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Affirmed and Opinion on Remand filed August 22,
2002.
In
The
Fourteenth
Court of Appeals
____________
NO. 14-97-00153-CV
____________
TEXAS A & M
UNIVERSITY,
Appellant
V.
PAUL A.
BISHOP,
Appellee
On Appeal from the 212th District
Court
Galveston County, Texas
Trial Court Cause No. 94CV0958
O P I N I
O N O N R E M A N D
This appeal arises from a suit
for personal injuries suffered by Paul A. Bishop while portraying
AVlad Dracula@ in a play performed by the
Texas A & M University at Galveston Drama Club. Texas A & M University (TAMU)
challenges the judgment in favor of Bishop in eleven points of error. In our original opinion, we found
legally insufficient evidence to support the jury=s findings that Michael and
Diane Wonio, Dr. Stephen Curley, and Dr. Melanie Lesko were employees of
TAMU on the occasion in question.
Therefore, we reversed and rendered judgment in favor of TAMU. The supreme court reversed,
holding that legally sufficient evidence supported the jury=s finding that Drs. Curley and
Lesko were employees at the time of the occurrence. Bishop v. Texas A & M
Univ., 35 S.W.3d 605, 607 (Tex. 2000). The case was remanded to our court
for review of remaining issues.
We affirm.
Facts
In the Spring of 1994, the
Drama Club of Texas A & M University at Galveston decided to perform
the play, ADracula@ and a member of the club
telephoned Michael Wonio, a local Galveston actor and director, who had
directed previous Drama Club plays.
Wonio agreed to direct the play. His wife, Diane Wonio, assisted
with props and choreography of fight scenes. In one of the final scenes of the
play, the character of Jonathan Harker impales Vlad Dracula with a
knife. Diane Wonio prepared a
stab pad for Bishop, as Vlad Dracula, to wear during this scene because
the Wonios determined that the scene required use of a real knife. The stab pad was strapped to
Bishop=s chest with a target
visible. Dennis Rittenhouse,
another student, played the part of Jonathan Harker. On the night of the incident in
question, Rittenhouse swung the knife, missed the stab pad, and stabbed
Bishop in the chest.
Bishop was taken by ambulance
to a hospital emergency room, where it was determined that the knife had
penetrated Bishop=s lung, causing a pneumothorax,
or collapsed lung. Bishop
remained in the hospital for eight days. Bishop testified that his grade
point average declined and he continues to experience weakness, insomnia,
and nightmares.
Bishop filed this negligence
suit against TAMU, Drama Club faculty advisors, Drs. Stephen Curley and
Melanie Lesko, and the Wonios alleging negligence. The Wonios settled with Bishop
before trial. The case was
then tried to a jury only on claims of negligence against the Wonios and
Drs. Curley and Lesko as employees of TAMU. The jury found the Wonios and the
Drama Club faculty advisors acted as employees on the night in question
and were negligent in the use of tangible personal property. The jury awarded Bishop $350,000
in damages. After an off-set
for settlement credit, the trial court rendered judgment for
$250,000.
Sufficiency of the Evidence of
Employee Status
In its first two points of
error, TAMU asserts the trial court erred in overruling its motion for
judgment notwithstanding the verdict and its motion for new trial because
there was legally or factually insufficient evidence to support the
jury=s answer to question number
one, regarding which individuals were TAMU=s employees. Question one asked the jury if
Mike and Diane Wonio, Stephen Curley, and Melanie Lesko, were acting as
employees of the university on the occasion in question. In its opinion, the supreme court
addressed the issue whether the evidence was legally sufficient to support
the jury=s findings that Drs. Curley and
Lesko were TAMU employees at the time of Bishop=s injury. Bishop, 35 S.W.3d at
607. The supreme court found
that there was legally sufficient evidence and thus, held that TAMU could
be held liable for the employees= negligence.[1] Id. Thus, we first address whether the
evidence is factually sufficient to support the jury finding with respect
to Drs. Curley and Lesko.
