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Schindler Elevator Corp. v. Anderson8/16/2001
In this appeal, Schindler Elevator Corporation challenges a judgment in favor of Scott and Diana Anderson and their son, "Scooter," for injuries they received when Scooter's foot lodged in an escalator, which tore off his foot's skin and three toes. After a jury awarded the Andersons $16.97 million, the trial court remitted the award to $5.4 million. Schindler appeals in thirteen points of error, contending (1) the evidence of proximate cause is both legally and factually insufficient; (2) the evidence supporting the jury's apportionment of liability is both legally and factually insufficient; (3) the statute of repose barred submission of strict liability questions; (4) the trial court improperly phrased a statute of repose question; (5) it was error to submit jury questions about post- sale strict products liability; (6) the escalator was not the producing cause of Scooter's accident; (7) and (8) there is legally and factually insufficient evidence for failure to warn at the time the escalator was installed and at the time of the accident; (9) the trial court erred in admitting expert testimony; (10) the trial court erred in admitting an audio-muted episode of "Dateline" in which escalator side guards were demonstrated; (11) the trial court erred in permitting incurable, improper jury argument; (12) the evidence supporting Scooter's future mental anguish and his father's past loss of consortium is both legally and factually insufficient; and (13) the evidence supporting the jury's damage award of $16.97 million is legally and factually insufficient. The Andersons bring one cross-point, contending that the trial court erred in remitting past and future medical costs, future pain and mental anguish, and Scott Anderson's loss of consortium.
We affirm in part and reverse and remand in part because: (1) the trial court did not err in admitting the portion of the muted Dateline video; (2) the trial court did not err in finding the Andersons' expert qualified; (3) Schindler did not preserve error to complain about the reliability of this expert's testimony; (4) one of the Andersons' rebuttal arguments was permissible, given the evidence, and required an objection to preserve any error; (5) the other argument, though improper, did not fall into the narrow category of incurable argument; (6) there is sufficient evidence of proximate cause; (7) there is inadequate briefing to address a sufficiency challenge to the jury's apportionment of liability; (8) there is sufficient evidence of Scooter's future pain and mental anguish and Mr. Anderson's loss of consortium; (9) the amount of damages awarded was supported by the evidence; (10) the trial court erred in remitting past and future medical costs, future pain and mental anguish, and Mr. Anderson's loss of consortium; and (11) issues regarding strict liability are moot. Because of our conclusions, we reverse and remand that portion of the judgment that remitted the awards for Scooter's past and future medical costs, future pain and mental anguish, and Mr. Anderson's past loss of consortium, and we affirm the remainder of the judgment. We remand for calculation of the damages in accordance with this opinion.
BACKGROUND
One Saturday afternoon, four-year-old Scooter Anderson accompanied his father to his office in a downtown Houston skyscraper. When leaving the building, Mr. Anderson and Scooter rode down an escalator, which was maintained by Schindler under a contract with the building's owner. Scooter was standing beside his father, one step behind, or against the side of the escalator as he hung over its handrail, when his tennis-shoe-clad foot came in contact with the side skirt of the escalator. In an instant, his foot was dragged in
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