Nguyen v. Barahona (Tex.App.- Houston [1st Dist.] Aug. 28, 2008)(Jennings)
(workplace safety, personal injury, negligence, damages)
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Jennings
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00454-CV Nga "Andy" Nguyen and Ching Enterprises, Inc. v. Doris Barahona
Appeal from 151st District Court of Harris County
Trial Court Judge: Hon. Caroline E. Baker
Attorneys: Peter Norman Steiner | Armando Lopez
MEMORANDUM OPINION
Appellants, Ching Enterprises, Inc. ("Ching") and An Quoc "Andy" Nguyen, challenge the trial court's
final judgment, entered after a bench trial, in favor of appellee, Doris Barahona, awarding her
approximately $145,000 for personal injuries that she sustained while working at Ching. Appellants
present sixteen issues for review. In their first, second, and third issues, appellants contend that the
trial court erred in rendering judgment in favor of Barahona because she failed to prove that
appellants' negligence proximately caused her injuries, in overruling their motion for directed verdict,
and in not allowing them to present two witnesses. In their fourth through eighth and eleventh issues,
appellants contend that there is no evidence or insufficient evidence to support the trial court's awards
for loss of household services, mental anguish, physical impairment, future pain and suffering, and
disfigurement and that there is no evidence or insufficient evidence to support the trial court's findings
of fact and conclusions of law "regarding [Barahona's] severe, disabling, or disfiguring injuries." In their
ninth, tenth, and twelfth issues, appellants contend that there is no evidence or insufficient evidence to
hold Nguyen personally liable, there is no evidence Nguyen "abused [the] corporate form," and there
is "no evidence justifying the findings of fact and conclusions of law that pierce the corporate veil." In
their thirteenth and fourteenth issues, appellants contend that the findings of fact and conclusions of
law that the shredder with she was working when she was injured was defective are against the greater
weight of the evidence and that "there is no evidence that the shredder was in need of repair." In their
fifteenth and sixteenth issues, appellants contend that "some findings of fact are inconsistent" and that
there is insufficient evidence to support certain findings of fact and conclusions of law.
We modify the judgment of the trial court and affirm as modified. Factual and Procedural Background
In her petition, Barahona alleged that, on September 19, 2002, while working as an employee for
Ching, a non-suscriber of workers' compensation insurance, she severely injured her left hand when
operating a carrot-grating machine. (1) At the bench trial, Barahona testified that, in March 2002, she
was hired by Nguyen to work at Ching, a small company that made egg rolls. Barahona prepared the
egg roll mix by first shredding carrots with the carrot-grating machine. She would put the carrots in "a
cup" on the machine, and the carrots were then cut by blades turned by a screw. Barahona explained
that the machine was old, she was never given any safety instructions, and she had not been provided
any safety manuals. When she was injured, Barahona had attempted to fill up the cup with carrots
because "later on [she] would want to turn [the machine] on." She explained that "as [she] was putting
the carrots in, the machine "turned on by itself" and "grabbed [her] hand because [she] put the carrot
in and it pulled [her] hand in." Barahona denied that the machine was on when she placed the carrots
in the cup or that she had put her hand in the machine to remove a stuck carrot.
Barahona further testified that, after the incident, she was transported to a hospital and told that her
"bones were broken." The hospital "only washed [her] fingers" because it did not have a specialist for
broken bones. After Barahona was sent to another hospital, she underwent two operations on her
fingers and subsequently received treatment and therapy.
When asked to describe her pain and suffering, Barahona stated that she felt "really awful," especially
during cold weather, she "could not grab anything with the hand," and she had been "suffering a lot"
because her injuries interfered with her daily tasks. It took her about six months until she was able to
grab or lift something with her hand, but she cannot grab or lift anything heavy. Barahona explained
that it is also painful when she straightens her finger. Barahona's doctor told her that she needed
another operation to fix her hand, which would cost approximately $3,000. He also told her that her
hand would hurt when it was cold because of the screw placed inside her hand. At the time of trial,
Barahona still suffered from pain in her hand, and she had visible scarring on her fingers. She
demonstrated to the trial court how she was unable to bend her left hand.
Barahona agreed that one of the reasons that she did not work after the accident was to take care of
her baby, but she further stated that she had dedicated herself to taking care of her children because
her hand prevented her from working. At the time of trial, Barahona could not make egg rolls because
she could not bend her fingers. She expected to be able to make egg rolls again after her third
operation.
On cross-examination, Barahona agreed that shredding carrots was a routine operation, she had
previously operated the machine without incident, she was not aware of anyone else being injured by
the machine, and she thought that she was operating the machine safely. Barahona maintained that
the machine was off when she put the carrots into it before the accident, and she denied that the
machine was configured with a lever and plate device so that the operator could push the carrots into
the machine without getting near the blades. Barahona noted that the machine looked old and that
there was tape covering "bare wires." Barahona also explained that an employee at Ching named Mimi
showed her how to operate the machine.