1. Drs. Curley and
Lesko
In deciding factual sufficiency
questions, the appellate court must review all of the evidence. Lofton v. Tex. Brine Corp.,
720 S.W.2d 804, 805 (Tex. 1986).
The court may set aside the finding only if the evidence is so weak
as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d
175, 176 (Tex. 1986).
Further, when reversing a trial court's judgment after concluding
the supporting evidence is insufficient, the court of appeals must detail
the relevant evidence introduced at trial and clearly state why the jury's
finding is factually insufficient.
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). The court should state in what
regard the contrary evidence greatly outweighs the evidence supporting the
jury's verdict. Id.;
Alm v. Aluminum Co. of America, 717 S.W.2d 588
(Tex.1986).
The instructions for jury
question one stated that an employee is not a volunteer, but is a person
in the paid service of the university. The instruction further stated an
employee is not an independent contractor or a person who performs tasks,
the details of which the university does not have the legal right to
control.
In Texas, a governmental unit
is immune from tort liability unless the Legislature has waived
immunity. Dallas County
Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341
(Tex. 1998); Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177
(Tex.1994). A state agency
such as TAMU shares this governmental immunity. Lowe v. Tex. Tech Univ.,
540 S.W.2d 297, 298 (Tex. 1976).
The Texas Tort Claims Act provides for a limited waiver of
governmental immunity under specified circumstances. Id.; Tex. Civ. Prac. & Rem. Code
Ann. ' 101.021 (Vernon 1997). Under the act, a governmental unit
may be held liable for personal injury caused by a condition or use of
tangible personal property if the governmental unit would, were it a
private person, be held liable under Texas law. Id. at (2). A governmental entity can be held
liable for personal injuries only through the acts of its employees. Dumas v. Muenster Hosp.
Dist., 859 S.W.2d 648, 650 (Tex. App.BFort Worth 1993, no writ). The Act defines Aemployee@ as a Aperson, including an officer or
agent, who is in the paid service of a governmental unit by competent
authority, but does not include an independent contractor, an agent or
employee of an independent contractor, or a person who performs tasks the
details of which the governmental unit does not have the legal right to
control.@ Tex. Civ. Prac. & Rem. Code
Ann. ' 101.001(2) (Vernon Supp.
2002).
The evidence shows that Dr.
Curley is employed by TAMU as a professor of English and head of the
Department of General Academics.
Dr. Lesko teaches organic chemistry and is Assistant Department
Head of the Degreed Science Department. Thus, there was evidence Drs.
Curley and Lesko were paid employees of the university for their academic
positions. Drs. Curley and
Lesko also acted as faculty advisors to the Drama Club. A number of witnesses testified
that faculty advisors were volunteers and were not paid for this
service. Volunteers are not
included in the Texas Tort Claims Act definition of Aemployee.@ Harris County v. Dillard,
883 S.W.2d 166, 167 (Tex. 1994).
A review of the record reveals no testimony establishing that the
faculty advisors were paid for performing the non-academic role of faculty
advisor to the Drama Club.
Nontheless, both Curley and
Lesko testified that TAMU encouraged its faculty to serve as advisors and
sponsors to student organizations and activities. Dr. Curley agreed that, although
serving as a faculty advisor to a student organization is not a separately
paid service to the university, it is a positive addition to his
resume. Dr. Lesko testified
that additional faculty activities, such as serving as a faculty advisor
to student organizations, are considered by her superiors in her annual
review and affect her compensation, particularly given that she is on a
tenure track. Thus, there is
some evidence that the faculty advisors received a benefit from their
service.
Furthermore, certain policies
and procedures of TAMU require faculty advisors to know the rules
pertaining to student organizations, to be aware of liability issues, and
to advise the organization concerning activities. All university recognized student
organizations are required to have a faculty advisor. There was testimony that Drs.
