City of Round Rock v. Lonnie Joseph Lazrine

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-238-CV CITY OF ROUND ROCK, APPELLANT VS. LONNIE JOSEPH LAZRINE, APPELLEE FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT NO. 92-029-C26, HONORABLE JOHN R. CARTER, JUDGE PRESIDING This is a personal injury case. William Lee Brown, an employee of the City of Round Rock, was involved in an automobile collision in which his vehicle struck from behind the vehicle driven by appellee, Lonnie Joseph Lazrine. Lazrine sustained a back injury as a result and brought suit against appellant, the City of Round Rock ("the City"), for his injury. The City admitted negligence on behalf of Brown. The only issues in dispute at trial were the various damages caused by the collision. At trial, all jury findings were favorable to Lazrine. On appeal, the City raises four points of error challenging evidentiary rulings, denial of a jury instruction, and the factual and legal sufficiency of evidence supporting the jury's award of future medical expenses and loss of past earning capacity. We will affirm the judgment of the trial court. THE CONTROVERSY This case arose from an automobile collision in which the vehicle driven by Brown, the City's employee, struck the rear of Lazrine's car while Lazrine was stopped at a crosswalk. Lazrine brought suit to recover damages for injuries he sustained in the collision. It is undisputed that Brown was acting within the scope of his employment with the City at the time the collision occurred. Prior to trial, the City admitted the following: (1) Lazrine was not negligent; (2) Brown was negligent; (3) Brown was acting within the course and scope of his employment with the City at the time of the collision; (4) Lazrine suffered an injury as a proximate result of Brown's negligence; (5) medical expenses in the amount of $9,841.35 that Lazrine incurred for treatment of his injury prior to trial were reasonable and necessary to treat such injury; and (6) those medical expenses, as well as $5,060.00 in lost wages, were the proximate result of Brown's negligence. Due to the City's admissions, the only issues left for the jury to consider were past and future physical pain and mental anguish, past and future loss of earning capacity, past and future physical impairment, and future medical expenses. At trial, Lazrine offered expert medical testimony from his treating physician, Dr. Michael E. Putney. Dr. Putney testified that Lazrine suffered from a pre-existing arthritic condition in his back called "stenosis" which was present prior to the collision, but that the collision aggravated this condition to the point that Lazrine experienced pain in his lower back and hip and numbness in his foot and toes. Dr. Putney operated on Lazrine on September 6, 1991, to relieve the pressure on Lazrine's spinal nerve roots. During the surgery, Dr. Putney discovered that Lazrine had a cracked lamina. Based on the surgery, Dr. Putney determined that Lazrine had suffered a minimum thirteen percent permanent whole-body disability. Dr. Putney testified further that it was probable that Lazrine's injury would require medical treatment in the future, although he could not predict the exact amount of care that Lazrine would require. Lazrine was unable to return to work until December 1991, at which time he could perform only light duty, and since then has not been able to work at the same capacity as he had prior to the collision. The City attempted to introduce at trial evidence relating to the force of impact in the collision and the amount of damage caused to Lazrine's vehicle on the ground that such evidence was probative of Lazrine's physical pain and mental anguish. The City argued that because the impact was slight and the damage to the vehicle minimal, Lazrine's pain and suffering were due to his pre-existing arthritic condition and not a result of the collision. Lazrine objected on the ground that because of the City's admissions, such evidence was no longer relevant. The trial court sustained Lazrine's objection. In its first point of error, the City challenges the trial court's evidentiary rulings excluding evidence of the force of impact in the collision and evidence of the amount of damage caused to Lazrine's vehicle. Second, the City requested the following specific jury instruction: "You should not consider medical evidence that is not based on a reasonable medical probability." The trial court denied the City's proffered instruction. The City