Nguyen testified that although he had opened Ching in 1978 to make egg rolls, Ching had not
manufactured egg rolls since 2000. Nguyen explained that when Barahona was injured, Ching was not
in operation and Barahona was not his employee. He also stated that Barahona was not authorized to
be at Ching and that, on the day of the accident, Mimi, who was a supervisor, had brought the food
into his business on her own to make egg rolls.
Nguyen agreed that the carrot grating machine--or vegetable shredder--was "fairly old" and "primitive
in a way," including the design. Nguyen initially denied repairing the machine, but then agreed that he
had placed tape onto the wires on the machine. He also explained that the machine's motor could not
restart itself, it was impossible for the machine to turn off and on by itself, and no one had ever been
injured by the machine. Nguyen noted that it was impossible to operate the machine as described by
Barahona because the operator used a plate to push the carrots into the machine. Also, it would be a
"no-no" for the operator to use her hand to push the carrots into the machine, and the machine
contains a visual warning for the operator not to put her hand into the machine. Nguyen also explained
that one would have to stick one's hand down into the machine for nine to twelve inches to be injured
and that one's hands are never exposed to the blade if the machine is operated correctly. Nguyen
further noted that the machine was not operational on the day of the accident, it had been taken apart,
and it had to be pulled out from storage in order for a person to use it.
Maria Melara, one of Barahona's co-workers, testified that she worked for Nguyen making egg rolls
with Barahona and Anna Lopez and that Barahona was cutting cabbage and carrots on the day of the
accident. Melara explained that "[t]he machine was not good," "it was ruined," it was "broken," and
Nguyen knew it was broken. Using her hands, Melara indicated to the trial court where the operator of
the machine would have to put her hands on the machine in order to use it. During this explanation,
Melara further indicated that the machine's operator had to place her hand on the machine in a certain
way because the machine was "ruined." Melara also indicated that Barahona's hand may have slipped
as a result of where Barahona had to place her hand. (2)
Anna Lopez, another co-worker of Barahona, testified that the carrot grating machine was "not good"
and that, on the occasion in question, it turned on by itself when Barahona was putting carrots into it.
She explained that Barahona pulled out her hand and fell to the ground bleeding. Barahona was taken
by ambulance to a hospital, where her hand was cleaned and bandaged. Lopez noted that, on the
following day, Barahona had "lots of pain" and went to another hospital because her hand was swollen
and infected. Lopez said that it was "very painful" for Barahona. Lopez disputed Nguyen's testimony
that the machine had been put away and was not in working order, claiming instead, "That is the way
they had it" and "That is how we were working." Lopez asserted that Nguyen was aware of the
machine's poor condition and that Ching did not have any supervisors, training manuals, or safety
training. When Lopez went to see Nguyen on the day after the accident, the "machine was gone." (3)
In its final judgment, the trial court ruled in favor of Barahona and awarded her $17,998.81 for past
medical expenses, $3,000 for future medical expenses, $25,808 for past pain and suffering, $10,000
for future pain and suffering, $25,808 for past physical impairment, $10,000 for future physical
impairment, $5,356 for past loss of earning capacity, $25,808 for past disfigurement, $5,000 for future
disfigurement, and $16,130 for past loss of household services.
The trial court subsequently entered eighteen pages of findings of fact and conclusions of law. Among
other things, the trial court found that Barahona had severely injured her left hand while grating
carrots, Barahona was required to work with an "antiquated" and "defective" machine, the machine
had only been repaired by Nguyen, the machine suddenly and without warning turned itself on and
pulled Barahona's hand into the grater, and Barahona suffered debilitating and disfiguring injuries to
her left hand. The trial court found Nguyen's testimony that Ching was not engaged in the business of
manufacturing egg rolls and that Barahona was not his employee to be "not credible." The trial court
also found that Barahona established that Ching and Nguyen were negligent in the following ways and
that these negligent acts or omissions proximately caused Barahona's injuries:
(1) Failure to keep and maintain a safe work premises for their employees;
(2) Failure to keep and maintain safe and suitable equipment for their employees to work with;
(3) Failure to provide rules and regulations for the safety of their employees;
(4) Failure to provide an inspector-overseer who would inspect, oversee and otherwise exercise some
control over the work premises;
(5) Failure to inspect, oversee and otherwise exercise some control over the premises and its
hazardous conditions while plaintiff was working;
(6) Failure to provide safety training for employees such as plaintiff who were required to work in
hazardous conditions;
(7) Failure to provide plaintiff with safety instructions, guidelines, and procedures to properly and
safely perform her work; and
(8) Failure to warn plaintiff of the dangerous conditions involved in performing her work.
The trial court also found that Nguyen failed to warn his workers "of the dangers of working with
defective equipment" and that it was foreseeable to Nguyen that the machine could cut someone's
hand. The trial court further found that Nguyen "should have contracted the services of a professional
to ensure that the repairs to the [machine] were properly made so as not to pose a danger to the
employees." The trial court stated that it "did not find [Nguyen's] testimony about . . . the working
condition of the [machine] to be credible" and found that the machine "was not in safe working
condition which caused and/or contributed to the [machine] being defective."
