Preview
Darlirig Tene?
CAUSE NO. DC-14-06458
IRMA AGUILAR, IN THE DISTRICT COURT
Plaintiff
v. 101% JUDICIAL DISTRICT
BRAUM’S, INC.,
Defendant.
LLP UD LP MO LD
DALLAS COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO DEFENDANT’S
MOTION FOR NEW TRIAL
Plaintiff files this Response to Defendant’s Motion for New Trial, and would respectfully
show in support thereof as follows.
SUMMARY OF ARGUMENT
In its Motion for New Trial, Defendant Braum’s Inc. (“Braum’s”) reasserts the same
arguments that this Court has previously rejected. After three days of testimony the jury
considered the evidence and evaluated the credibility of the witnesses. In accordance with the
overwhelming weight of the evidence presented to the jury through the testimony of the Plaintiff,
the witnesses for the defense, Plaintiff's medical records and bills (with supporting affidavits),
and the extensive video footage from the store security video camera, the jury rendered a verdict
in Plaintiff Irma Aguilar’s favor, finding that Braum’s negligence proximately caused the
occurrence in question and assigned a percentage of responsibility to Braum’s of 95%. The jury
awarded her damages for past and future pain and suffering, past and future physical impairment,
past and future loss of earning capacity, and past and future medical expenses. Braum’s offers
no new legal or factual basis for revisiting those decisions. Accordingly, this Court should deny
Braum’s motion for new trial.
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -1
FILED
DALLAS COUNTY
9/6/2019 11:22 AM
FELICIA PITRE
-T CLERKSUMMARY OF THE EVIDENCE
The evidence admitted at trial reveals a straightforward premises liability case. The jury
heard from the Plaintiff, Irma Aguilar, who testified that on or about Sunday, August 5, 2012,
Plaintiff went to to the Defendant’s ice cream store, located at 1815 Northwest Highway, in
Garland, Dallas County, Texas 75041, to eat some ice cream after church with her husband. As
she was leaving the store, Irma slipped and fell on some water that had been tracked to the area
from another area of the store where there was a large puddle of water underneath and around the
self-serve drink machine in the dining room of the restaurant. Irma testified that there was a
“wet floor” sign next to the puddle of water under/around the drink machine, but there were no
other “wet floor” signs out anywhere else in the store — including the area where she fell. Irma
was badly hurt and had to be taken to the ER by ambulance. The jury also saw the maintenance
records from the store that were admitted into evidence and showed that there had been a chronic
problem with the plumbing of the drink machine, resulting in water pooling underneath it, for
several months prior to the accident. The jury saw video footage from the store security video
camera covering the dining area, which showed that in the approximately one hour prior to the
accident, roughly 40 people walked through the narrow walkway where the water was pooled
and into the area where Irma fell. The video footage also showed that not one of the Braum’s
employees tried to mop up or remove the water from the floor during that time. The jury also
heard the General Manager of the store and the Manager on Duty at the time of the incident
testify that if a customer walks through liquid on the floor in one area, that liquid may get spread
to other areas of the store. The jury also saw video footage which contradicted the Incident
Report filled out by the Manager on Duty at the time of the accident, Ashely Occius, which
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -2incorrectly represented that there was a “wet floor” sign in the area where Irma fell — the video
footage showed that the “wet floor” sign was only placed there after Irma fell.
The jury heard testimony from Irma, and saw the medical records and bills from Irma’s
medical providers, that discussed in great detail the injuries that Irma suffered as a result of her
fall in the store and the effect that the injuries had on her — physically, mentally, emotionally, and
financially - over the almost 7 years since the date of her accident, as well as the effects that she
would likely continue to suffer in the future. The jury also saw the medical bills from Irma’s
treatments as a result of the incident in question, and the medical records and statement from
Irma’s doctor stating that she would need surgery to repair the injuries to her shoulder caused by
the fall, as well as the cost of the surgery.
