). The measure of this type of =
damages is=20
the plaintiff=3Ds=20
diminished earning capacity in the future directly resulting from =
the=20
injuries he has sustained. Id. at 435. Recovery =
for=20
loss of earning capacity is not based on actual earnings lost, but =
rather=20
on the loss of the capacity to earn money. Id. =
In other=20
words, loss of earning capacity encompasses the =
plaintiff=3Ds ability=20
to work after the date of trial. Metropolitan Life Ins. =
Co. v.=20
Haney, 987 S.W.2d 236, 244 (Tex. App.CHouston=20
[14th Dist.] 1999, pet. denied). Damages for loss of earning =
capacity do not have to be based on any specific degree of =
physical=20
impairment, but can be based on a composite of all of the factors=20
affecting earning capacity. Id. However, to =
recover for=20
loss of earning capacity, a plaintiff must show that he has a =
physical=20
impairment that affects his ability to earn a living. =
Id. at=20
245.
In=20
addressing this issue, appellant overlooks Dr. =
Borkowski=3Ds=20
testimony that he would not impose any specific restrictions on=20
appellant=3Ds work=20
activity. The jury could have disbelieved the testimony =
highlighted=20
by appellant and instead believed Dr. Borkowski=3Ds and=20
concluded that appellant did not have a physical impairment =
affecting his=20
ability to earn a living. Gonzalez, 143 S.W.3d =
at=20
123.
Appellant=20
also does not address Dr. Breckenridge=3Ds=20
testimony that, if he had known about appellant=3Ds history=20
of shoulder tendinitis and degenerative changes in =
appellant=3Ds cervical=20
spine prior to the April 2002 accident, he would have cautioned =
appellant=20
about continuing in a line of work that involved overhead =
lifting. =20
The jury thus could have concluded that any physical restrictions =
on=20
appellant=3Ds ability=20
to earn a living in the future were the result of pre-existing =
conditions=20
and not the April 2002 accident. Id.
Finally,=20
appellant ignores his own testimony that he was receiving =
re-training for=20
a career as a home inspector, a career that, within a short time =
after=20
trial, would enable him to earn approximately the same income as =
his=20
trucking business. Thus, the jury could have concluded that =
even if=20
appellant was physically unable to continue working as a truck =
driver as a=20
result of the April 2002 accident, his ability to earn the same =
income was=20
not impacted. Strauss, 67 S.W.3d at 435.
Because=20
the evidence is factually sufficient to sustain the =
jury=3Ds finding=20
of zero damages for future loss of earning capacity, we overrule=20
appellant=3Ds fourth=20
issue.
B. =20
Apportionment of Responsibility
In his=20
second issue, appellant challenges the jury=3Ds=20
apportionment of responsibility for the April 2002 accident =
between Blair=20
and DuBois.
1. =20
Standard of Review
The jury=20
is given wide latitude in performing its sworn duty to serve as =
the=20
factfinder in allocating responsibility for an accident pursuant =
to=20
section 33.003 of the Civil Practices and Remedies Code. =
Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' =
33.003=20
(Vernon 1997); Rosell v. Central West Motor Stages, Inc., =
89 S.W.3d=20
643, 659 (Tex. App.CDallas=20
2002, pet. denied). When reviewing a factual sufficiency =
challenge,=20
we consider, weigh, and examine all of the evidence, and sustain =
the=20
challenge only if the evidence is so weak as to render the=20
jury=3Ds finding=20
clearly wrong and manifestly unjust. Rosell, 89 =
S.W.3d at=20
659. Even if a different percentage allocation could be =
supported by=20
the evidence, an appellate court may not substitute its judgment =
for that=20
of the jury. Samco Props., Inc. v. Cheatham, 977 =
S.W.2d 469,=20
478 (Tex. App.CHouston=20
[14th Dist.] 1998, pet. denied).
2. =20
The Jury=3Ds=20
Allocation of Responsibility is Not Against the Great Weight and=20
Preponderance of the Evidence
Appellant=20
argues the jury=3Ds decision=20
to assign 75% of the responsibility to Blair and only 25% to =
DuBois is=20
against the great weight and preponderance of the evidence. =
In=20
support, he cites his own testimony that (1) he saw Blair and had =
time to=20
bring his truck to a stop; and (2) he heard DuBois state after the =
accident that, prior to the accident, he was looking out the =
window and=20
did not see appellant=3Ds brake=20
lights. Appellant also cites DuBois=3Ds=20
testimony that, prior to the accident, he saw Blair preparing to =
make his=20
turn across Telephone Road.
In his=20
recital of the evidence supporting his challenge, appellant =
overlooks=20
other evidence also considered by the jury. This evidence =
includes=20
the following: (1) Blair pulled out of a parking lot and across =
two lanes=20
of Telephone Road without stopping first to check for traffic; (2) =
as=20
oncoming southbound traffic on Telephone Road prevented his =
completion of=20
his turn, Blair suddenly stopped in the narrow median, blocking=20
appellant=3Ds path;=20
(3) appellant=3Ds=20
testimony that he would not have stopped at the point in Telephone =
Road=20
where Blair stopped; (4) appellant=3Ds=20
testimony that he was surprised by Blair=3Ds=20
maneuver, had to stop suddenly, and was immediately struck from =
behind by=20
DuBois; and (5) DuBois=3Ds=20
testimony that he had some responsibility for the accident as he =
was=20
unable to stop quickly enough, but that Blair caused the accident =
by=20
pulling into the narrow median and suddenly stopping his vehicle.=20
The=20
evidence recounted above, constitutes factually sufficient =
evidence that=20
both Blair and DuBois were at fault. As there is factually=20
sufficient evidence that both Blair and DuBois were at fault, we =
find no=20
basis for interfering with the jury=3Ds=20
allocation of responsibility. Accordingly, we overrule=20
appellant=3Ds second=20
issue.
Conclusion
Having overruled =
all of=20
appellant=3Ds issues on appeal, =
we affirm=20
the trial court=3Ds final =
judgment.
/s/ =20
John S. Anderson
Justice
Judgment=20
rendered and Memorandum Opinion filed May 17, 2007.
Panel=20
consists of Justices Yates, Anderson, and Hudson.
Appellant=3Ds work history reveals that prior to =
becoming a=20
truck driver, he worked for eight or nine years at an auto parts =
warehouse=20
that required over the head work loading parts onto and taking =
parts off=20
storage shelves. In addition, as a truck driver, appellant =
was=20
required to do frequent over the head work when he secured his =
loads onto=20
his trailer. Dr. Borkowski testified that someone whose job =
involved=20
frequent overhead use of their arms might be at an increased risk =
of=20
contracting=20
tendinitis. |