In its conclusions of law, the trial court concluded that appellants' failure to provide a safe workplace,
failure to furnish their employees with safety policies and manuals, and failure to warn Barahona were
causes-in-fact of Barahona's injuries.
Sufficiency of Evidence to Support Negligence Findings
In their first issue, appellants argue that the trial court erred in rendering judgment in favor of
Barahona because she failed to prove that appellants' negligence proximately caused her injuries.
Within this issue, appellants assert that Barahona had to present expert testimony to support her
claims and "no witness credibly testified that there had been any problem with the machine." In their
second issue, appellants contend that the trial court erred in overruling their motion for directed
verdict and incorporate their argument in their first issue "to avoid redundancy." (4) We will sustain a
legal sufficiency or "no-evidence" challenge if the record shows one of the following: (1) a complete
absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the
only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more
than a scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. City of Keller
v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). "More than a scintilla of evidence exists where the
evidence supporting the finding, as a whole, rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions." Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546,
552 (Tex. 2004). In conducting a legal sufficiency review, a court 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 jurors nor the reviewing
court may disregard it. Id. However, if the evidence at trial would enable reasonable and fair-minded
people to differ in their conclusions, then jurors must be allowed to do so. Id. A reviewing court may not
substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of
reasonable disagreement. Id.
Appellants are nonsubscribers to the Texas Workers' Compensation Act. See Tex. Lab. Code Ann. §
406.002 (Vernon 2006). In an action against an employer who does not have workers' compensation
insurance coverage to recover damages for personal injuries or death sustained by an employee in
the course and scope of the employment, a plaintiff must prove negligence of the employer or of an
agent or servant of the employer acting within the general scope of the agent's or servant's
employment. Id. § 406.033(d) (Vernon 2006); see also Kroger Co. v. Elwood, 197 S.W.3d 793, 794
(Tex. 2006). In such an action, it is not a defense that the employee was guilty of contributory
negligence, the employee assumed the risk of injury or death, or the injury or death was caused by the
negligence of a fellow employee. Tex. Lab. Code Ann. § 406.033(a) (Vernon 2006); Kroger Co., 197
S.W.3d at 794.
A common-law negligence cause of action has three elements: (1) a legal duty owed by one person to
another, (2) a breach of that duty, and (3) damages proximately caused by the breach. Simmons v.
Briggs Equip. Trust, 221 S.W.3d 109, 113 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (citing Van
Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998)); see also Aleman v. Ben E. Keith Co., 227
S.W.3d 304, 310 (Tex. App.--Houston [1st Dist.] 2007, no pet.). "Proximate cause requires both cause
in fact and foreseeability." West Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005); Aleman, 227
S.W.3d at 310. "Cause in fact means that the defendant's act or omission was a substantial factor in
bringing about the injury which would not otherwise have occurred." Union Pump Co. v. Allbritton, 898
S.W.2d 773, 775 (Tex. 1995). "Foreseeability exists if the actor, as a person of ordinary intelligence,
should have anticipated the dangers his negligent act creates for others." Aleman, 227 S.W.3d at 310.
The elements of proximate cause--cause in fact and forseeability--cannot be established by mere
conjecture, guess, or speculation. West Invs., Inc., 162 S.W.3d at 551.
"An employer has a duty to use ordinary care in providing a safe workplace." Aleman, 227 S.W.3d at
310 (citing Elwood, 197 S.W.3d at 794). "It must, for example, warn an employee of the hazards of
employment and provide needed safety equipment or assistance." Elwood, 197 S.W.3d at 794. An
employer must also furnish its employees with safe machinery and instrumentalities, instruct
employees in the safe use and handling of products and equipment, and adequately hire, train, and
supervise employees. Aleman, 227 S.W.3d at 310. "An employer, however, is not an insurer of its
employees' safety," and "owes no duty to warn of hazards that are commonly known or already
appreciated by the employee." Id.
The focus of the evidence presented by Barahona related to Ching's duty, as her employer, to furnish
her with safe machinery, to instruct her in the safe use and handling of the machine, and to generally
provide her with a safe workplace. Barahona presented evidence that the machine was in a general
state of disrepair at the time she was using it. Moreover, she provided testimony that, in its state of
disrepair, the machine was dangerous to work with. Barahona, using her hands, demonstrated to the
trial court how she had to use the machine to grind carrots, and she explained that the machine
grabbed her hand as she was putting carrots into it. Although the machine was not introduced into
evidence, Barahona explained how the machine was designed and how she was told to use it.
Barahona denied that she placed her hand into the machine and, significantly, that the machine was
designed with a "lever" and "plate device" that would have allowed her to operate the machine so that
her hands would not get "near the blades." Barahona learned from Mimi, Ching's employee, how to
operate the machine, and she operated the machine on the day of the accident consistent with the
manner that she had always operated it.