AUTHORITIES
The Court’s discretion to grant a new trial is broad but not unfettered. Jn re Toyota
Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 756 (Tex. 2013) (orig. proceeding). The Court may
grant a new trial for “good cause,” Tex. R. Civ. P. 320, and its reasons for doing so must be
legally appropriate and substantively valid. In re Toyota Motor Sales, 407 S.W.3d at 759; In re
United Scaffolding, Inc., 377 S.W.3d 685, 688 (Tex. 2012) (orig. proceeding). Here, Braum’s
failed to show good cause for a new trial. Giving the jury more than a mere scintilla of evidence,
and enabling “reasonable and fair-minded people to differ in their conclusions” is legally
sufficient to support a judgment. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
The evidence is factually sufficient so long as the judgment is not “so against the great weight
and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -3demonstrates bias.” In re J.F.C., 96 S.W.3d 259, 264 (Tex. 2002) (orig. proceeding) (quoting Jn
re C.H., 89 §.W.3d 17, 25 (Tex. 2002) (orig. proceeding)).
ARGUMENT
A. The Evidence is More than Sufficient to Support the Jury’s Verdict.
Braum’s claims that the evidence is factually insufficient to support the jury’s answers to
Questions 1, 2, and 3 of the Jury Charge. In support of its claims, Braum’s makes essentially the
same arguments that it made in its Motion for Summary Judgment, its Motion for Directed
Verdict, and its Motion for JNOV — which the Court, in its wisdom, denied each time.
With regard to Braum’s argument that there is not enough evidence to support the jury’s
finding in Question Number | that Braum’s was negligent, Plaintiff would show that the jury
heard testimony from Plaintiff, as well as from two Braum’s employees, and saw extensive
footage from the store security video camera of the area in question — evidence that is legally
sufficient to support a judgment because it clearly gave the jury more than a mere scintilla of
evidence, and was enough to enable reasonable and fair-minded people to differ in their
conclusions.. City of Keller, at 822. The evidence provided at trial was factually sufficient
because the judgment is not “so against the great weight and preponderance of the evidence that
it is manifestly unjust, shocks the conscience, or clearly demonstrates bias.” Jn re J.F.C., at 264.
In this case, the evidence admitted at trial is far more than sufficient to establish Braum’s
liability. The evidence established that Braum’s had a chronic problem with the drink dispensing
machine in the dining room leaking water for several months prior to the day of the incident in
question. The evidence also established that Braum’s chose not to turn off the water to the drink
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -4machine, close off the area, mop the water up, put mats out on the floor, or make any number of
other reasonable efforts to prevent a dangerous condition from existing in its dining room.
Rather, the evidence shows that Braum’s chose instead to leave the water on the floor in a
narrow, high-traffic area of the dining room (despite knowing that doing so would likely cause
someone to track the water to other areas of the store), with only a single “wet floor” sign next to
the puddle of water at the base of the drink machine. The evidence further showed that despite
knowing that water would likely get tracked into the other areas of the store, thus causing a
dangerous condition to exist in those areas, Braum’s did not put any “wet floor” signs in those
areas to warn customers of the dangerous condition(s) that would almost certainly be caused by
their decision to leave the original dangerous condition in place. The evidence of Braum’s
negligence is not only legally and factually sufficient — it is overwhelming.
Braum’s also claims that the evidence was factually insufficient to support the jury’s
answers to Question Number 2, which asked the jury to assign a percentage of responsibility
attributable to each of the parties for causing or contributing to cause the occurrence at issue in
this lawsuit. The jury’s answer to this question was that 95% of the liability lay with Braum’s.
Repeating its arguments in support of its claim, Braum’s asks the Court to grant a new trial on all
issues. Again, Plaintiff would respectfully state that the evidence of Braum’s liability is not only
legally and factually sufficient to support the jury’s findings, but it is overwhelming.
Finally, Braum’s asserts that the evidence is factually insufficient to support the jury’s
answers to Question Number 3, which asked the jury to award monetary damages to Plaintiff for
her past and future physical pain, past and future mental anguish (although Braum’s is not
contesting the jury’s answers to these parts because the jury did not award any damages for
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -5mental anguish), past and future physical impairment, past and future loss of earning capacity, as
well as past and future medical expenses.
Here, Braum’s not only argues that the evidence is factually insufficient, but Braum’s
also argues that a significant portion of the evidence that was admitted (specifically, the medical
bills and records — and accompanying affidavits) pursuant to CPRC 18.001 et seg. (supporting
the damage awards by the jury) should not have been admitted into evidence in the first place.
