Opinion
No. 01-09-00458-CV
Opinion issued November 10, 2010.
On Appeal from the 157th District Court, Harris County, Texas, Trial Court Cause No. 2007-75899.
Panel consists of Justices KEYES, HIGLEY, and BLAND.
MEMORANDUM OPINION
Sabrina Taylor appeals the denial of her motion for judgment notwithstanding the verdict in a civil assault case. In doing so, Taylor challenges the legal sufficiency of the jury's verdict that Theresa Washburn-Grant did not commit an assault. Finding no error, we affirm.
Background
Sabrina Taylor worked for the University of Phoenix as an academic counselor at a Houston campus. Theresa Washburn-Grant worked for the University of Phoenix as well, but at a different Houston location. Both Taylor and Washburn-Grant participated in a university-sponsored employee social event in December 2005. The event consisted of series of games and activities in a carnival-like atmosphere. Taylor and Washburn-Grant were the final contestants in a musical chairs tournament. During the final round, both held on to the remaining chair as they circled it. When the music stopped, Washburn-Grant pulled the chair away from Taylor. Taylor lost her balance and fell to the floor.
Grant emphasized that she did not intend to cause Taylor injury. She further testified that, after the fall, Taylor did not appear to be injured. Washburn-Grant immediately reached down to help Taylor to her feet, and they laughed and hugged. Washburn-Grant asked Taylor if she was okay, and Taylor said she felt fine. In contrast, according to Taylor, she kept passing out and had to be revived by other employees during the event. Several minutes after the incident, Taylor began preparing to serve as master of ceremonies for the final activity, a karaoke competition. Taylor, who won the competition the previous year, also performed a song and distributed prizes. Taylor stayed to help place the tables and chairs in their original positions when the event was over.
Taylor took medical leave intermittently during 2006 and early 2007, but received a full release with zero permanent impairment to perform her job in May 2007. In the fall of 2007, however, she took additional leave. At least some of that leave was for unrelated health reasons. By March 2008, she had exhausted her available leave, and Phoenix required that she provide a qualified medical release for her return to work. When she did not provide the release, she was discharged from the company.
Taylor sued Washburn-Grant for civil assault. At trial, Taylor testified that as a result of the fall, she had lumbar and cervical disc problems and occipital lobe damage. She also stated that she suffers from muscle spasms, nerve pain and numbness, chronic migraine headaches, vision problems, memory loss, sleep deprivation, and depression. Taylor informed the jury that the Social Security Administration had declared her 100% disabled.
The jury saw a 23-second video recording, provided by Taylor, of the musical chairs incident. Taylor conceded that, in addition to the musical chairs incident, the video originally had contained recordings and still photos of various other events that had occurred throughout the day, but that the rest of the recording was missing. This concession led the trial court to instruct the jury on spoliation of evidence as follows:
You are instructed that if there is evidence pertinent to this case that was in the exclusive possession and control of a party and which has not been produced, and its disappearance or non-production has not been satisfactorily explained, then you may, but are not required to, presume that the missing evidence would have been unfavorable to that party.
The jury found that Washburn-Grant did not assault Taylor. The trial court denied Taylor's motion for jnov and entered a take-nothing judgment based on the verdict. Taylor timely appealed.
Taylor filed her notice of appeal on May 21, 2009. The trial court signed the final judgment on September 10, 2010. We therefore deem Taylor's notice of appeal filed as of September 10, 2010. See TEX. R. APP. P. 27.1; see also TEX. R. APP. P. 27.2 ("The appellate court may treat actions taken before an appealable order is signed as relating to an appeal of that order and give them effect as if they had been taken after the order was signed.").
Discussion
Standard of Review
We construe Taylor's issues on appeal as challenges to the denial of her motion for jnov and to the sufficiency of evidence supporting the jury's verdict. In reviewing Taylor's challenge to the verdict in favor of Washburn-Grant, we may set aside that verdict as based on legally insufficient evidence only if the evidence at trial would not enable reasonable and fair-minded people to reach the verdict under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We review the evidence in the light most favorable to the verdict, crediting evidence that supports the judgment if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Id.; see Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005).