Curley and Lesko, as faculty advisors to the drama club, were responsible
for enforcing TAMU policies, including the university prohibition against
guns on campus. Thus, through
the faculty advisors, the university had a right of control over the
student organization activities to the extent they followed school
policies and procedures. We
find the evidence is factually sufficient to support the jury finding that
Drs. Curley and Lesko were employees of TAMU at the time of the incident
in question.
2. The Wonios
TAMU next challenges the legal
and factual sufficiency of the evidence supporting the jury=s findings that Michael and
Diane Wonio were employees of TAMU at the time of the occurrence. Having already upheld the
jury=s finding that the faculty
advisors were employees, TAMU can be held vicariously liable for the
employees= negligence, and therefore, we
need not address the Wonios= status. Bishop, 35 S.W.3d at 606.
Instructions on Independent
Contractor Status
In point of error three, TAMU
claims the trial court erred in denying appellant=s motions for instructed
verdict on the issue of an independent contractor not constituting a
person who is in the paid service of the unit of government. In point of error four, TAMU
challenges the trial court=s denial of a requested
instruction regarding the definition of an independent contractor. Because TAMU only argues that the
Wonios were independent contractors, and we have already held that TAMU
can be held vicariously liable for the negligence of the faculty advisors,
we need not address these issues.
Bishop, 35 S.W.3d at 606.
Negligent
Use of Tangible Personal Property
In points of error five and
six, TAMU challenges the jury=s finding in response to
question two that the Wonios[2]
and Drs. Curley and Lesko were negligent. Appellant claims there is no
evidence, or alternatively, insufficient evidence, that any of these
individuals used the knife that caused the personal injuries in this
case. In point of error
seven, appellant challenges the trial court=s denial of
appellant=s requested instruction 2,
which would have advised the jury that neither negligent supervision nor
the university=s decision whether to develop
policies and procedures constitutes use of tangible personal
property.
Under the Texas Tort Claims
Act, Atangible property@ is property that is capable of
being handled, touched or seen.
Robinson v. City of San Antonio, 727 S.W.2d 40, 43 (Tex.
App.BSan Antonio 1987, writ
ref=d n.r.e.). For Ause@ of property to occur under the
Act, one must A>put or bring [the property]
into action or service; to employ for or apply to a given
purpose=.@ Kerrville State Hosp. v.
Clark, 923 S.W.2d 582, 584 (Tex. 1996)(citing Mount Pleasant Indep.
Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208 (Tex.
1989)).
The case law is conflicting in
this area. As this court has
said, A[i]t is technically possible to
characterize any imaginable action as a case involving use of tangible
personalty.@ Lowe v. Harris County Hosp.
Dist., 809 S.W.2d 502, 504 (Tex. App.BHouston [14th Dist.] 1989, no
writ). For example,
Ause@ of tangible property has been
held to include non-use in some cases. See Lowe v. Tex. Tech
Univ., 540 S.W.2d 297 (Tex. 1976) (failure of Texas Tech coaching
staff to furnish proper equipment found to be tantamount to providing
inappropriate equipment thereby constituting use of tangible property);
Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169 (Tex. 1989)
(failure of MHMR employees to provide life preserver to patient with
epilepsy and occasional seizures held to be tantamount to providing
inappropriate equipment as in Lowe). More recently, the supreme court
has specifically classified these cases as the Aouter bounds@ of what can be classified as
Ause.@ Kerrville State Hosp., 923
S.W.2d at 585. Although both
Lowe and Robinson involve the non-use of property, the court
has subsequently asserted that it did not intend in deciding those cases
to allow both use and non-use of property to result in a waiver of
immunity because such a result would essentially abolish the governmental
immunity. Id. Accordingly, the court has held
that the precedential value of Lowe and Robinson is limited
to Aclaims in which a plaintiff
alleges that a state actor has provided property that lacks an integral
safety component and that the lack of this integral component led to the
plaintiff=s injuries.@
Id.