This is merely a repetition of the same arguments that Braum’s made when Plaintiff filed her
medical bills and records (with supporting affidavits), which Court heard fully during Motions in
Limine immediately prior to the start of trial (and during trial), and in Defendant’s Motion for
JNOV after trial — which the Court, in its wisdom, denied each time.
Plaintiff would respectfully state in response that totality of the Plaintiff's extensive
testimony and the voluminous medical records and bills (supported by affidavits) presented to
the jury at trial, the evidence is not only legally and factually sufficient to support the jury’s
damage awards, but it is overwhelming.
For these reasons, Plaintiff respectfully argues that the Court should deny Braum’s
Motion for New Trial.
B. THE COURT SHOULD DENY BRAUM’S MOTION FOR REMITTITUR
Finally, Braum’s asks the Court that the judgment be remitted because the damages
awarded by the jury are excessive, considering all the evidence. In support of its motion for
remittitur, Braum’s reasserts its prior arguments, and Plaintiff will not repeat them here — but
rather will only respectfully state that there is overwhelming evidence in support of the jury’s
findings and no basis for remittitur in this case.
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -6WHEREFORE, PREMISES CONSIDERED, Plaintiff Irma Aguilar prays that this Court
deny Defendant’s Motion for New Trial and Defendant’s Alternative Motion for Remittitur and
award Plaintiff such other and further relief, at law or in equity, to which Plaintiff may be justly
entitled.
Respectfully submitted,
BALON B. BRADLEY
SBN: 02821700
Balon@bbradleylaw.com
ANDREW D. HAWKINS
SBN: 24041068
Andrew@adhawklaw.com
11910 Greenville Avenue, Suite 220
Dallas, Texas 75243
Telephone: (972) 991-1582
Facsimile: (972) 755-0424
ATTORNEYS FOR PLAINTIFF
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL PAGE -7CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing instrument has been
forwarded via Fax No. (214) 712-9540 and eService on this the 6th day of September, 2019 to:
Kyle Burke
Email: Kyle. Burke@cooperscully.com
William F. Allred
Email: William.Allred@cooperscully.com
Amy Agnew
Email: Amy.Agnew@cooperscully.com
Cooper & Scully, P.C.
Founders Square 900 Jackson Street, Ste. 100
Dallas, TX 75202
Tel: 214-712-9500
Fax: 214-712-9540
ATTORNEY FOR DEFENDANT
Andrew D. Hawkins
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL.
PAGE -8
Preview
Darlirig Tene? CAUSE NO. DC-14-06458 IRMA AGUILAR, IN THE DISTRICT COURT Plaintiff v. 101% JUDICIAL DISTRICT BRAUM’S, INC., Defendant. LLP UD LP MO LD DALLAS COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL Plaintiff files this Response to Defendant’s Motion for New Trial, and would respectfully show in support thereof as follows. SUMMARY OF ARGUMENT In its Motion for New Trial, Defendant Braum’s Inc. (“Braum’s”) reasserts the same arguments that this Court has previously rejected. After three days of testimony the jury considered the evidence and evaluated the credibility of the witnesses. In accordance with the overwhelming weight of the evidence presented to the jury through the testimony of the Plaintiff, the witnesses for the defense, Plaintiff's medical records and bills (with supporting affidavits), and the extensive video footage from the store security video camera, the jury rendered a verdict in Plaintiff Irma Aguilar’s favor, finding that Braum’s negligence proximately caused the occurrence in question and assigned a percentage of responsibility to Braum’s of 95%. The jury awarded her damages for past and future pain and suffering, past and future physical impairment, past and future loss of earning capacity, and past and future medical expenses. Braum’s offers no new legal or factual basis for revisiting those decisions. Accordingly, this Court should deny Braum’s motion for new trial. PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -1 FILED DALLAS COUNTY 9/6/2019 11:22 AM FELICIA PITRE -T CLERKSUMMARY OF THE EVIDENCE The evidence admitted at trial reveals a straightforward premises liability case. The jury heard from the Plaintiff, Irma Aguilar, who testified that on or about Sunday, August 5, 2012, Plaintiff went to to the Defendant’s ice cream store, located at 1815 Northwest Highway, in Garland, Dallas County, Texas 75041, to eat some ice cream after church with her husband. As she was leaving the store, Irma slipped and fell on some water that had been tracked to the area from another area of the store where there was a large puddle of water underneath and around the self-serve drink machine in the dining room of the restaurant. Irma testified that there was a “wet floor” sign next to the puddle of water under/around the drink machine, but there were no other “wet floor” signs out anywhere else in the store — including the area where she fell. Irma was badly hurt and had