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Rao v. Rodriguez5/16/1996
In this wrongful death case, Lonnie Rao, Sr., individually and as representative of the estates of Floda Rao and Lonnie Rao, Jr., his deceased wife and child, appeals from a judgement n.o.v. that set aside a jury verdict finding negligence on the part of William Foster, one of the appellees and manager of the apartments owned by Sergio and Janet Rodriguez, the other appellees. The jury found Foster failed to determine the smoke detector in the Raos' apartment was in good working order when the Raos began living in their apartment, and that his negligence was at least partially responsible for the fatal injuries suffered by Rao's wife and child and for other damages sought by Rao, all resulting from a fire in the Raos' apartment.
Rao contends in four points of error the trial court erred in entering judgement n.o.v. because: (1) there was no finding of the relationship of landlord and tenant as between the apartment manager and the deceased; (2) there was no finding of the relationship of landlord and tenant as between the apartment owners and the deceased; (3) Rao is entitled to recovery based upon the jury's finding that Foster failed to determine that the family's smoke detector was in good working order when the family began living in the apartment; and (4) any attempt to preempt the common-law liability of the appellees by statute is contrary to the open courts provision of Tex. Const. art. I, Section(s) 13 and is, therefore, unconstitutional.
Appellees urge in four cross points of error the trial court erred when: (1) it submitted Question 1 to the jury because it was an improper comment on the weight of the evidence since it instructed the jury that the alleged failure of William Foster to provide a working smoke detector was a proximate cause of the deaths of Rao's wife and child when there was evidence in the record that such a failure, if any, was not a proximate cause of the deaths; (2) it submitted the instruction preceding Question 2 because the instruction places an improper standard of care upon Foster; (3) it denied appellees' motion for mistrial after the deliberate injection of liability insurance by appellant's counsel; and (4) there is no evidence supporting the jury's finding that Foster failed to determine that the smoke detector was in good working order at the beginning of the Raos' possession.
We reverse the judgement with respect to Rao's common-law claim against Foster because we hold the trial court erred in granting a judgment n.o.v. as to that claim, and we remand that claim to the trial court for further proceedings because we hold the trial court erred with respect to the form of the questions submitted to the jury as to that claim. We affirm the judgement with respect to Rao's statutory and common-law claim as to the Rodriguezes because Rao did not request the Rodriguezes take any action with respect to his smoke detector, nor did he give them notice of seeking any relief in accordance with the statute, and because any common-law claim as to them is preempted by the smoke detector statute, Tex. Prop. Code Ann. ch. 92 subch. F (Vernon 1995 & Supp 1996). We affirm the judgement with respect to Rao's statutory claim against Foster because an apartment manager has no liability under the statute.
Rao contends in four points of error the trial court erred in granting appellees' motion for judgement n.o.v. If the jury verdict, together with such findings as are required by the undisputed evidence, will not support a judgement for the plaintiff, a motion non obstante veredicto presented by the defendant should be sustained. First American Life Ins. Co. v. Slaughter, 400 S.W.2d 590, 594 (Tex. Civ. App. -- Houston [1st Dist.] 1966, wr
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