We also review the trial court's denial of a motion for jnov under a legal sufficiency standard. Keller, 168 S.W.3d at 827 Whitney Nat'l Bank v. Baker, 122 S.W.3d 204, 207 (Tex. App.-Houston [1st] 2003, no pet.). The trial court should grant a motion for jnov when the moving party has established each element of her cause of action so conclusively that reasonable minds could not differ as to the truth of the controlling facts. See id.
Assault
The jury responded "no" to the first jury question — "Did Theresa Washburn-Grant commit an assault against Sabrina Taylor?" The elements of assault are the same in civil and criminal suits. Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 649 (Tex. App.-Houston [1st] 2005, no pet.); Morgan v. City of Alvin, 175 S.W.3d 408, 418 (Tex. App.-Houston [1st] 2004, no pet.). A person commits an assault if the person
(1) intentionally, knowingly or recklessly causes bodily injury to another, including the person's spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
TEX. PENAL CODE ANN. § 22.01(a) (Vernon Supp. 2010).
Taylor contends that Washburn-Grant's admission that she pulled the chair out intentionally during the game of musical chairs conclusively proves an assault. Washburn-Grant, however, offered a defensive theory of "no intent to injure," which disputes the offense of assault. See Ex parte Nailor, 149 S.W.3d 125, 132-33 (Tex. Crim. App. 2004).
Taylor's challenge on appeal concerns proof of assault as set forth under subsection (1) of the assault statute. See TEX. PENAL CODE ANN. § 22.01(a)(1). We therefore confine our review to the evidence relevant to that theory.
Intent
Taylor failed to conclusively prove that Washburn-Grant intentionally, knowingly, or recklessly caused Taylor's bodily injury as required to compel a finding under subsection (1) of the statute. Intentional actions that result in harm are not necessarily actions intended to cause harm. See Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985) (observing that intentional tort requires specific intent to inflict injury and holding that employer's "intentional failure to furnish a safe place to work does not rise to the level of intentional injury except when the employer believes his conduct is substantially certain to cause the injury") (citing RESTATEMENT (SECOND) OF TORTS § 8A (1965)). The jury heard evidence that Washburn-Grant reacted to Taylor's fall with concern and friendliness, and Taylor laughed and hugged her afterwards. Washburn-Grant testified that she had no intent to injure Taylor and did not know that Taylor would sustain injuries. The jury also heard evidence pertaining to the nature of the game and the level of roughhousing that ordinarily occurred to show that Washburn-Grant acted consistently with the spirit of the game of musical chairs. See, e.g., Monk v. Phillips, 983 S.W.2d 323, 325-26 (Tex. App.-Fort Worth 1998, pet. denied) (holding that golfer who shanked ball, which struck and blinded appellant, did not commit assault, observing that "the risk of being inadvertently hit by a ball struck by another competitor is built into the game of golf"). The evidence thus does not conclusively show that Washburn-Grant had the requisite intent to commit an assault so as to override the jury's finding that she did not.
Causation
Furthermore, Taylor failed to conclusively prove that the incident caused her injuries. To prove causation, Taylor relied solely on her own testimony — she did not present any competent medical testimony or any medical records. The jury heard evidence of Taylor's continued active participation in the day's events. This evidence undermines Taylor's testimony concerning the cause and extent of her injuries. Juries are free to believe all or part of conflicting witness testimony about the existence and severity of a physical injury and associated pain. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 774-75 (Tex. 2003). Finally, the spoliation instruction, which Taylor does not challenge, allowed the jury to presume that the missing videotaped material hurt Taylor's case. We hold that the trial court properly overruled Taylor's motion for jnov because she did not conclusively prove that Washburn-Grant caused her injury so as to disturb the jury's verdict to the contrary.
Conclusion
The trial court did not err in denying Taylor's motion for jnov and properly entered judgment on the verdict. We therefore affirm the judgment of the trial court. All pending motions are dismissed as moot.