to be taken to the ER by ambulance. The jury also saw the maintenance records from the store that were admitted into evidence and showed that there had been a chronic problem with the plumbing of the drink machine, resulting in water pooling underneath it, for several months prior to the accident. The jury saw video footage from the store security video camera covering the dining area, which showed that in the approximately one hour prior to the accident, roughly 40 people walked through the narrow walkway where the water was pooled and into the area where Irma fell. The video footage also showed that not one of the Braum’s employees tried to mop up or remove the water from the floor during that time. The jury also heard the General Manager of the store and the Manager on Duty at the time of the incident testify that if a customer walks through liquid on the floor in one area, that liquid may get spread to other areas of the store. The jury also saw video footage which contradicted the Incident Report filled out by the Manager on Duty at the time of the accident, Ashely Occius, which PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -2incorrectly represented that there was a “wet floor” sign in the area where Irma fell — the video footage showed that the “wet floor” sign was only placed there after Irma fell. The jury heard testimony from Irma, and saw the medical records and bills from Irma’s medical providers, that discussed in great detail the injuries that Irma suffered as a result of her fall in the store and the effect that the injuries had on her — physically, mentally, emotionally, and financially - over the almost 7 years since the date of her accident, as well as the effects that she would likely continue to suffer in the future. The jury also saw the medical bills from Irma’s treatments as a result of the incident in question, and the medical records and statement from Irma’s doctor stating that she would need surgery to repair the injuries to her shoulder caused by the fall, as well as the cost of the surgery. AUTHORITIES The Court’s discretion to grant a new trial is broad but not unfettered. Jn re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 756 (Tex. 2013) (orig. proceeding). The Court may grant a new trial for “good cause,” Tex. R. Civ. P. 320, and its reasons for doing so must be legally appropriate and substantively valid. In re Toyota Motor Sales, 407 S.W.3d at 759; In re United Scaffolding, Inc., 377 S.W.3d 685, 688 (Tex. 2012) (orig. proceeding). Here, Braum’s failed to show good cause for a new trial. Giving the jury more than a mere scintilla of evidence, and enabling “reasonable and fair-minded people to differ in their conclusions” is legally sufficient to support a judgment. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The evidence is factually sufficient so long as the judgment is not “so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -3demonstrates bias.” In re J.F.C., 96 S.W.3d 259, 264 (Tex. 2002) (orig. proceeding) (quoting Jn re C.H., 89 §.W.3d 17, 25 (Tex. 2002) (orig. proceeding)). ARGUMENT A. The Evidence is More than Sufficient to Support the Jury’s Verdict. Braum’s claims that the evidence is factually insufficient to support the jury’s answers to Questions 1, 2, and 3 of the Jury Charge. In support of its claims, Braum’s makes essentially the same arguments that it made in its Motion for Summary Judgment, its Motion for Directed Verdict, and its Motion for JNOV — which the Court, in its wisdom, denied each time. With regard to Braum’s argument that there is not enough evidence to support the jury’s finding in Question Number | that Braum’s was negligent, Plaintiff would show that the jury heard testimony from Plaintiff, as well as from two Braum’s employees, and saw extensive footage from the store security video camera of the area in question — evidence that is legally sufficient to support a judgment because it clearly gave the jury more than a mere scintilla of evidence, and was enough to enable reasonable and fair-minded people to differ in their conclusions.. City of Keller, at 822. The evidence provided at trial was factually sufficient because the judgment is not “so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias.” Jn re J.F.C., at 264. In this case, the evidence admitted at trial is far more than sufficient to establish Braum’s liability. The evidence established that Braum’s had a chronic problem with the drink dispensing machine in the dining room leaking water for several months prior to the day of the incident in question. The evidence also established that Braum’s chose not to turn off the water to the drink PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -4machine, close off the area, mop the water up, put mats out on the floor, or make any number of other reasonable efforts to prevent a dangerous condition from existing in its dining