In addition to Barahona's testimony, Melara noted that "[t]he machine was not good," "was ruined," and
had been broken for "a while." Melara also suggested that the operator of the machine had to place
her hands on the machine in a certain way because it was broken. Melara also indicated that
Barahona sustained her injuries when her hand slipped from its location on the machine. Lopez
agreed that the machine was "not good," and she stated that, on the occasion in question, the
machine suddenly turned on. Both Melara and Lopez also testified that Nguyen knew the machine was
broken.
Even Nguyen agreed that the machine was "fairly old" and "primitive in a way." He did testify that it was
impossible to operate the machine as described by Barahona and that the machine was equipped with
a plate device to push the carrots into the machine. Nguyen specifically stated that Barahona would
have been committing a "no-no" by using her hands in the manner that led to her injuries, and opined
that Barahona must have stuck her hand into the machine because Barahona's hand would never
have been exposed to the blade if she had used the machine properly. However, in an apparent
contradiction to some of his own testimony, Nguyen also testified that the machine was not operational
on the day of the accident, had been disassembled, and was in storage. This testimony was offered to
support appellants' assertions that Ching was not operating as a business on the day of Barahona's
injury and that Barahona was not authorized to be on Ching's premises when she was injured.
In sum, Barahona and Nguyen provided conflicting evidence on all three elements of Barahona's
negligence claim. First, while Barahona and her co-workers testified that Barahona was Ching's
employee on the day of the accident, Nguyen denied that she was his employee, claiming that she was
not even authorized to be on Ching's premises. The trial court resolved this credibility dispute against
appellants, finding that appellants were Barahona's employer and that they had a duty to provide her
with a safe workplace, safe equipment, and proper warnings and instructions on the safe use of the
machine.
Second, Barahona testified, among other things, that the machine was broken, was in disrepair, and,
important to the causation element of her negligence claim, lacked a plate device that would have
prevented her hands from getting near the blades. She also stated that she was using the machine in
the normal manner as she had learned from Mimi, a Ching employee. Barahona's testimony about the
poor condition of the machine, as well as the manner in which she was told to use the machine, was
corroborated by her co-workers. Nguyen testified, in contradiction to Barahona, that the machine was
not even operational and that the machine had a plate device that, if used properly, would have
prevented Barahona's injuries. He explained that the machine was designed in such a way as to make
the accident, as described by Barahona, impossible. However, the trial court found Barahona's
testimony to be more credible, finding, that appellants had breached their duty to Barahona by, among
other things, requiring her to work with a machine that "was not in safe working condition" and that
appellants had failed to warn Barahona of the dangers of working with the machine.
Finally, Barahona testified that, in the course of using the machine as instructed, she was injured when
her hands came into contact with the machine's blades. As noted above, Barahona and Nguyen
offered contradictory testimony regarding the condition and the design of the machine. Barahona's
testimony supports the trial court's finding that appellants required her to work with an unsafe
machine, appellants failed to properly maintain the machine, and appellants failed to properly warn
Barahona of the dangers of using the machine and that these negligent acts or omissions caused her
injuries. The trial court apparently rejected Nguyen's testimony that the machine was equipped with a
plate device, making Barahona's injuries, as described, impossible. Instead, the trial court believed
Barahona's testimony, finding that she sustained her injuries as a result of Ching's negligence in
providing her with the unsafe machine that was in poor working condition. Accordingly, we hold that
Barahona presented legally sufficient evidence to establish that Ching, as Barahona's employer, had a
duty to provide her with a safe work place, safe equipment, and proper warnings, Ching breached its
duty, and Ching's breach caused Barahona's injuries.
Appellants further argue that Barahona was required to present expert testimony to support her
claims. Generally, courts will find sufficient proof of causation when lay testimony establishes a
sequence of events that provides a strong, logically traceable connection between the event and the
condition. Aleman, 227 S.W.3d at 310 (citing Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733
(Tex. 1984)). However, "[p]roof other than expert testimony will constitute some evidence of causation
only when a layperson's general experience and common understanding would enable the layperson
to determine from the evidence, with reasonable probability, the causal relationship between the event
and the condition." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006); see also FFE
Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 89, 91 (Tex. 2004) (holding that expert testimony was
necessary in establishing applicable standard of care on matters not within the general experience
and common understanding of laypersons). Thus, expert testimony is required when an issue involves
matters beyond jurors' common understanding. Mack Trucks, Inc., 206 S.W.3d at 583. Whether expert
testimony is necessary to prove a matter or theory is a question of law. Id.
Here, Barahona presented evidence establishing that appellants, through numerous acts and
omissions, failed to provide her with safe equipment with which to perform her job duties. As noted
above, one of the specific, negligent acts committed by appellants was their furnishing Barahona with
a poorly maintained and unsafe machine that was missing a plate that even Nguyen agrees that, if
available, would have prevented Barahona's hand from coming into contact with the machine's blades.
Nguyen emphasized that Barahona's description of the accident simply was not possible because the
machine had this safety device. However, Barahona testified that the machine was missing this device
described by Nguyen and that she was injured while using the machine in the manner she was
instructed to by another Ching employee.