Bishop argued in this case that
TAMU is liable for the negligent exercise of its assumption of
responsibility for the proper use of tangible personal property, which in
this case was the knife. This
allegation essentially alleges a failure to properly supervise the
students in their use of tangible property. The supreme court has not yet
addressed the issue whether negligent supervision can be a use of tangible
property under the statute, but the courts of appeals have addressed this
issue and are split. Some
intermediate appellate courts have held that a failure to supervise does
not fall within the statutory definition of use of property. See Laman v. Big Spring
State Hosp., 970 S.W.2d 670 (Tex. App.BEastland 1998, pet.
denied)(holding that failure of hospital staff to supervise sedated
patient was not use or condition of tangible property); Hein v. Harris
County, 557 S.W.2d 366 (Tex. Civ. App.BHouston [1st Dist.] 1977, writ
ref=d n.r.e.)(negligence of
supervisory employees in creating or permitting the existence of
conditions that may have influenced employee to secure a pistol did not
establish sufficient relationship between supervisory employees and use of
the pistol to bring claim within Tort Claims Act); Gonzales v. Lubbock
State Sch., 487 S.W.2d 815 (Tex. Civ. App.BAmarillo 1972, no
writ)(allegation of negligent supervision did not assert that the
negligence was in the execution of any formulated personnel policy for
which defendant might be liable).[3] Other courts, however, have found
a use of property where the allegation was negligent supervision. See Sem v. State, 821
S.W.2d 411 (Tex. App.BFort Worth 1991, no writ)(found
proof sufficient to raise a fact issue whether the State retained
sufficient control over the work such that it owed a duty to the
contractor=s employees to exercise
reasonable care in its control or supervision of placement of warning
signs to protect highway workers); Smith v. Univ. of Tex., 664
S.W.2d 180 (Tex. App.BAustin 1984, writ
ref=d n.r.e.)(finding trial court
erred in granting summary judgment to university where appellant alleged
negligent use of tangible real and personal property in the failure to
supervise use of the real and personal property). Although the supreme court has not
specifically addressed the question whether negligent supervision
constitutes use of tangible personal property under the statute, the
supreme court has mentioned the Smith case in a subsequent opinion
without passing on the merits of Smith.[4]
In Smith, the plaintiff
was a volunteer official at the shot put competition and was injured when
he was struck in the head by a shot.
664 S.W.2d at 184.
Smith alleged his injury was caused by the negligence of certain
university officials in failing to properly supervise volunteer
officials= use of real and personal
property. Id. The court found this raised an
allegation of negligence in the use of tangible personal property under
the Tort Claims Act.
Id. The court
also offered the following analysis regarding supervision of
non-employees:
This brings us to the question: if the University
were a private corporation which had a paid employee whose responsibility
it was to oversee work to be done, with authority to appoint unpaid
volunteer officials to assist in the work to be done (here, the conduct of
the track meet and the shot-put event) and such paid employee was
negligent in the performance of his appointed duties, would the private
corporation be liable under the doctrine of respondeat superior for
the negligence of the appointed, unpaid volunteer in carrying out his
appointed duties? We hold
that liability does exist under such circumstances.
Id. at 190. This is analogous to the situation
presented here. The faculty
advisors had the responsibility to oversee the conduct of the Drama Club,
at least to the extent that university policies and regulations were
followed. By failing to
supervise the Wonios and the Drama Club, the university can be held
liable.
The case of Christilles v.
Southwest Texas State University, 639 S.W.2d 38 (Tex. App.BAustin 1982, writ
ref=d n.r.e.) is also
illuminating. In
Christilles, a drama student was injured when the drinking glass
he was holding during a dress rehearsal shattered and caused extensive
nerve and tendon damage.
Id. at 39. The
production was directed by a university employee who made the decision to
use a breakable glass.
Id. The court
found a use of tangible personal property where the plaintiff pleaded and
proved his Ainjury resulted from the use of
property either defective or inappropriate (use of breakable drinking
glass rather than a safer one).@ Id. at 41. Similarly, Bishop=s pleading and proof of use of
a real knife constituted proof of the use of property inappropriate for
the purpose for which it was used.
