=20
Appellant,=20
Rafael Urista, moved for rehearing from our Opinion on Remand, =
which=20
issued August 9, 2007, asserting that we failed to consider his =
issue=20
regarding the improper submission of the "new and independent =
cause"=20
instruction and that he did, in fact, preserve error on the =
improper=20
limitation of voir dire. We grant Urista's motion for rehearing =
only=20
regarding the jury instruction issue, withdraw our prior Opinion =
on=20
Remand, and substitute this opinion in its place. Appellant,=20
Rafael Urista, appeals from a take-nothing jury verdict entered =
against=20
him in his personal injury suit against appellee, Bed, Bath, and =
Beyond,=20
Inc. ("BBB"). In our opinion on rehearing, this Court reversed and =
remanded based on the trial court's submission of an unavoidable =
accident=20
instruction. Urista v. Bed, Bath, & Beyond, Inc., 132 =
S.W.3d=20
517, 523 (Tex. App.--Houston [1st Dist.] 2004) (Urista =
I),=20
rev'd by Bed, Bath, & Beyond, Inc. v. Urista, 211 =
S.W.3d 753=20
(Tex. 2006) (Urista II). On BBB's petition for review of =
our=20
decision, the Texas Supreme Court held that the trial court's =
submission=20
of the unavoidable accident instruction was not reversible error =
and=20
remanded the case for our consideration of Urista's remaining =
issues.=20
Urista II, 211 S.W.3d at 759-60. In his=20
remaining four issues that we address on remand, Urista contends =
that the=20
trial court committed reversible error during jury selection and=20
instructing the jury on "new and independent cause" and that the =
jury's=20
verdict was against the great weight and preponderance of the =
evidence. We=20
conclude that the trial court did not abuse its discretion by =
denying=20
Urista's requested challenges for cause and that Urista failed to =
preserve=20
for appeal his other challenges to the trial court's rulings =
during voir=20
dire examination. We also conclude that the =
new-and-independent-cause=20
instruction was harmless and that the evidence is factually =
sufficient to=20
uphold the jury's verdict. We affirm.=20
Background On=20
September 19, 1998, while shopping at a BBB store, Urista was hit =
in the=20
head and knocked unconscious by plastic trash cans that fell from =
a store=20
shelf. Reginald Neal, a store employee, was attempting to remove =
items=20
from the shelf when the trash cans fell. Upon learning of the =
incident,=20
David Traxler, a general manager with the store, approached Urista =
and=20
filled out an accident report. Urista did not report serious =
injury at=20
that time. Five weeks later, Urista claimed injury and =
photographed the=20
store in preparation for his personal-injury lawsuit against BBB. =
Urista=20
claimed that he suffered a degenerative back condition as a result =
of=20
being hit by the trash cans. At trial,=20
the court allowed each of the attorneys the opportunity to =
question the=20
panel during group voir dire, followed by individual voir dire of =
certain=20
individuals who, during group voir dire, suggested they had an =
inability=20
to follow the law. After a jury was seated, Urista presented =
evidence that=20
Neal negligently caused the trash cans to fall. However, on=20
cross-examination, Urista testified, among other things, that he =
had=20
injured his back twice before: in 1995 in an automobile accident =
and in=20
1996 while at work. The jury found that BBB was not negligent, and =
the=20
trial court entered a take-nothing judgment in favor of BBB. =
In general,=20
voir dire objections must be timely and plainly presented. =
Hyundai=20
Motor Co. v. Vasquez, 189 S.W.3d 743, 759 (Tex. 2006); =
see,=20
e.g., Hallett v. Houston Nw. Med. Ctr., 689 S.W.2d =
888,=20
889-90 (Tex. 1985) (holding that appellant waived trial court's =
error in=20
failing to excuse juror for cause by not informing court before =
exercise=20
of peremptory challenges that counsel lacked sufficient peremptory =
challenges to remove all objectionable jurors); see also =
Tex. R.=20
App. P. 33.1(a)(1) (timely objection to trial court required to =
preserve=20
complaint for appeal). We find no reported civil cases in which =
the=20
appellant objected to the trial court's grant of his =
opponent's=20