Accordingly, we further hold that expert testimony was not necessary to aid the trial court in resolving
this credibility dispute.
We overrule appellants' first and second issues.
Challenges to Additional Findings of Fact and Conclusions of Law
In their thirteenth and fourteenth issues, appellants argue that the findings of fact and conclusions of
law "attempting to prove that the shredder was defective are against the greater weight of the
evidence" and"there is no evidence that the shredder was in need of repair" because no witness
testified that the machine was malfunctioning or that anyone had ever been hurt by the machine.
Appellants assert, without citation to any authority, that Nguyen "was the only witness in the case with
the ability" to testify as to whether Barahona could have been injured in the manner described.
In their fifteenth and sixteenth issues, appellants assert that "some findings of fact are inconsistent"
and that there is insufficient evidence to support certain findings of fact and conclusions of law. The
limited briefing provided under these two issues consists mostly of rhetorical questions and
unsubstantiated argument. In their briefing on their sixteenth issue, appellants do not include a single
record reference cite. See Tex. R. App. P. 38.1(h).
We have detailed above the evidence sufficient to support the trial court's findings that appellants'
negligence caused Barahona's injuries. To the extent that appellants are again challenging the legal
sufficiency of the evidence to support the trial court's negligence findings in these issues, based upon
our prior holding that the evidence was legally sufficient, we overrule appellants' thirteenth through
sixteenth issues. To the extent that appellants attempt to raise any additional challenges within their
thirteenth through sixteenth issues, we hold that such issues are inadequately briefed. See Tex. R.
App. P. 38.1(h).
We overrule appellants' thirteenth, fourteenth, fifteenth, and sixteenth issues.
Nguyen's Individual Liability
In their ninth, tenth, and twelfth issues, appellants assert that there is no evidence or insufficient
evidence to hold Nguyen personally liable on the theory that Nguyen operated Ching as a sham, there
is no evidence Nguyen "abused [the] corporate form," and there is "no evidence justifying the findings
of fact and conclusions of law that pierce the corporate veil."
Barahona does not respond to these arguments with citation to the record or legal authority to support
the trial court's veil piercing or alter ego findings. In fact, Barahona effectively concedes that there is
no evidence justifying the piercing of Ching's corporate veil in order to impose personal liability upon
Nguyen. Specifically, Barahona states in her appellate briefing that "[w]hether the corporate veil was or
should be pierced is a moot question because it is not necessary for Barahona to pierce the corporate
veil in order to impose personal liability on Nguyen." Barahona further states that "[p]iercing the
corporate veil in this situation is unnecessary." Accordingly, we conclude, based on Barahona's
briefing, that she does not seek to support the trial court's judgment against Nguyen individually based
upon any veil-piercing or alter ego theories.
However, we must further address Barahona's assertion that the personal judgment against Nguyen
should remain because "[u]nder longstanding Texas law, corporate agents can be held individually
liable for tortious acts committed while working for a corporation."
In Leitch v. Hornsby, the Texas Supreme Court considered the imposition of individual liability upon
corporate agents and employees for negligence. 935 S.W.2d 114, 117 (Tex. 1996). The supreme
court has recently considered this issue again, and, in summarizing its opinion in Leitch, explained,
The defendants are correct that a negligence finding against an individual does not automatically
result in individual liability when the individual was acting as the agent or employee of a corporation.
Corporations can, of course, only act through individuals. We explained in Leitch v. Hornsby when
individual liability will be imposed and when it will not. "[I]ndividual liability arises only when the officer or
agent owes an independent duty of reasonable care to the injured party apart from the employer's
duty." We gave as an example an agent whose negligence caused an automobile collision while the
agent was driving in the course and scope of employment. An agent, in his individual capacity, owes a
duty to the public to drive with reasonable care. Therefore, the individual is liable for his or her own
negligence, and the employer is also vicariously liable. The situation in Leitch, however, was different.
The corporate agents were not individually liable even though the jury had found them and their
employer negligent. In that case, the plaintiff Hornsby was injured when he lifted a sixty-pound reel of
cable. There was evidence that his employer, through its officers and employees, had declined to
provide Hornsby a lifting belt or dolly. We held that the actions or inactions of the individuals were
actions or inactions "within their capacities as officers" of Hornsby's corporate employer and that the
individuals "had no individual duty as corporate officers to provide Hornsby with a safe workplace."
The individuals were not liable for their negligence because they "did not breach any separate duty" to
Hornsby. Only their corporate employer was liable for their negligence.
Tri v. J.T.T., 162 S.W.3d 552, 562-63 (Tex. 2005) (citations omitted).