room. Rather, the evidence shows that Braum’s chose instead to leave the water on the floor in a narrow, high-traffic area of the dining room (despite knowing that doing so would likely cause someone to track the water to other areas of the store), with only a single “wet floor” sign next to the puddle of water at the base of the drink machine. The evidence further showed that despite knowing that water would likely get tracked into the other areas of the store, thus causing a dangerous condition to exist in those areas, Braum’s did not put any “wet floor” signs in those areas to warn customers of the dangerous condition(s) that would almost certainly be caused by their decision to leave the original dangerous condition in place. The evidence of Braum’s negligence is not only legally and factually sufficient — it is overwhelming. Braum’s also claims that the evidence was factually insufficient to support the jury’s answers to Question Number 2, which asked the jury to assign a percentage of responsibility attributable to each of the parties for causing or contributing to cause the occurrence at issue in this lawsuit. The jury’s answer to this question was that 95% of the liability lay with Braum’s. Repeating its arguments in support of its claim, Braum’s asks the Court to grant a new trial on all issues. Again, Plaintiff would respectfully state that the evidence of Braum’s liability is not only legally and factually sufficient to support the jury’s findings, but it is overwhelming. Finally, Braum’s asserts that the evidence is factually insufficient to support the jury’s answers to Question Number 3, which asked the jury to award monetary damages to Plaintiff for her past and future physical pain, past and future mental anguish (although Braum’s is not contesting the jury’s answers to these parts because the jury did not award any damages for PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -5mental anguish), past and future physical impairment, past and future loss of earning capacity, as well as past and future medical expenses. Here, Braum’s not only argues that the evidence is factually insufficient, but Braum’s also argues that a significant portion of the evidence that was admitted (specifically, the medical bills and records — and accompanying affidavits) pursuant to CPRC 18.001 et seg. (supporting the damage awards by the jury) should not have been admitted into evidence in the first place. This is merely a repetition of the same arguments that Braum’s made when Plaintiff filed her medical bills and records (with supporting affidavits), which Court heard fully during Motions in Limine immediately prior to the start of trial (and during trial), and in Defendant’s Motion for JNOV after trial — which the Court, in its wisdom, denied each time. Plaintiff would respectfully state in response that totality of the Plaintiff's extensive testimony and the voluminous medical records and bills (supported by affidavits) presented to the jury at trial, the evidence is not only legally and factually sufficient to support the jury’s damage awards, but it is overwhelming. For these reasons, Plaintiff respectfully argues that the Court should deny Braum’s Motion for New Trial. B. THE COURT SHOULD DENY BRAUM’S MOTION FOR REMITTITUR Finally, Braum’s asks the Court that the judgment be remitted because the damages awarded by the jury are excessive, considering all the evidence. In support of its motion for remittitur, Braum’s reasserts its prior arguments, and Plaintiff will not repeat them here — but rather will only respectfully state that there is overwhelming evidence in support of the jury’s findings and no basis for remittitur in this case. PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -6WHEREFORE, PREMISES CONSIDERED, Plaintiff Irma Aguilar prays that this Court deny Defendant’s Motion for New Trial and Defendant’s Alternative Motion for Remittitur and award Plaintiff such other and further relief, at law or in equity, to which Plaintiff may be justly entitled. Respectfully submitted, BALON B. BRADLEY SBN: 02821700 Balon@bbradleylaw.com ANDREW D. HAWKINS SBN: 24041068 Andrew@adhawklaw.com 11910 Greenville Avenue, Suite 220 Dallas, Texas 75243 Telephone: (972) 991-1582 Facsimile: (972) 755-0424 ATTORNEYS FOR PLAINTIFF PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL PAGE -7CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing instrument has been forwarded via Fax No. (214) 712-9540 and eService on this the 6th day of September, 2019 to: Kyle Burke Email: Kyle. Burke@cooperscully.com William F. Allred Email: William.Allred@cooperscully.com Amy Agnew Email: Amy.Agnew@cooperscully.com Cooper & Scully, P.C. Founders Square 900 Jackson Street, Ste. 100 Dallas, TX 75202 Tel: 214-712-9500 Fax: 214-712-9540 ATTORNEY FOR DEFENDANT Andrew D. Hawkins PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL. PAGE -8