challenge for cause, but we note that this situation has arisen in =
the=20
criminal context. See, e.g., Ortiz v. State, 93 =
S.W.3d=20
79, 88 (Tex. Crim. App. 2002); Purtell v. State, 761 =
S.W.2d 360,=20
365 (Tex. Crim. App. 1988). As the supreme court has =
relied on=20
pronouncements of its "sister court" on issues of voir dire, so do =
we,=20
too, look to the Court of Criminal Appeals for guidance here. =
See=20
Hyundai Motor Co., 189 S.W.3d at 752-53; Cortez v. =
HCCI-San=20
Antonio, Inc., 159 S.W.3d 87, 91 (Tex. 2005). In criminal =
cases, a=20
party must object to a trial court's grant of a challenge for =
cause before=20
he may complain of that action on appeal. Ortiz, 93 =
S.W.3d at 88;=20
Purtell, 761 S.W.2d at 365. This principle also applies =
to the=20
safeguarding of similar rights in civil cases. The record=20
shows that in granting BBB's challenge to juror number 26, the =
trial court=20
stated, "These are the ones I'm excusing for cause. If you really=20
disagree, you can talk to them and let me know . . . so those are =
the=20
people that I am granting the motions to excuse for cause at this =
time."=20
Just before the attorneys began making their peremptory strikes, =
the=20
record shows that the trial court formally excused for cause juror =
number=20
26. At no point in the proceedings did Urista's attorney request =
that the=20
trial court bring juror number 26 forward for individual =
questioning, nor=20
did the attorney object to the trial court's ruling granting the =
challenge=20
for cause of this juror. Because Urista did not object when the =
trial=20
court granted BBB's challenge for cause, we hold that Urista has =
waived=20
his complaint on appeal. See Tex. R. App. P. 33.1(a)(1).=20
We=20
overrule Urista's first issue. In his=20
second issue, Urista asserts that the trial court erred in denying =
his=20
motion to strike two prospective jurors, juror number 5 and juror =
number=20
20, for cause. Urista used peremptory strikes on these jurors, =
resulting=20
in two objectionable jurors serving on the jury. BBB=20
contends that Urista failed to preserve error concerning the trial =
court's=20
denial of Urista's requested challenges for cause. To "preserve =
error when=20
a challenge for cause is denied, a party must use a peremptory =
challenge=20
against the veniremember involved, exhaust its remaining =
challenges, and=20
notify the trial court that a specific objectionable veniremember =
will=20
remain on the jury list." Cortez, 159 S.W.3d at 90-91 =
(citing=20
Hallett, 689 S.W.2d at 890). "This ensures that 'the =
court is=20
made aware that objectionable jurors will be chosen' while there =
is still=20
time 'to determine if the party was in fact forced to take =
objectionable=20
jurors.'" Id. at 91. The supreme court held in =
Cortez=20
that error concerning the trial court's denial of a challenge for =
cause=20
requested by Cortez was preserved under circumstances that showed =
that (1)=20
Cortez "gave notice to the trial court before or after he =
delivered his=20
strike list" in a manner such that the notice was "roughly=20
contemporaneous," (2) Cortez's notice was given before the jury =
was=20
seated, and (3) the trial court stated on the record "it's =
preserved."=20
Id. Here, before the jury was seated and at about the =
same time=20
that Urista turned in his strike list, Urista reasserted his =
objections to=20
jurors 5 and 20, reporting to the court that he was using =
peremptory=20
strikes on these jurors and identifying the objectionable jurors =
who would=20
be seated on the jury due to the trial court's denial of the =
challenges=20
for cause. We conclude that, under Cortez, error is =
preserved.=20
See id. Urista=20
contends that the trial court erred by failing to grant his =
challenge for=20
cause on jurors 5 and 20 because they exhibited signs of bias or=20
prejudice. We review a trial court's ruling on a challenge for =
cause for=20
abuse of discretion. Id. at 93. Voir dire=20
examination allows parties to expose possible improper juror =
biases that=20
form the basis for disqualification and enables parties to =
intelligently=20
exercise their peremptory strikes. Hyundai Motor Co., 189 =
S.W.3d=20
at 749. "Bias, in its usual meaning, is an inclination toward one =
