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Purcell Construction5/4/2000
This is the appeal and cross-appeal of a judgment for personal injury damages in a premises liability case.
Appellant/cross-appellee, Purcell Construction, Inc. (Purcell), appeals the entry of a plaintiff's judgment. Appellee/cross-appellant, Darla T. Welch (Mrs. Welch), appeals the trial court's denial of full prejudgment interest on the judgment because of delay caused by "docket congestion." We overrule appellant Purcell's two points of error and sustain cross-appellant Mrs. Welch's cross-point. We modify that portion of the judgment awarding prejudgment interest to allow interest for the entire period from the filing of suit until the day before final judgment was rendered and we affirm the judgment as so modified.
In 1992, Friendswood Independent School District ("FISD") contracted with Purcell to perform construction projects at several schools, including Friendswood High School ("Friendswood"). The contract required Purcell to be solely responsible for the construction methods of its subcontractors, to take reasonable precautions to prevent injury to other persons, to erect and maintain reasonable safeguards for safety and protection, including danger signs and other warnings, and to promulgate safety regulations. Purcell's responsibility for the construction site and the work of its subcontractors is undisputed.
Purcell subcontracted with White Construction Company ("White") for work that included the installation of a sidewalk and driveway at Friendswood's parking lot.
On January 7, 1993, Mrs. Welch, the parent of a Friendswood student, arrived at the school at about 7 p.m. for a scheduled parents' meeting. She parked her car in the school parking lot and walked toward the school's side entrance where White had removed a section of the sidewalk adjoining the driveway. She stepped into what she thought was a puddle of water standing on the sidewalk, but was actually White's excavation filled with water. She fell, striking and severely injuring both knees. Mrs. Welch sued Purcell and White for negligently causing her injuries. The jury found Purcell and White 75% negligent, and awarded Mrs. Welch $261,154.71 in damages. Subcontractor White settled and is not a party to this appeal. Purcell's motion for judgment n.o.v. and motion for new trial were both overruled.
At trial, Mrs. Welch and three other witnesses testified that there were no warnings or barricades present at 7 p.m. on the evening of her fall to alert her to the presence of a construction excavation. A Purcell employee, Michael Caldwell, testified that White's employees left the job early that day because of bad weather; that he personally had inspected the site at 5 p.m. after White's employees left; and that he saw six orange cones and two white barricades in place around the excavated portion of the sidewalk. Bryan White, White's owner, testified that it was his habit to inspect the premises visually at the end of each work day and that he personally put up barricades that day in the area where Mrs. Welch fell. He speculated that the barricades had been " stolen, vandalized, misplaced" between 5 p.m. and 7 p.m.
Mrs. Welch's counsel argued to the jury and again urges on appeal that the testimony by Purcell and White witnesses that cones and barricades were placed at the accident site was fabricated. Mrs. Welch conceded in testimony that if barricades had been in place at 7 p.m., they would have provided sufficient warning for her to avoid the fall.
In the first of two interrelated issues on appeal, Purcell asserts there is no evidence or legally insufficient evidence to establish that Purcell had actual or constructive notice of the allegedly
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