moved for a new trial based on this ruling; the trial court denied the motion. In its second point of error, the City challenges the trial court's denial of the City's proffered jury instruction relating to Dr. Putney's medical testimony. In its third and fourth points of error, the City challenges the factual and legal sufficiency of the evidence supporting the jury's award for medical care in the future and its award for loss of past earning capacity. The jury found in Lazrine's favor on all issues and awarded a total of $74,518.00 in damages, which included $7,000.00 for medical care in the future and $12,900.00 for loss of past earning capacity. EXCLUSION OF EVIDENCE In its first point of error, the City contends that the trial court erred in excluding evidence of the force of impact and the amount of damage to Lazrine's vehicle. To obtain a reversal of a judgment based upon an error of the trial court in admission or exclusion of evidence, the City must show that: (1) the trial court did in fact commit error; and (2) the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); Bridges v. City of Richardson, 354 S.W.2d 366, 368 (Tex. 1962); see also Tex. R. App. P. 81(b). Admission or exclusion of evidence during trial is reviewed on appeal under an abuse of discretion standard. Ethicon, Inc. v. Martinez, 835 S.W.2d 826, 831 (Tex. App.--Austin 1992, writ denied). A trial court abuses its discretion when it acts in an unreasonable and arbitrary manner or without reference to any guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1992); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). With this standard of review in mind, we consider the City's first point of error. The City sought to introduce the testimony of three fact witnesses, Charles Vaclavik, Joyce Koncak, and Helen Iselt, which is included in the record by bill of exception. Vaclavik, who was part-owner of the vehicle driven by Lazrine in the collision, testified that there was a crease in the bumper of the vehicle, but that the vehicle remained fully operable. Koncak, Lazrine's employer, testified that there was very little damage to the vehicle and that she had a hard time understanding how Lazrine could be seriously injured due to the minimal damage to his vehicle. Iselt, Lazrine's co-worker, testified that there were hardly any visible signs of damage to the vehicle and that she could not believe that anything so minor could cause such a serious injury. The testimony from Koncak and Iselt concerning their opinion that the collision and resulting damage to Lazrine's vehicle was not severe enough to cause a serious injury is improper lay witness opinion testimony. As a general rule, the testimony of a fact witness must be limited to the facts of which the witness has personal knowledge. Duncan v. Horning, 587 S.W.2d 471 (Tex. Civ. App.--Dallas 1979, no writ). A lay witness must not give an opinion or conclusion based on those facts. Kelso v. Hawkins, 293 S.W.2d 807 (Tex. Civ. App.--Austin 1956, writ ref'd n.r.e.). A lay witness is precluded from giving an opinion on the amount of the damages suffered as the result of an event or occurrence, King v. Roberts, 84 S.W.2d 718 (Tex. 1935), therefore, Koncak and Iselt were precluded from giving their opinions as to the extent of the injury Lazrine sustained as a result of the collision, and exclusion of such evidence by the trial court was proper. Additionally, the City sought to use the above testimony to prove that Lazrine's pain and suffering resulted not from the collision, but from his pre-existing arthritic condition. The district court excluded the evidence, sustaining Lazrine's objection that the evidence was not relevant to the issue of pain and suffering, because the City had admitted that Lazrine's medical treatment was both reasonable and necessary. Evidence of vehicular damage and force of impact generally is relevant in determining the issue of severity of the injury in a personal injury suit arising from an automobile collision. Wright v. Alms. 368 S.W.2d 34, 36 (Tex. Civ. App.--Waco 1963, writ ref'd n.r.e.). Furthermore, when a plaintiff in a personal injury suit suffers from an infirmity not caused by the accident that is the basis of the suit, and when the pre-existing infirmity and the injury flowing from the negligence of the defendant are closely connected and intermingled, the plaintiff is entitled to recover only to the extent that the defendant's negligence aggravated the plaintiff's pre-existing infirmity. Dallas Ry. & Terminal Co. v. Ector, 116 S.W.2d 683, 684 (Tex. 1938); Armellini Express Lines of Fla., Inc. v. Ansley, 605 S.W.2d 297, 307-08 (Tex. Civ. App.