side of=20
an issue rather than to the other, but to disqualify, it must =
appear that=20
the state of mind of the juror leads to the natural inference that =
he will=20
not or did not act with impartiality." Id. at 751. =
However,=20
statements that reflect a juror's judgment about the facts of a =
case as=20
presented, rather than an external unfair bias or prejudice, do =
not amount=20
to a disqualifying bias. Id.; Cortez, 159 S.W.3d =
at 94.=20
In Cortez, a nursing home negligence case, a juror, who =
had=20
worked as an insurance adjuster, stated during voir dire that the=20
defendants would be "starting out ahead," due to his personal bias =
against=20
lawsuit abuse. Id. at 90. The supreme court explained, =
however,=20
that "the relevant inquiry is not where jurors start but =
where=20
they are likely to end. An initial 'leaning' is not =
disqualifying=20
if it represents skepticism rather than an unshakeable =
conviction."=20
Id. at 94. Challenges=20
for cause do not turn on the formulaic use of specific words. =
Id.=20
at 93. "Veniremembers may be disqualified even if they say they =
can be=20
'fair and impartial,' so long as the rest of the record shows they =
cannot.=20
By the same token, veniremembers are not necessarily disqualified =
when=20
they confess 'bias,' so long as the rest of the record shows it is =
not the=20
case." Id. During=20
group voir dire, Urista's attorney discussed the specific evidence =
that he=20
intended to introduce in the case, followed by a question to the =
jurors=20
regarding how they would assess that evidence. The record shows =
that=20
Urista's attorney stated, The=20
evidence in this case, and I need to bring this up, is going to =
show you=20
that in 1996, Mr. Urista had a work related injury while he worked =
in=20
Austin. He hurt his low back. And it was a significant injury. =
Took him=20
about 18 months to recover. You'll also hear in the case that for =
the next=20
14 months, Mr. Urista lived a normal life with this family. He had =
healed,=20
until he walked into Bed, Bath & Beyond that day. And I'm =
going to=20
bring you the evidence about the 1996 injury. We're going to talk =
about it=20
at length, the medical care and so forth. But is there anybody =
that [sic]=20
thinks that you would have difficulty knowing he had a prior =
injury,=20
although he recovered from it, would have difficulty knowing he =
had an=20
injury that dealt with the same part of his body? Raise those =
hands=20
up. Jurors=20
numbers 5 and 20 responded to this inquiry. 1.=20
Responses by Juror Number 5 Juror=20
number 5 said during the group voir dire, "Well, since he got a =
prior=20
incident, and here goes another incident--I don't know . . . if he =
went to=20
trial for the other one also, I would have to hear all the =
evidence."=20
Juror number 5 said that since Urista's attorney told her that =
Urista had=20
a prior injury, it would make it difficult for her "to judge it =
equally=20
and fairly." During individual questions of juror 5, the juror =
initially=20
related that she would hold Urista to "a greater burden of proof =
than what=20
the law says in a civil case" and that Urista would have a "higher =
burden"=20
to prove more than what the law required. However, upon further =
questions=20
by BBB's attorney and the trial court, juror 5 said that she =
"would follow=20
what the Court says the law is," she would base her verdict on the =
law as=20
given to her by the Court, she would "sit fairly," and "evaluate =
the facts=20
of the case." 2.=20
Responses by Juror Number 20 During=20
group voir dire, juror number 20 responded to Urista's attorney's =
question=20
by agreeing with counsel that "[p]reponderance is out the window." =
Upon=20
individual questioning, juror number 20 acknowledged that "without =
having=20
heard anything from the stand, Mr. Phillips and Bed, Bath & =
Beyond"=20
are "slightly" ahead, and that it was "not even." When Urista's =
attorney=20
said, "Nothing in the world is going to change to make it even, is =
it, no=20
matter what anybody says," the juror responded "No." During the =
trial=20
court's questioning, juror number 20 said that the reason that she =
was=20