In determining that the corporate officers in Leitch could not be held individually liable, the supreme
court focused on the fact that the corporate employer bore the "nondelegable duty to use ordinary
care in providing [the employee] with a safe workplace." Leitch, 935 S.W.2d at 118. Because the duty
to provide a safe workplace was a "nondelegable duty imposed on, and belonging solely to" the
corporate employer and because the individual corporate officer also being sued for his negligence
did not owe the individual employee this duty and did not breach any separate duty, the supreme court
held that the individual corporate officer could not be held individually liable for his negligence. Id.; see
also Torres v. Trans Health Management, Inc., 509 F. Supp. 2d 628, 632 (W.D. Tex. 2006) (holding
that because plaintiff employee alleged that defendant corporate employee and corporate employer
committed identical negligent acts related to workplace safety and because "the duty to use ordinary
care in providing employees with a safe workplace is non-delegable," Texas law precluded finding of
individual liability against defendant corporate employee).
Here, as noted above, the trial court found that Ching and Nguyen committed the identical negligent
acts and omissions, all of which related to their failures to provide Barahona with a safe workplace.
The trial court, in its findings, collectively referred to the "[d]efendants' failure to provide a safe
workplace, safety policies and manuals, adequate and competent supervision, and . . . failure to warn"
Barahona of the dangers of the machine. The trial court itself also stated, in its conclusions of law, that
the defendants had a "primary, continuing, and non-delegable duty to provide a safe work place and
safe conditions in which their employees may work." There was no finding or conclusion, nor was there
any allegation, that Nguyen owed Barahona an independent duty of care apart from Ching's duty.
Accordingly, we hold that the finding of personal liability against Nguyen cannot be sustained on the
basis that he participated in the tortious conduct.
We sustain appellants' ninth, tenth, and twelfth issues.
Witnesses
In their third issue, appellants argue that the trial court erred in not allowing them to present the
testimony of two witnesses because the testimony of "neither witness should have been unexpected."
Appellants assert that they sought to present Mimi to offer testimony "relevant to the case" as well as
"an unnamed witness who was waiting in the hallway" to testify that Ching was not making eggrolls at
the time. Appellants concede that they did not designate either witness in their responses to
Barahona's request for disclosure. However, they note that Barahona had designated Mimi as a
witness, and they assert that the second unnamed witness was a rebuttal witness.
A party may not offer evidence which was not timely disclosed in a discovery response "unless the
court finds that: (1) there was good cause for the failure to timely make, amend, or supplement the
discovery response; or (2) the failure to timely make, amend, or supplement the discovery response
will not unfairly surprise or unfairly prejudice the other parties." Tex. R. Civ. P. 193.6(a). The party
seeking to offer the evidence at issue has the burden to establish good cause or lack of unfair
surprise or prejudice. Tex. R. Civ. P. 193.6(b). "The trial court has discretion to determine whether the
proponent has met its burden." Brunelle v. TXVT Ltd. P'ship, 198 S.W.3d 476, 477 (Tex. App.--Dallas
2006, no pet.).
Appellants assert that Mimi's testimony would not have unfairly surprised Barahona because Barahona
had designated Mimi as a possible witness, Barahona made references to Mimi during trial, and
appellants made reference to Mimi during their opening statement at trial. However, appellants have
not cited any authority establishing that, on these facts, allowing Mimi to testify would not have
surprised or prejudiced Barahona. Nor have they offered any explanation to support a finding of good
cause for their failure to supplement their discovery responses. Accordingly, we hold that the trial court
did not abuse its discretion in excluding Mimi's testimony.
In regard to the second "unnamed witness" who allegedly was going to testify that Ching had stopped
manufacturing eggrolls long before Barahona was injured, Barahona's position throughout the
underlying case was that she was injured while making egg rolls for Ching. Again, appellants fail to
explain how this unnamed witness would not have surprised or prejudiced Barahona. Nor have they
offered any explanation to support a finding of good cause for their failure to supplement their
discovery responses with the name of this "unnamed witness." Accordingly, we hold that the trial court
did not abuse its discretion in excluding the testimony of the "unnamed witness."
We overrule appellants' third issue.
Loss of Household Services
In their fourth issue, appellants argue that there is no evidence or insufficient evidence to support the
trial court's award to Barahona for her loss of household services. Appellants suggest that only
Barahona's spouse could make a claim or offer testimony in support of such an award and that,
because Barahona's spouse did not testify, the award fails. Alternatively, appellants assert that the
award of $16,130 for past loss of household services is excessive.
"The term 'household services' generally relates to domestic duties." Dougherty v. Gifford, 826 S.W.2d
668, 681 (Tex. App.--Texarkana 1992, no writ) (citing EDCO Production, Inc. v. Hernandez, 794
S.W.2d 69, 77 (Tex. App.--San Antonio 1990, writ denied)). "Where there is proof in the records of the
nature of the household services rendered before the injuries and proof that the injuries have
impaired a person's capacity to perform household services in the future, the evidence is sufficient to
sustain an award for future loss of household services." Six Flags Over Texas, Inc. v. Parker, 759
S.W.2d 758, 762 (Tex. App.--Fort Worth 1988, no writ).