--Corpus Christi 1980, writ ref'd n.r.e); Dellinger v. McMillon, 461 S.W.2d 471, 475 (Tex. Civ. App.--Corpus Christi 1970, writ ref'd n.r.e.). The City contends that the evidence of slight impact and minimal vehicular damage tends to show that Lazrine's pain and suffering were the result of his pre-existing condition. However, the City admitted not only that its employee was negligent and his negligence caused Lazrine's injury, but also that the medical expenses and treatment Lazrine received were reasonable and necessary. Had the City not made this last admission, it might have been entitled to introduce evidence that would tend to show Lazrine's pain and suffering were the result of his pre-existing condition, not the result of the collision. However, by making the admission that Lazrine's medical expenses were reasonable and necessary, the City tacitly admitted that the collision aggravated Lazrine's pre-existing condition. Therefore, the trial court did not err by excluding the evidence on the ground that the City's admissions rendered the evidence irrelevant. Point of error one is overruled. JURY INSTRUCTION In its second point of error, the City contends that the trial court erred in sustaining Lazrine's objection to the City's proffered jury instruction that stated: "You should not consider medical evidence that is not based on a reasonable medical probability." The City requested the instruction because it regarded certain portions of Dr. Putney's testimony as based on conjecture and speculation. The City argues that it was entitled to its proffered jury instruction under Otis Elevator Co. v. Wood, 436 S.W.2d 324, 331 (Tex. 1968). (1) In Otis, the parties disputed whether the plaintiff had suffered a heart attack as the result of an injury on an escalator manufactured by the defendant. The defendant objected to the admission of testimony from the plaintiff's treating physician regarding the plaintiff's alleged heart condition on the ground that the testimony was not based upon reasonable medical probability. The trial court overruled the objection and allowed the jury to hear the testimony. On appeal, the defendant contended that the trial court erred in admitting the doctor's testimony concerning the heart condition. The Texas Supreme Court held it was not error for the trial court to admit such evidence. The supreme court noted that the defendant failed to request a special instruction to exclude the evidence at the time the charge was given to the jury. The court suggested that the proper way to object to such evidence was to request a special instruction telling the jury not to consider the heart attack in the assessment of damages. Id. at 332. In applying the Otis decision to this case, we distinguish between the jury instruction suggested in Otis and the jury instruction proffered by the City. Otis clearly states that the determination of whether a finding of fact rests upon reasonable medical probability is a decision for the trial court alone to make. This is reflected in the supreme court's suggested instruction. However, the City's proffered instruction, "You should not consider medical evidence that is not based on a reasonable medical probability," improperly places the role of making this determination upon the jury. If the City's instruction had been submitted, the jury would have been asked to apply a legal standard to determine the sufficiency of the evidence, a judicial function exclusively delegated to the courts. Therefore, the trial court was correct in denying submission of the City's proffered jury instruction. Point of error two is overruled. FUTURE MEDICAL EXPENSES AND LOSS OF EARNING CAPACITY IN THE PAST In its third and fourth points of error, the City contends that there was insufficient evidence to support the jury's findings of $7,000.00 for future medical expenses and $12,900.00 for loss of past earning capacity. The City challenges both the legal and factual sufficiency of the evidence in support of these two damage awards. In deciding a legal sufficiency point of error, we must consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986), cert. denied, 498 U.S. 847 (1990); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); see generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991); Michol O'Connor, Appealing Jury Findings, 12 Hous. L. Rev. 65 (1974). In deciding a factual sufficiency point of error, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951); see also Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986); see generally Powers & Ratliff, supra. Based upon this standard of review, we will examine the damages issues in question. In its third point of error, the City contends that the evidence in support of the jury's award of $7,000.00 for future medical expenses was both legally and factually insufficient. Texas follows the "reasonable probability" rule for future medical damages for personal injury. Fisher v. Coastal Transp. Co., 230 S.W.2d 522, 525 (Tex. 1950); City of San Antonio v. Vela, 762 S.W. 2d 314, 320 (Tex. App.--San Antonio 1988, writ denied). Under this rule, a plaintiff must show by a reasonable probability that medical expenses will be necessary in the future. Fisher, 230 S.W.2d at 523; Keller Indus., Inc. v. Reeves, 656 S.W.2d 221, 227 (Tex. App.--Austin 1983, writ ref'd n.r.e.). A plaintiff may recover only future damages that will "probably" occur, not those that will "possibly" occur; a plaintiff may recover only the latter. Id. The award of future medical expenses is a matter that does not require precise evidence. Ansley, 605 S.W.2d at 311; Moore, 389 S.W.2d at 550; Edens-Birch Lumber v. Wood, 139 S.W.2d 881 (Tex. Civ. App.--Beaumont 1940, writ dism'd). The jury can take into account: (1) the nature of the injury, (2) the amount of necessary and reasonable medical expenses incurred before trial, and (3) the plaintiff's physical condition at the time of trial. Hughett v. Dwyre, 624 S.W.2d 401, 407 (Tex. App.--Amarillo 1981, writ ref'd n.r.e.); Edens-Birch Lumber, 139 S.W.2d at 887; Ansley, 605 S.W.2d at 311. The jury can then estimate the necessity of the future medical care and the reasonableness of the associated expenses. Edens-Birch Lumber, 139 S.W.2d at 887. Future medical expenses need not be established by expert medical testimony based upon "reasonable medical probability." City of San Antonio, 762 S.W.2d at 320 (citing Hughett, 624 S.W.2d at 405). Most courts require the expert doctor to estimate the amount of future medical expenses, and the jury can award an amount greater than the doctor's estimate so long as the estimate is reasonable. Id. at 407; see also Browning v. Paiz, 586 S.W.2d 670 (Tex. Civ. App.--Corpus Christi 1979, writ ref'd n.r.e.). The record indicates that Lazrine suffered a minimum thirteen percent permanent whole-body disability. The record also indicates that it is probable that Lazrine will require medical care in the future as a result of his injury and will suffer a minimum of one "flare-up" annually. Dr. Putney estimated that the expenses for future medical treatment would be roughly $500.00 per year, including doctor visits, physical therapy, and medication. Furthermore, the City admitted liability for Lazrine's past medical expenses in the amount of $9,481.35. The admission of liability for those expenses and the admission that the expenses were reasonable and necessary had the effect of admitting that the collision aggravated Lazrine's pre-existing arthritic condition. Therefore, the City's argument that the evidence is insufficient to support the causal connection between Lazrine's injury and his future medical expenses must fail. Considering Lazrine's permanent bodily injury from the collision, the probability that he will require future medical treatment costing approximately $500.00 per year, and the City's admissions of liability regarding over $9,000.00 in past medical expenses, there is sufficient evidence from which the jury could award $7,000.00 for future medical expenses. Therefore, the trial court did not err in overruling the City's motion for a new trial because the evidence supporting the jury's award was legally and factually sufficient. Point of error three is overruled. In its fourth point of error, the City contends that the evidence in support of the jury's award of $12,900.00 for loss of earning capacity in the past was legally and factually insufficient. At trial, the City stipulated that Lazrine incurred damages in the amount of $5,060.00 for lost wages. Prior to the collision on May 23, 1991, Lazrine worked at Sweetie Pies, a food establishment, forty hours per week at a pay rate of $5.00 per hour. Prior to working at Sweetie Pies, he had worked as a butcher. Lazrine continued to work after the collision until September 5, 1991. Evidence in the record indicates that Lazrine was experiencing