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Marathon Corp. v. Pitzner8/2/2001
Berry, 959 S.W.2d 265, 270 (Tex. App.-Houston [14th Dist.] 1997, no pet.); Sims v. Brackett, 885 S.W.2d 450, 453 (Tex. App.-Corpus Christi 1994, writ denied). However, when the substance of the evidence is apparent from the record, a formal offer of proof may not be necessary. Tex. R. Evid. 103(a); Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 339 (Tex. App.-San Antonio 2000, pet. filed). When the record is sufficient to show an informal offer of proof was made, the issue is preserved for appellate review. Sims, 885 S.W.2d at 453.
Marathon never made a formal offer of proof or formal bill of exception regarding the citation and notification of penalty, but it is clear from the record that the substance of the evidence in question is a citation issued to Hull by OSHA for failing to supply Pitzner with a safety belt on the day of the accident. We hold that Marathon has not waived this issue.
At trial, portions of Hull's deposition were read into the record. In one such portion, Hull testified that he had safety belts available for Pitzner to use. Davidson testified that the safety belt is a harness with a rope or wire that must be attached to something. Davidson and Eftekhar both testified, however, that there was nothing on the dealership roof to which a safety belt could be attached. Photographs of the roof indicate a flat surface with air conditioning units, electrical cables and a two-inch gas line. The discussions between the trial court and counsel regarding the OSHA citation also indicate that Hull had said he did not feel he deserved the citation and penalty, but he paid it rather than contesting it.
Evidence must be relevant in order to be admissible. Tex. R. Evid. 401, 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Evid. 403. In light of the evidence that there was no place on the roof where such a safety belt could be attached, we hold the trial court did not abuse its discretion by excluding evidence of the citation and penalty, and any cross-examination thereon.
Furthermore, even if the trial court had abused its discretion, it is unlikely, in light of the evidence regarding the lack of an attachment point for such a belt, that the exclusion of evidence regarding the OSHA citation probably resulted in the rendition of an improper judgment. See Able, 35 S.W.3d at 617; Brownsville, 897 S.W.2d at 754; Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex. 1989); Gee, 765 S.W.2d at 396. Appellant's seventh issue is overruled.
3. Evidence of Subsequent Improvements
In its eighth issue, Marathon contends the trial court abused its discretion by allowing appellee to present evidence of improvements made to the building after Pitzner's accident. Marathon sought to preclude admission of evidence concerning subsequent changes to the rooftop in its motion in limine. The trial court initially granted the motion, but denied it when the appellee sought to introduce the evidence at trial.
Generally, evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct in connection with the event. Tex. R. Evid. 407(a). The purpose of this rule is to exclude such evidence so as not to discourage parties from taking safety measures. Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 207 (Tex. App.-Texarkana 2000, pet. ref'd); E.V.R. II Assocs., Ltd. v. Brundige, 813 S.W.2d 552, 556 (Tex. App.-Dallas 1991, no writ). However, evidence of subsequent remedial measures is admissible when offered for another purpose, such as proving ownership, control or feasibility of precautiona
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