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Ortiz v. Furr's Supermarkets5/12/2000
This is a double appeal from a personal injury suit. For the reasons stated below, we reverse and render in part and reverse and remand in part.
I. SUMMARY OF THE EVIDENCE
A. Factual History
Appellant/Cross-Appellee, Javier Ortiz, was employed by S&M;Cleaning ("S&M;). S&M;provided nightly floor mopping, buffing, and waxing services at several of Appellee's/Cross-Appellant's, Furr's, stores. During the night shift of July 26-27, 1996, Ortiz was assaulted by two of Furr's night stockers, Ryan Skowronski and Arnold Plaza. Ortiz was pushed backward by Skowronski and then pushed forward by Plaza which caused him to fall to the floor and injure his back. Skowronski and Plaza jumped on Ortiz and then walked away laughing and joking, leaving Ortiz on the floor. Ortiz complained of constant back pain, pains in his neck and head, and sought treatment. Ortiz's physician testified that the assault caused a neck and back injury resulting in a permanent physical impairment.
B. Procedural History
Ortiz filed suit against Furr's and S&M;on December 6, 1996, alleging negligence, gross negligence, assault and battery, negligent supervision, and negligent retention. S&M;was subsequently non- suited. The case proceeded to trial and the jury rendered verdict for Ortiz, finding (1) he was a borrowed servant of Furr's; (2) Furr's was negligent as a non-subscriber under the Workers' Compensation Act; and (3) Furr's negligently retained and supervised their employees. The jury also found that Ortiz' injury was attributable in part to the negligence of S&M; The trial court rendered judgment for Ortiz against Furr's for $145,034, after reducing damages awarded by the jury by fifty percent (50%), the percentage of responsibility the jury attributed to S&M; and an additional five percent (5%), because of S&M;s settlement. See Tex. Civ. Prac. & Rem. Code Ann. ยง 33.012(b)(2)(A) (Vernon 1997). Both parties filed notices of appeal.
II. DISCUSSION
Ortiz presents two issues on appeal: (1) Whether the trial court erroneously applied the Texas Proportionate Responsibility Act to decrease the damages award to the extent that such damages were awarded under the Texas Workers' Compensation Act for "non subscriber" negligence; and (2) Whether there was legally sufficient evidence to sustain the jury's finding that S&M;Cleaning was partially liable for the assault so as to justify a reduced damages award. Furr's raises five issues on appeal: (1) Whether the evidence is sufficient to sustain a finding that Ortiz was a borrowed servant so as to support recovery under Ortiz's non-subscriber negligence theory brought under the Workers' Compensation Act; (2) Whether there was factually and legally sufficient evidence to support the award for past and future mental anguish; (3) Whether the trial court erred in excluding certain evidence concerning Ortiz's criminal record; (4) Whether the trial court erred in refusing Furr's requested jury instruction pertaining to Ortiz's independent contractor status; and (5) Whether there was factually and legally sufficient evidence to support the award for loss of earnings in the past. We begin by addressing Furr's issues.
A. Furr's Appeal
We begin with a discussion of the legal and factual sufficiency standard of review, which encompasses Furr's Issues No. One, Two and Five. We follow with a discussion of the abuse of discretion standard of review, which encompasses Furr's Issues No. Three and Four.
1. Legal and Factual Sufficiency Standard of Review
In considering a "no evidence" legal insufficiency issue, we consider only
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