"weighted in favor of the defendant" was "solely because the =
plaintiff has=20
said that there was a back injury in the same part of the body." =
Juror=20
number 20 said that she "would be able to wait and hear the =
evidence in=20
the case and be fair to both sides." 3.=20
Analysis Although=20
jurors 5 and 20 initially said they would have difficulty judging =
the case=20
equally and fairly, those statements were in response to Urista's=20
attorney's questions presenting the actual facts in the case, =
which is not=20
a proper ground for disqualification because a party is entitled =
to a fair=20
jury, not to a favorable jury. See Hyundai Motor =
Co.,=20
189 S.W.3d at 749-50; Cortez, 159 S.W.3d at 94. As the =
trial=20
court expressed when denying Urista's challenge for cause to =
number 20,=20
Urista's claim of bias or prejudice was similar to asking a juror, =
"Would=20
you be prejudiced against my client because my client ran a red =
light and=20
got in an accident?" The jurors reported a willingness to listen =
to the=20
evidence, fairly evaluate the facts in the case, and apply the law =
as=20
given by the judge. We conclude that the trial court did not abuse =
its=20
discretion by denying Urista's challenges for cause of jurors 5 =
and 20=20
because the record fails to show any disqualifying external bias =
or=20
prejudice. See Cortez, 159 S.W.3d at 91, 93-94; see =
also=20
Hyundai Motor Co., 189 S.W.3d at 751. We overrule =
Urista's second=20
issue. In his=20
third issue, Urista contends that the trial court erred in denying =
him the=20
opportunity to further question prospective jurors 29, 32, and 33=20
regarding their ability to award mental anguish damages. These =
jurors were=20
part of the group voir dire, but were not individually questioned =
by the=20
attorneys. Urista complains that the trial court reversed its =
decision to=20
allow individual questioning of these three prospective jurors =
after the=20
court had related that it would allow individual questioning of =
jurors.=20
Although Urista's attorney was allowed to question many of the =
prospective=20
jurors individually, the trial court did not allow him to question =
these=20
three jurors individually. To preserve=20
a complaint that a trial court improperly restricted voir dire, a =
party=20
must alert the trial court as to the specific manner in which it =
intends=20
to pursue the inquiry. Hyundai Motor Co., 189 S.W.3d at =
758=20
(finding error waived by party's failure to "frame additional =
inquiries or=20
convey to the trial court that the thrust of any remaining =
questions would=20
be different from the single one presented for a ruling"). The =
court=20
explained that to preserve error, the trial court must be given =
the=20
"opportunity to cure any error, obviating the need for later =
appellate=20
review, and further [allow] an appellate court to examine the =
trial=20
court's decision in context to determine whether error exists, and =
if so,=20
whether harm resulted." Id. "Thus, the Court =
traditionally has=20
adhered strictly to the principle that voir dire objections must =
be timely=20
and plainly presented." Id. at 759. During voir=20
dire of the group of prospective jurors, Urista's attorney =
questioned the=20
panel concerning mental anguish, by asking "Is there anybody that =
is=20
philosophically opposed to awarding someone damages for anything =
like=20
mental anguish . . . ?" and by asking whether the jurors "would =
have=20
trouble following the Court's instructions." The record shows that =
jurors=20
8, 11, 16, and 21 responded to this question. The record does not =
include=20
any response to this question concerning mental anguish damages by =
the=20
three jurors that Urista complains of here, prospective jurors 29, =
32, and=20
33. The trial=20
court individually brought prospective jurors 29, 32, and 33 to =
the bench=20
and the court questioned each of the jurors, but did not allow the =
attorneys to ask any further questions of the individual jurors. =
The court=20
inquired of each juror whether there was any reason that the juror =
would=20
not be able to listen to the instructions about the law and be =
fair to=20
both sides in the case. Each juror reported that he or she could =
follow=20
