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Dodge v. Durdin12/1/2005
injury, without which the injury would not have occurred. Excel Corp. v. Apodaca, 81 S.W.3d 817, 820 (Tex. 2000). Foreseeability means that a person of ordinary intelligence would have anticipated the danger his or her negligence created. Id.
In her affidavit, Dodge states that since her injury , she has learned that her injury could have been prevented if appellees had taken any of the following precautions: (1) provided other workers to help control the horse, (2) restrained the horse at the time of the accident, (3) hobbled the horse before applying medication, or (4) placed the horse in a narrow loading chute before applying medication. Appellees contend that this sentence is inadmissible because it is not based on personal knowledge. However, in their reply to Dodge's response to the summary judgment, appellees did not specifically object to this statement in Dodge's affidavit and merely generally objected to the affidavit as a whole based on personal knowledge.
Objections to defects in pleadings, whether of form or substance, must be specifically pointed out by exception in writing. Tex. R. Civ. P. 90, 166a(f). Appellees' general objection at the trial level to Dodge's affidavit was not sufficient to preserve error. Id.; Tex. R. App. P. 33.1.Although appellees correctly assert that an objection to a defect in the substance of an affidavit may be raised for the first time on appeal, lack of personal knowledge is a defect of form. Rizkallah v. Conner, 952 S.W.2d 580, 585 (Tex. App.---Houston [1st Dist.] 1997, no writ). Failure to object at the trial-court level that an affidavit was not based on personal knowledge waives such objection on appeal. Id. By not asserting their admissibility objection in the trial court, appellees have thus waived any complaint that Dodge's statement was not based on personal knowledge.
Construing the information in Dodge's affidavit in the light most favorable to her, we conclude that Dodge presented more than a scintilla of evidence regarding cause-in-fact because reasonable minds could differ as to whether warning Dodge about the dangerousness of the horse or taking precautions would have prevented Dodge's injury . We further conclude that some evidence exists that appellees, as stable owners, would have anticipated the danger of failing to warn Dodge or taking precautions to prevent her injury.
D. Damages
Appellees contend that Dodge did not present evidence to support her claims for loss of earnings and loss of wage earning capacity. We disagree. In her affidavit, Dodge testifies that the horse's kick to her midsection "knocked me backward and to the ground, causing me a great amount of personal injury , physical pain, and mental anguish." Additionally, the summary judgment record shows that Dodge incurred over $4,000 in medical bills as a result of her injury.
We conclude that some evidence exists that Dodge suffered damages resulting from appellees' negligence. Therefore, we hold that Dodge presented more than a scintilla of evidence on every element of negligence.
Conclusion
We reverse the summary judgment rendered by the trial court and remand the cause for further proceedings.
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
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