physical pain in his back and legs during this period, but continued to work out of economic necessity. Lazrine underwent back surgery on September 6, 1991, and returned to work in December. He left his employment at Sweetie Pies on September 10, 1992. At the time of trial, Lazrine was only able to work sixteen hours per week as a butcher, for $7.00 an hour. The City stipulated that Lazrine had suffered a loss in wages in the amount of $5,060.00 for the time period between the collision and September 5, 1991, but the City argued that this was the maximum amount of past lost wages to which Lazrine was entitled. The City's complaint essentially is that the jury award exceeded the amount of Lazrine's lost wages. However, the proper measure of damages is loss of earning capacity, not loss of wages. Dallas Ry. & Terminal Co. v. Guthrie, 210 S.W.2d 550, 551 (Tex. 1948); T.J. Allen Distrib. Co. v. Leatherwood, 648 S.W.2d 773, 774 (Tex. App.--Beaumont 1983, writ ref'd. n.r.e.). Guthrie holds that although lost wages may be relevant in assessing the proper amount of damages, the proper measure is diminished earning capacity. Guthrie, 210 S.W.2d at 551. The City contends, however, that Lazrine's earning capacity was not diminished because he continued to work as he had prior to the accident. However, the record indicates that Lazrine was in physical pain during the period he worked after the accident and that he was not able to work forty hours per week as he had in the past. In order for Lazrine to obtain damages for loss of earning capacity, he had to prove that his earning capacity had been harmed, and he had to prove the amount of damages with the degree of certainty to which it is susceptible. Bonney v. San Antonio Transit Co., 325 S.W.2d 117, 121 (Tex. 1959); Ingleside v. Kneuper, 768 S.W.2d 451, 459 (Tex. App.--Austin 1989, writ denied); Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486 (Tex. App.--Houston [14th Dist.] 1989, no writ). A plaintiff must introduce evidence from which the jury may reasonably measure in monetary terms his earning capacity prior to the injury. Bonney, 325 S.W.2d at 121. This Court has held that loss of earning capacity cannot be inferred merely from the fact that an injury occurs; there also must be proof of the extent and amount of lost earning capacity. Paschall v. Peevey, 813 S.W.2d 710, 715 (Tex. App.--Austin 1991, writ denied). Damages for loss of earning capacity do not have to be based on any specific degree of physical impairment, but can be based on a composite of all factors affecting earning capacity. Exxon Corp. v. Shuttlesworth, 800 S.W.2d 902, 906 (Tex. App.--Houston [14th Dist.] 1990, no writ). Stamina, efficiency, ability to work with pain, and the weakness and degenerative changes that naturally result from an injury are among the factors relevant to determining whether a person has experienced an impairment in future earning capacity. Springer v. Baggs, 500 S.W.2d 541, 544 (Tex. Civ. App.--Texarkana 1971, writ ref'd n.r.e.). Courts have consistently upheld judgments for reduced earning capacity even though the plaintiff was making as much or even more money after the injury than before, when it was shown that pain, weakness, diminished functional ability, or the like indicated that the plaintiff's capacity for duration, consistency, or efficiency of work was impaired. Id. at 544-45. Evidence that Lazrine was suffering physical pain, was unable to work for the same duration as he was prior to the accident, and was no longer physically able to do the manual aspects of his job at Sweetie Pies indicates that Lazrine's earning capacity was diminished. Therefore, there is both legally and factually sufficient evidence to support the jury's finding. Point of error four is overruled. CONCLUSION Finding no error, we overrule the City of Round Rock's points of error and affirm the judgment of the trial court. Mack Kidd, Justice Before Chief Justice Carroll, Justices Kidd and B. A. Smith Affirmed Filed: June 22, 1994 Do Not Publish 1. In addition to Otis, the City cites numerous cases in support of its second point of error that explain the "reasonable probability standard" but do not address the issue of whether the proffered jury instruction should have been submitted. See Insurance Co. of N. Am. v. Myers, 411 S.W.2d 710 (Tex. 1966); Hughett v. Dwyre, 624 S.W.2d 401 (Tex. App.--Amarillo 1981, writ ref'd n.r.e.); American Sur. Co. v. Semmons, 413 S.W.2d 732 (Tex. Civ. App.--Tyler 1967, writ ref'd n.r.e.).