Thus, we hold that the failure
to properly supervise the Drama Club and its use of stage props (in this
case, the knife) is a negligent use of tangible personal property. Because Bishop alleged that TAMU
employees were negligent in their supervision of the Drama
Club=s use of stage props such as
the knife in this case, this raised an allegation of negligent use of
personal property under the Tort Claims Act. Thus, the trial court did not err
in denying a requested instruction to question 2, instructing the jury
that the decision to develop or not develop policies and procedures and
negligent supervision do not constitute Ause@ of tangible personal
property. Having found that
this allegation is viable, we next turn to the complaint that the evidence
was insufficient to support the jury=s affirmative finding on this
issue.
The record shows that TAMU
encouraged faculty members to act as advisors to student organizations,
such as the Drama Club.
Policies and procedures at TAMU require faculty advisors to student
organizations to know and enforce university rules, including the
university prohibition against weapons on campus. Testimony also showed that faculty
advisors were responsible for advising student organizations so they could
make reasonable and prudent decisions in planning activities. Finally, there was testimony that
faculty advisors were to attend the meetings or rehearsals of student
organizations when possible.
In this case, the record shows the faculty advisors never attended
any rehearsals for the play.
Testimony showed that the university, through its faculty advisors,
had a right of control over the student activities, such as the direction
of the play and use of props in this case. We find this evidence sufficient
to support the jury=s finding that the faculty
advisors were negligent in supervising the use of tangible personal
property.
In point of error 8, TAMU
claims the trial court erred in denying appellant=s motion for instructed verdict
both of which address the issue that sovereign immunity has not been
waived unless an employee=s use of tangible personal
property proximately causes injury to the plaintiff. Under these points, appellant
argues that negligent supervision is not a use of tangible personal
property and, therefore, there is no proximate cause. Alternatively, appellant argues
that the trial court should have allowed an instruction that negligent
supervision is not a use of tangible property. Because we have already held that
negligent supervision is a use of tangible personal property,
TAMU=s arguments
fail.
Official
Immunity
TAMU next argues that, if we
find the faculty advisors and the Wonios were employees, then the trial
court erred in denying appellant=s requested instruction and in
denying appellant=s motion for instructed verdict
on the defense of official immunity.
Appellee responds that appellant is not entitled to the defense of
official immunity because that defense is only for claims based on the
exercise of governmental discretion.
Case law states that official
immunity may protect state employees who are sued in their individual
capacities, see, e.g., Jackson v. Stinnett, 881 S.W.2d 498, 500
(Tex. App.--El Paso 1994, no writ), and if the employee is protected from
liability by official immunity, the governmental entity retains its
sovereign immunity. DeWitt
v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995). In other words, although official
immunity protects state employees from individual liability, the state
entity may benefit from the employee=s official immunity even if the
employee is not sued individually.
Because the state entity only acts through its employees, it should
benefit from a defense that benefits state employees.
The purpose of official
immunity is to insulate the functioning of government from the harassment
of litigation, not to protect erring officials. Kassen v. Hatley, 887
S.W.2d 4, 8 (Tex. 1994). The
elements of the defense are (1) the performance of a discretionary
function (2) in good faith (3) within the scope of the
employee=s authority. Kassen, 887 S.W.2d at 9;
City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.
1994). Appellee argues that
the defense of official immunity only applies if the discretionary acts
are governmental in nature.
In support of this argument, appellee cites City of Columbus v.
Barnstone, 921 S.W.2d 268 (Tex. App.--Houston [1st Dist.] 1995, no
writ) and Baker v. Story, 621 S.W.2d 639 (Tex. Civ. App.--San
Antonio 1981, writ ref=d n.r.e.). In Baker, the court noted
that Texas courts distinguish judicial officers, quasi-judicial personnel,
and ministerial functionaries, finding that judicial officers have
absolute immunity as long as they have jurisdiction and that
quasi-judicial personnel have immunity as long as they act in good faith
within the scope of their authority.