the law and be fair to both sides in the case. Urista's=20
attorney requested the opportunity to individually question the =
three=20
jurors because "they said they could not award money for mental =
anguish,"=20
but the court responded to the request by stating, "I don't think =
that's a=20
proper characterization of what they said." The trial court also =
said that=20
"after we're done," Urista's attorney would be allowed to "make a =
record"=20
concerning the trial court's refusal to allow individual =
questioning of=20
the jurors. After the trial court ruled on all the challenges for =
cause,=20
Urista's attorney stated, "I'm sorry, Judge, I do have a couple of =
things=20
I would like to put on the record. Does the Court want me to do =
that after=20
the jury is let go?" The trial court responded in the affirmative. =
While=20
the jury was in recess and before he began making his peremptory =
strikes,=20
Urista's attorney objected to the trial court's refusal to allow=20
individual voir dire of the three jurors because he had relied on =
the=20
trial court's earlier representation that it would be allowed. =
Urista's=20
attorney said that had he known the trial court would not be =
allowing the=20
individual voir dire, he would have further explored biases and =
prejudices=20
of these three jurors while conducting voir dire of the group. =
In his=20
objections to the trial court's refusal to allow the individual =
voir dire=20
of these three jurors, Urista's attorney said that he was "not =
able to ask=20
the questions that [he] needed to ask in order to present them" =
and that=20
he was "denied the opportunity to go into some areas due to the =
Court's=20
instructions." After confirming that Urista had made all the =
objections he=20
wished to make, the trial court stated, The Court=20
will note for the record that counsel has mischaracterized the=20
instructions given to counsel, both on the record and off the =
record=20
regarding voir dire. And the Court afforded the parties 30 minutes =
to=20
conduct voir dire and, then, to move for grounds for =
disqualification. And=20
I did inform counsel that they would be able to have [venire =
members]=20
approach the Bench, so they could follow-up on specific areas, =
which have=20
already been covered, not so that they could have free reign to do =
additional voir dire. And also mention to counsel that he spent a=20
significant time arguing the facts of the case and arguing the =
law, as=20
opposed to asking questions. Also for the record, that counsel has =
not=20
suggested or put on the record, prior to me making this ruling, =
any=20
specific questions which he was denied the opportunity to ask. =
Therefore,=20
I'm overruling the objection. To preserve=20
error from the denial of the opportunity to conduct voir dire, =
Urista had=20
the burden to make a record to show the specific manner in which =
he=20
intended to pursue his inquiry. See Hyundai Motor Co., =
189 S.W.3d=20
at 758. When group voir dire on the subject matter complained of =
on appeal=20
has been allowed, error is not preserved unless counsel identifies =
the=20
specific areas of inquiry he wishes to pursue during individual =
voir dire.=20
See id. The trial court allowed voir dire about mental =
anguish=20
damages, and these jurors did not respond. See id. We =
hold that=20
because Urista failed to plainly present an objection to the trial =
court=20
that included the specific areas of inquiry he wished to pursue, =
he failed=20
to preserve any error for our review. See id. We overrule=20
Urista's third issue. In his=20
fourth issue, Urista contends that the trial court erred in =
submitting,=20
over Urista's objection, the following instructions in the jury=20
charge: An=20
occurrence may be an "unavoidable accident," that is, an event not =
proximately caused by the negligence of any party to =
it. "New and=20
independent cause" means the act or omission of a separate or =
independent=20
agency, not reasonably foreseeable, that destroys the causal =
connection,=20
if any, between the act or omission inquired about and the =
occurrence in=20
question and thereby becomes the immediate cause of such =
occurrence.=20
We review=20
charge error under an abuse of discretion standard. In re =
