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Wal-Mart Stores8/16/2001
Appellants, Wal-Mart Stores, Inc. and Clyde Canter (Canter), collectively "Wal- Mart," appeal a judgment in a personal injury suit in favor of appellees, Candace Hoke (Candace) and Jimmie Hoke (Jimmie) The jury awarded Candace $250,000 in damages against Wal-Mart and Canter, jointly and severally. The trial court reduced the damages to $200,000 based on Candace's contributory negligence. The trial court added pre- judgment interest to that amount commencing on the date of the incident. In three points of error, Wal-Mart asserts: (1) the evidence is legally and factually insufficient to support the damages for past pain and mental anguish: (2) the jury award is grossly excessive: (3) the trial court erred in admitting into evidence a "Day in the Life" video and a video depicting the administration of spinal injections; and (4) the trial court incorrectly calculated prejudgment interest. We modify the trial court's judgment and affirm the judgment as modified.
FACTUAL BACKGROUND
Candace Hoke visited a Wal-Mart store. While walking through the paper goods aisle, Hoke was struck in the head and shoulder by a Charmin box that weighed between 20 and 25 pounds. A store employee pushed the box from a shelving unit in the store and the box fell approximately twelve feet. No caution or warning signs were displayed in the aisle. Hoke was knocked to the floor, dazed, and did not respond to questions. She was transported by ambulance to the emergency room, where she was diagnosed with cervical muscle strain/spasms and a right shoulder contusion. Hoke was an accomplished equestrian and, although she was injured in the Wal-Mart accident, she continued to compete in equestrian competitions after her injury and up until trial. Candace sued Wal- Mart for negligence. A jury found 20% represented Candace's percentage of responsibility for her injuries, but awarded her $250,000 for past pain and mental anguish. The jury failed to award Candace any damages for the other damage elements contained in the jury charge. The trial court reduced Candace's damages award to $200,000 to account for her percentage of responsibility.
DISCUSSION AND HOLDINGS
I. Sufficiency of the Evidence
In its first point of error, Wal-Mart contends the jury's award of damages for Candace's past physical pain and past mental anguish was not supported by legally or factually sufficient evidence. In addition, Wal-Mart complains the damage award was excessive. When both legal and factual sufficiency points are raised, we are required to rule on the "no evidence" point first. Glover v. Texas Gen. Indem. Co., 619 S.w.2d 400, 401 (Tex. 1981). Here, in part I A, we will address only the legal sufficiency challenge because an excessive damage award claim is reviewed under the same standard as that applied to any factual insufficiency claim. Haryanto v. Saeed, 860 S.W.2d 913, 921 (Tex. App.--Houston [14 th Dist.] 1993, writ denied).
A. Standards of Review
In determining whether there is no evidence of probative force to support a jury's finding, all the record evidence must be considered in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party's favor. Merrill Dow. Pharm. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no evidence point will be sustained when (a) there is a complete absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes th
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