Appellants do not cite any relevant authority to support their challenge to the trial court's award for
loss of household services. In fact, appellants' only specific argument is that "[e]ven if [Barahona's]
husband was deprived of certain services, they might have been because Mrs. Barahona had just
given birth and was nurturing a small child." Assuming that appellants have adequately briefed this
issue, we note that appellants concede that, at the time Barahona suffered from her injuries, she was
married and was raising small children. Moreover, we note that, in support of the award for her loss of
household services, (5) Barahona testified that she had difficulty grabbing things with her hand and
her injuries interfered with her daily tasks. Barahona also testified that it was approximately six months
after the accident before she was able to grab something that was not heavy and that the injuries she
sustained in the accident interfered with her daily tasks. Additionally, Barahona testified that she had a
child shortly after accident. Barahona's testimony established that, shortly after sustaining her injuries
and while suffering from those injuries, she was a housewife and was raising her young child. Thus,
the trial court was entitled to conclude that the daily tasks that Barahona had trouble performing as a
result of her injuries included tasks associated with raising young children. Accordingly, we hold that
the evidence is legally and factually sufficient to support the trial court's award of damages for loss of
household services.
We overrule appellants' fourth issue.
Mental Anguish
In their fifth issue, appellants argue that there is no evidence or insufficient evidence to support the
trial court's award to Barahona for mental anguish because there is nothing in the record to show that
she suffered "more than mere worry, anxiety, or vexation."
In its findings of fact and conclusions of law, the trial court found that Barahona sustained "physical
pain and suffering in the past" in the amount of $25,808 and would sustain "physical pain and mental
anguish in the future in the amount of $10,000." In its judgment, however, the trial court deleted any
reference to an award for future mental anguish. Thus, although appellants challenge the sufficiency
of the evidence to support the awards for both past and future mental anguish, there is absolutely no
mention of an award for past mental anguish in the trial court's judgment and the only reference to
future mental anguish is contained in the findings of fact and conclusions of law. However, this
reference was deleted by the trial court in its actual judgment. Instead, the trial court labeled these
amounts as awards for past and future physical pain and suffering.
Because the trial court's judgment does not contain a mental anguish award, there is nothing for us to
review. Additionally, by failing to raise or brief the discrepancy between the findings of fact and
conclusions of law and the judgment regarding future mental anguish, appellants have waived any
complaint about this discrepancy. See Tex. R. App. P. 38.1(h).
We overrule appellants' fifth issue.
Physical Impairment, Pain and Suffering, and Disfigurement
In their sixth, seventh, and eighth issues, appellants contend that there is no evidence or insufficient
evidence to support the trial court's awards to Barahona for physical impairment, future pain and
suffering, and disfigurement. In their eleventh issue, appellants contend that there is insufficient
evidence to support the trial court's findings of fact and conclusions of law "regarding severe,
disabling, or disfiguring injuries."
The trial court, in its judgment, awarded Barahona $25,808 for past physical impairment, $10,000 for
future physical impairment, $25,808 for past pain and suffering, (6) $10,000 for future pain and
suffering, $25,808 for past disfigurement, and $5,000 for future disfigurement. In its findings of fact
and conclusions of law, the trial court set forth its calculations for the past physical impairment and
past disfigurement awards. The trial court calculated the number of days from the date of injury,
September 19, 2002, to the date of the judgment, which was 1,613 days, and then multiplied that
number by $1.00 per hour for 16 hours per day. The trial court did not set forth any calculations for its
awards for future impairment, pain and suffering, and disfigurement.
In support of these awards, Barahona cites her testimony that, as a result of the injury, she felt "really
awful" especially during cold weather, and that she "[could] not grab anything with the hand."
Barahona further stated that she "had been suffering a lot because there would be times when [she]
could not grab a cup of water or a cup of juice." The injury had interfered with her daily tasks because
she could only function with one hand, and she stated that this condition "lasted a long time."
Specifically, she stated that in order to "grab something with the hand it took about six months," but
even then she could not grab or lift anything heavy. Barahona stated that she was not able to work
during that period and that, had she not been injured, she would have continued working. Barahona
wanted to work, but felt she could not because she could not "straighten her finger well." Barahona's
also demonstrated to the trial court how far she could bend her left hand, indicating that she could
bend her finger only up to a certain limited point. Barahona stated that her finger hurts when she
"straighten[s] it back out" and that her surgeon, who had performed the first operation, had told her
that she needed another operation to "fix [her] hand." Barahona also confirmed that, on the date of
trial, she still had pain in her hand, "[m]ore now that it is cold." When asked if she had "scarring on
[her] fingers," Barahona said "Yes, because it bothers me because the doctor said that with the screw
that I have inside that is--with the cold it hurts."
On cross-examination, Barahona agreed that part of the reason that she did not work after her injury
was because she had had a new baby, but Barahona clarified that she could not work because her
hand "prevent[ed] it," so, instead, she dedicated her time to taking care of her children. Barahona
confirmed that, at trial, she still could not bend her fingers so she was not able to roll egg rolls.
Barahona agreed that her doctor had told her that after her next operation, she could roll egg rolls
again.
In reviewing the trial court's award for pain and suffering, we note that the fact finder "is given a great
deal of discretion in awarding an amount of damages it deems appropriate for pain and suffering."
HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 871 (Tex. App.--Fort Worth 2005, no pet.). "Once the
existence of some pain and suffering has been established, . . . there is no objective way to measure
the adequacy of the amount awarded as compensation." Id. Moreover, the awarding of damages for
"discretionary injuries" such as pain and suffering "is inherently difficult because the alleged injury is a
subjective, unliquidated, nonpecuniary loss." Id. Here, Barahona testified, in regard to her physical
pain, that the injuries caused by the machine made her feel "really awful" and she noted that it was
painful when she attempted to bend her fingers. She also stated that her surgeon recommended that
she undergo another surgery. We hold that this evidence is legally and factually sufficient to support
the trial court's award for Barahona's future pain and suffering.
In regard to the trial court's award for physical impairment, we recognize that in order to recover such
damages, "the effect of any physical impairment must be substantial and extend beyond any pain,
suffering, mental anguish, lost wages or diminished earning capacity." Golden Eagle Archery, Inc. v.
Jackson, 116 S.W.3d 757, 772 (Tex. 2003). The "loss of enjoyment of life" may be considered as a
factor in assessing damages for physical impairment. Id. The determination of the amount of money
that will compensate a plaintiff for her impairment "involves a consideration of elements for which no
mathematical standard exists except what an honest or impartial [fact finder] may deem adequate."
Dico Tire, Inc. v. Cisneros, 953 S.W.2d 776, 792 (Tex. App.--Corpus Christi 1997, pet. denied). Here,
Barahona testified that the injuries affected and limited her daily tasks, she explained that she could
not bend her fingers, could not work because of her injuries, could not lift or handle anything with her
injured hand for six months and, at the time of trial, could not lift anything heavy with her injured hand.
Barahona also demonstrated to the trial court her physical impairment as it existed at the time of trial.
We hold that this evidence is legally and factually sufficient to support the trial court's award for
Barahona's physical impairment.
Finally, in considering the trial court's disfigurement award, we note that disfigurement has been
defined as that which impairs the appearance of a person, or that which renders unsightly, misshapen
or imperfect, or deforms in some manner. Goldman v. Torres, 161 Tex. 437, 446, 341 S.W.2d 154,
160 (1960); Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex. App.--Houston [1st Dist.] 2006, pet. denied). As
with the amount of damages for pain and suffering and impairment, the amount of damages for
disfigurement is also within the province of the fact-finder. Lloyd Elec. Co., Inc. v. Millet, 767 S.W.2d
476, 484 (Tex. App.--San Antonio 1989, no writ). Here, Barahona noted that the grating machine
caused her to have scarring and she showed the scarring to the trial court. We hold that this evidence
is legally and factually sufficient to support the trial court's award for Barahona's disfigurement. We
overrule appellants' sixth, seventh, and eighth issues.
We also consider, in conjunction with reviewing appellants' challenges to Barahona's damages,
appellants' assertion that there is no evidence or insufficient evidence to support the trial court's
findings of fact and conclusions of law "regarding severe, disabling, or disfiguring injuries." Appellants
cite four specific findings of fact and two specific conclusions of law, but appellants do not separately
brief their challenges to these findings and conclusions. Moreover, without a single citation to the
record within their eleventh issue, appellants assert that there is no evidence in the record that
Barahona continues to suffer physical impairment. Appellants' argument is flatly contradicted by the
record because, as summarized above, Barahona testified to her past and current physical impairment
at the time of trial.
Accordingly, we overrule appellants' eleventh issue. To the extent that appellants attempt to assert
other challenges to the enumerated findings of fact and conclusions of law, appellants have
inadequately briefed those challenges. See Tex. R. App. P. 38.1(h).
Conclusion
We modify the judgment of the trial court by deleting the portion of the judgment imposing joint and
several liability against Nguyen individually. We affirm the trial court's judgment as modified.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
1. At trial, the parties referred to the piece of equipment with which Barahona was working as both a
carrot-grating machine and shredder.
2. We note that Melara's testimony, much like most of the testimony presented in this case, was
presented through a translator and is, at times, difficult to understand. The reporter's record reveals
that, on many occasions, when the witnesses and/or translator was having difficulty explaining certain
issues, the witnesses used gestures to augment their verbal testimony. For example, the witnesses
used their hands to illustrate to the trial court how a worker was required to operate the machine.
3.
As her final witness, Barahona presented excerpts from the deposition of her surgeon, Dr. William
Lumsden. We note that although a complete copy of the videotaped deposition is contained in the
record, no written transcript of the deposition is in the record.
4.
To the extent that the second issue includes any arguments distinct from the first issue, we conclude
that the second issue is inadequately briefed. See Tex. R. App. P. 38.1(h).
5.
In its findings of fact and conclusions of law, the trial court set forth its calculation of its loss of
household services as follows: "loss of household services in the past from September 19, 2002
through the date of the judgment in the amount of $16,130 ($2.50 pr/hr x 4 hrs/per day x 1,613 days.)."
6.
Appellants do not challenge the trial court's award of $25,808 to Barahona for her past pain and
suffering.