V.L.K.,=20
24 S.W.3d 338, 341 (Tex. 2000). The trial court is required to =
submit=20
requested instructions to the jury only if the pleadings and =
evidence=20
support them. Tex. R. Civ. P. 278; Harris County v. =
Smith, 96=20
S.W.3d 230, 236 (Tex. 2002) (citing Elbaor v. Smith, 845 =
S.W.2d=20
240, 243 (Tex. 1992)). A.=20
Unavoidable Accident The supreme=20
court held that the trial court's inclusion of the unavoidable =
accident=20
instruction in this case was harmless error. Urista II, =
211=20
S.W.3d at 759-60. We will not revisit that issue. B.=20
New and Independent Cause Urista also=20
contends that the trial court erred in submitting to the jury an=20
instruction on "new and independent cause" when no evidence was =
introduced=20
to support such a finding. A =
"new and=20
independent cause" is defined as an act or omission of a separate =
and=20
independent nature which destroys the causal connection between =
the=20
negligent act or omission of the tortfeasor and the injury =
complained of,=20
and thereby becomes the immediate cause of such injury. Darwin =
v.=20
Fugit, 914 S.W.2d 621, 626 (Tex. App.--Fort Worth 1995, writ =
denied)=20
(citing Galvan v. Fedder, 678 S.W.2d 596, 598 (Tex. =
App.--Houston=20
[14th Dist.] 1984, no writ)); Young v. Massey, 128 Tex. =
638, 641,=20
101 S.W.2d 809, 810 (1937). Here, BBB did not present any evidence =
that=20
Urista's injury resulted from the act or omission of a separate =
and=20
independent nature. Consequently, the trial court erred in =
submitting the=20
new-and-independent-cause instruction. See Darwin, 914 =
S.W.2d at=20
626. But to=20
obtain reversal of a judgment based on charge error, Urista must =
show that=20
the incorrect jury instruction probably caused the rendition of an =
improper judgment. Tex. R. App. P. 44.1(a)(1); Urista II, =
211=20
S.W.3d at 757. It is a rare case in which the incorrect inclusion =
of "new=20
and independent cause" in the jury charge is reversible error.=20
Galvan, 678 S.W.2d at 599. After examining the record, we =
cannot=20
conclude that the inclusion of the new-and-independent-cause =
instruction=20
harmed Urista. At trial,=20
substantial evidence of other causes of Urista's injury was =
introduced,=20
which mitigated against a finding that the incident at the BBB =
store was a=20
proximate cause of Urista's injury. Testimony from Urista's wife =
and=20
doctor established that, before the store incident, Urista had =
suffered=20
two prior back injuries that required significant medical =
attention. These=20
injuries resulted from the 1995 automobile accident and the 1996=20
work-related accident. The jury, faced with these prior instances, =
likely=20
concluded that Urista's back injury resulted from prior events =
unrelated=20
to the store incident. We cannot conclude that the=20
new-and-independent-cause instruction probably caused an =
improper=20
verdict. Although=20
the trial court erred in submitting instructions on "unavoidable =
accident"=20
and "new and independent cause" in the jury charge, we hold that =
Urista=20
has not shown that he was harmed by the inclusion of these =
instructions.=20
See Tex. R. App. P. 44.1(a)(1); Urista II, 211 =
S.W.3d at=20
757. We overrule=20
Urista's fourth issue. In his=20
fifth issue, Urista challenges the factual sufficiency of the =
evidence=20
supporting the jury's finding that BBB was not liable for Urista's =
injury.=20
Urista had the burden of proof at trial. Therefore, to prevail on =
appeal,=20
Urista must show that the adverse finding is against the great =
weight and=20
preponderance of the evidence. Dow Chem. Co. v. Francis, =
46=20
S.W.3d 237, 242 (Tex. 2001). We must consider and weigh all of the =
evidence, and we will set aside a verdict only if the evidence is =
so weak=20
or if the finding is so against the great weight and preponderance =
of the=20
evidence that it is clearly wrong and unjust. Id.; =
see Pool=20
v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). In doing =
so, we=20
must "detail the evidence relevant to the issue" and "state in =
what regard=20
the contrary evidence greatly outweighs the evidence in support of =
the=20
verdict." Dow Chem. Co., 46 S.W.3d at 242; see also=20