621 S.W.2d at 644.
Since Baker was decided, however, the supreme court has
provided more guidance regarding the scope of official
immunity.
In Kassen v.
Hatley, the court addressed whether medical doctors who work for a
government institution are entitled to official immunity. 887 S.W.2d at 9. The court determined that, in the
case of medical personnel, there must be a distinction between
governmental and medical discretion.
Id. at 11.
Thus, the court found that, if the doctor was exercising purely
medical discretion at the time of the injury, official immunity could not
arise. Id. The court added that, in making
the determination whether the discretion exercised by the employee is
governmental or not, the courts must focus on the facts of the individual
case and the underlying policies promoted by official immunity. Id. For example, the court implied in
Kassen that, if the doctors had been performing policy-making or
administrative responsibilities, not shared by private-sector doctors,
they would have been performing discretionary governmental functions,
entitling them to official immunity.
Id. at 10.
In this case, there is no claim
that the faculty advisors were not performing discretionary duties;
rather, the parties disagree
over whether these discretionary acts were governmental or not. Thus, we must decide whether
oversight of a student drama club production is a governmental function or
not, taking into consideration the policy behind official immunity. As the supreme court has said,
A[t]he public would suffer if
government officers, who must exercise judgment and discretion in their
jobs, were subject to civil lawsuits that second-guessed their
decisions.@ Id. at 8. The United States Supreme Court
has stated:
[O]fficials of government should be free to
exercise their duties unembarrassed by the fear of damage suits in respect
of acts done in the course of those duties--suits which would consume time
and energies which would otherwise be devoted to governmental service and
the threat of which might appreciably inhibit the fearless, vigorous, and
effective administration of policies of government.
Barr v. Matteo, 360 U.S. 564, 571
(1959).
The supervision of student
organizations is a function that is performed by faculty in both state and
private schools. Even
considering the lofty principles underlying the defense of official
immunity, it is difficult to classify the supervision of student clubs and
their productions as a governmental function distinct from such
supervision at non-governmental institutions. In Christilles v. Southwest
Texas State University, 639 S.W.2d 38 (Tex. App.--Austin 1982, writ
ref=d n.r.e.), the court found a
professor=s decision to use a real glass,
rather than a non-breakable prop glass, was not a determination of
governmental policy, but was instead the exercise of professional or
occupational discretion, and therefore, official immunity did not
apply. Id. at 43. Similarly, the Wonios= decision to use a real knife,
and the faculty advisors= negligent supervision of the
production, involved professional or occupational discretion, not
governmental discretion.
Therefore, we hold that official immunity is not applicable to the
activities performed by the Wonios and the faculty advisors under the
facts of this case.
Denial of
Motion to Strike Investigative Report
In its eleventh and final point
of error, TAMU claims the trial court erred in denying its motion to strike the
investigative report, or in the alternative, all three versions of the
investigative report. Harry
Stege, the former police chief at TAMU, investigated the incident and
prepared a report. The office
of the TAMU General Counsel, requested that Chief Stege revise his report
to omit legal opinions.
Ultimately, Stege prepared three versions of his report and sent
memos to the file regarding the general counsel=s requests for revisions. TAMU objected to producing the
three versions of the report in discovery, but was compelled to produce
all three versions. TAMU
filed a motion to protect, which was denied. At trial, TAMU filed a motion to
strike the three versions of the report and the memos prepared by
Stege. This motion was also
denied and all three versions were introduced into
evidence.
TAMU claims that the trial
court should have granted its motion to strike on the grounds that Stege,
as a witness, was not qualified to make the conclusions he makes in the
three reports, that the three versions of the report were highly
prejudicial and could have confused the jury, and that the probative value
of the reports was substantially outweighed by the danger of undue
prejudice, confusion of the issues, or misleading the jury. The only authority cited by TAMU
under this point of error is Tex.