Pool, 715 S.W.2d at 635. However, we=20
remain mindful that the jury is the sole judge of the credibility =
of the=20
witnesses and the weight to be given their testimony. See =
McGalliard=20
v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The jury may =
believe=20
one witness and disbelieve another and resolve inconsistencies in =
any=20
testimony. Id. We cannot substitute our opinion for that =
of the=20
jury or determine that we would have weighed the evidence =
differently or=20
reached a different conclusion. Hollander v. Capon, 853 =
S.W.2d=20
723, 726 (Tex. App.--Houston [1st Dist.] 1993, writ denied).=20
Geovanna=20
Urista, Rafael Urista's wife, testified that they went to BBB in =
the=20
afternoon to shop for items for their new home. She said that she =
watched=20
as two stacks of four or five hard plastic trash cans tumbled from =
the=20
topmost shelf and landed on or near her husband, who was knocked=20
unconscious for about two minutes. Upon awakening, Rafael =
complained of a=20
headache and dizziness. Geovanna said that Urista wanted to leave =
the=20
store, but they continued to walk around the store because she was =
concerned that he might "have a seizure or pass out on me." She =
also=20
testified that Urista sustained scratches on his leg when broken =
dishes=20
and glassware ripped his pants. Contrary to Traxler's testimony, =
Geovanna=20
said that no BBB employee offered medical help or showed them to a =
place=20
to sit down. Rafael also=20
testified at trial. He said that while looking at dishes at BBB =
with his=20
young daughter, he was struck in the head, knocked unconscious =
"for some=20
time." He testified that when he awoke laying on the floor, he was =
dizzy,=20
disoriented, his head hurt, and he felt sore to the touch. He saw =
broken=20
dishes around him when he got up, as well as trash cans, including =
one=20
that had shattered into many pieces. He also recalled that his =
jeans were=20
torn and that there was a slight amount of blood around the torn =
fabric.=20
He said that he wanted to leave the store immediately, but upon =
his wife's=20
urging, he agreed to stay for a short time to be certain he was =
"okay." He=20
said he did not see Traxler until he had left the immediate area, =
while=20
walking around the store. On the=20
other hand, and as the supreme court observed, BBB chose=20
to defend this case principally by attacking Urista's credibility. =
Urista=20
and his wife were the only witnesses to his being struck in the =
head by=20
the trash cans. And while this claim was not directly challenged =
by BBB,=20
as it would have been difficult to do so in the absence of other=20
witnesses, BBB did vigorously challenge Urista's claim to have =
been=20
injured as a result of the incident. As we have already noted, the =
evidence at trial showed that after the incident occurred, Urista =
declined=20
the manager's offer of assistance and did not report being knocked =
unconscious or that he had been injured. Moreover, he continued =
with his=20
shopping before leaving the store. Urista also admitted that he =
had a=20
pre-existing back injury, that he did not complain of pain =
immediately=20
after the accident, that medical tests taken after the incident =
did not=20
reveal any changes in Urista's back, and that Urista's medical =
records=20
describing his injuries as work-related were changed by Urista's =
doctor,=20
at the request of Urista's lawyer, to say the injuries were caused =
by the=20
BBB accident. After hearing this evidence, the jury could quite =
reasonably=20
have disbelieved Urista's testimony that he had actually been =
struck by=20
the trash cans that fell off the shelf. In short, the jury could =
simply=20
have concluded that Urista failed to prove that BBB was=20
negligent. Urista=20
II, 211 S.W.3d at 757-58. Upon this record, "It is reasonable =
to=20
conclude that Urista failed to carry his burden of proof." =
Id. at=20
757. Accordingly, we hold that the jury's verdict was not so =
against the=20
great weight and preponderance of the evidence that it was clearly =
wrong=20
and unjust. Dow Chem. Co., 46 S.W.3d at 242. We overrule=20
Urista's fifth issue.
Panel=20
consists of Justices Taft, Jennings, and Alcala.