R. Evid. 403.
Appellee responds that TAMU has
waived any possible error by the following acts: (1) not objecting to
plaintiff=s exhibit eight, the
recommendations attached to Chief Stege=s report, and (2) publishing
Chief Stege=s recommendations to the jury
by leaving them in plain view of the jury while questioning
witnesses. The record
reflects that before Plaintiff=s Exhibit 7, the reports, was
admitted into evidence TAMU=s counsel objected on the
grounds stated in their motion to strike and on the following grounds: (1)
it was prepared in anticipation of litigation; (2) it was contrary to the
Texas Tort Claims Act; (3) it is not supported by the pleadings; (4) it
deals with discretionary governmental evidence; and (5) it is irrelevant
because it does not relate to tangible personal property. The trial court overruled the
objections and Exhibit 7 was admitted.
TAMU=s counsel cross-examined Chief
Stege about the reports and omissions from the original report. Following this cross-examination,
TAMU=s counsel approached the bench
regarding Plaintiff=s Exhibit 8, Chief
Stege=s recommendations based on the
reports. TAMU=s counsel stated she did not
waive her objection to the recommendation page. Appellee=s counsel argued that TAMU had
opened the door about everything taken out of the report and had
insinuated that nothing omitted from the original report was damaging to
TAMU. Appellee=s counsel claimed that, by
doing this, TAMU had waived its objection. Appellee=s counsel further argued that
TAMU=s counsel had published the
recommendation page to the jury and had waived objection to that as
well. The trial judge ruled
that TAMU had waived its objection.
In its brief, TAMU does not
mention the trial judge=s ruling regarding waiver and
makes no argument about waiver.
When a party itself introduces evidence that is otherwise improper,
or permits the evidence to be introduced, error is waived. McInnes v. Yamaha Motor Corp.
U.S.A., 673 S.W.2d 185, 188 (Tex. 1984). Thus, TAMU waived any objection to
Plaintiff=s Exhibit 8, the
recommendations page. It is
unclear, however, whether the trial judge=s ruling also concerned
Plaintiff=s Exhibit 7, Chief
Stege=s
reports.
The decision to admit or
exclude evidence is committed to the discretion of the trial court and is
reviewed for abuse of that discretion. City of Brownsville v.
Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). However, if an appellant
introduced the same evidence or evidence of a similar character to that he
is challenging, his objection is waived. See McInnes, 673 S.W.2d at
188. Certainly, by
publishing Exhibit 8 to the jury, TAMU waived any objection to that
exhibit, but the publishing of Exhibit 8 waived objection to Exhibit 7
only if it is evidence of a similar character to that in Exhibit 7. After reviewing these two
exhibits, we find that, although the two exhibits are somewhat similar in
character, there are major substantive differences. Exhibit 7 includes the three
versions of Chief Stege=s report, which discusses what
happened and Stege=s conclusions regarding
wrongdoing by certain personnel and recommendations to prevent future
incidents. Exhibit 8 is
merely a list of Chief Stege=s recommendations. Thus, the two exhibits overlap
only regarding recommendations for changes to be instituted that could
prevent future incidents.
Because Exhibit 7
contains much more information, we cannot say that introduction of Exhibit
8 to the jury necessarily waived any objection to Exhibit 7. Thus, we find no waiver of
TAMU=s objections to Exhibit 7
merely because TAMU=s counsel published Exhibit 8
to the jury.
TAMU also argues that Exhibit 7
should not have been admitted because it was irrelevant and prejudicial,
and because Chief Stege was not qualified to make the conclusions he made
in the reports. These were
also grounds raised in the motion to strike. At the time appellee offered
Exhibit 7 for admission, TAMU objected to the evidence on the grounds
raised in its motion to strike and on other specified grounds.
Evidence is relevant if it tends Ato make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@ Tex. R. Evid. 401. Exhibit 7 is clearly relevant in that it describes interviews with all of the persons involved, discusses school policies, and offers Chief Stege=s conclusions and recommendations. Furthermore, there is little merit to TAMU