Telesis/Parkwood Retirement I, Ltd. v. Anderson (462 S.W.3d 212, 2015)

Citations

462 S.W.3d 212

Full opinion text

OPINION

YVONNE T. RODRIGUEZ, Justice

Appellants, Telesis/Parkwood Retirement I, Ltd, Telesis/Parkwood Retirement, Inc., Telesis Management Corporation, Party doing business as Parkwood Retirement Community (Parkwood), and Party doing business as The Telesis Company (collectively, “Telesis” or “Parkwood”), appeal a final judgment upon a jury’s verdict finding Telesis’ gross negligence harmed Appellee, Edna Anderson, and awarding Edna compensatory and exemplary damages. We affirm the trial court’s judgment.

PROCEDURAL BACKGROUND

Edna filed suit against Telesis alleging that on July 5, 2008, when she was 95 years’ old, she collapsed in the shower area of her apartment at Parkwood Retirement Community, which is an independent-retirement community owned, controlled, and managed by Telesis. In her pleadings, Edna alleged that she was unable to get up and repeatedly pulled the cord on her apartment’s emergency call system. Because no one from Parkwood responded to her calls and no one inquired about Edna’s whereabouts or condition when she failed to appear for her daily mid-day meal at Parkwood on July 6, 2008, Edna remained on the floor of her apartment, naked, without food or water, and eventually in her own waste. Edna alleged that on the evening of July 6, 2008, she pulled a telephone from a desk, striking and injuring her head, and used the telephone to seek help from her family. Edna was hospitalized with injuries and diagnosed with rhabdomyolysis, a condition alleged to have resulted from these events.

In her suit against Telesis, Edna presented theories of negligence and premises liability, gross negligence and malice, misrepresentation, breaches of warranty, and product liability. Edna alleged injury and sought compensatory and punitive damages, in addition to other relief. The case proceeded to trial, and before the case was submitted to the jury, the trial court granted Telesis’ motion for directed verdict on Edna’s premises liability, negligent misrepresentation, and product liability causes of action, and denied the motion on her claims of negligence, gross negligence and malice, and breaches of warranty. The trial court charged the jury on Edna’s theories of negligence and gross negligence. The jury found Telesis’ negligence proximately caused Edna’s injuries • and awarded her compensatory damages totaling $636,517.03. The jury also found by clear and convincing evidence that Edna’s harm resulted from Telesis’ gross negligence, and awarded Edna $1,680,000 in exemplary damages. The trial court entered judgment on the jury’s findings in favor of Edna and against the Telesis defendants, jointly and severally, and awarded Edna $636,517.03 in compensatory damages but reduced the exemplary damage award to $587,217.24.

DISCUSSION

Telesis raises eighteen issues challenging the legal and factual sufficiency of the evidence supporting the jury’s findings related to negligence and gross negligence. In addressing its issues, we employ these standards of review as well as those set out hereafter.

Standards of Review

Whereas we provide a more deferential review of factual determinations, we review legal determinations de novo. Reliance Nat. Indent. Co. v. Advance'd Temporaries, Inc., 227 S.W.3d 46, 50 (Tex.2007). When addressing a challenge to the legal sufficiency of the evidence to support the jury’s findings, we review the entire record, credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex.2005); Henson v. Reddin, 358 S.W.3d 428, 434 (Tex.App.-Fort Worth 2012, no pet.). We sustain a legal sufficiency challenge when, among other things, the offered evidence to establish a vital fact does not exceed a scintilla. Kroger v. Texas Ltd. Partnership v. Suberu, 216 S.W.3d 788, 793 (Tex.2006), citing City of Keller, 168 S.W.3d at 810. “When the evidence offered to prove a vital fact is so weak as to do no more-than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex.2010), quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). If more 'than a scintilla of evidence exists to support the jury’s findings, the evidence is legally sufficient. Anything more than a scintilla of evidence is legally sufficient to support the jury’s finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, would enable reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). Evidence that allows only one inference may not be disregarded by jurors or a reviewing court. City of Keller, 168 S.W.3d at 822.

When reviewing a challenge to the factual sufficiency of the evidence to support the jury’s findings, we consider all the evidence and 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). We must examine both the evidence supporting and that contrary to the judgment. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001).

Under either type of challenge, the jury is the sole judge of the weight and credibility of the evidence, and is entitled to resolve any conflicts in the evidence and to choose which testimony to believe. City of Keller, 168 S.W.3d at 819. We therefore assume that jurors decided questions of credibility or conflicting evidence in favor of the verdict if they reasonably could do so. Id. at 819-20. We do not substitute our judgment for that of the jurors if the evidence falls within this zone of reasonable disagreement. Id. at 822.

We review an assertion that the trial court erred in submitting or refusing to submit a particular instruction to the jury under an abuse of discretion standard of review. Thota v. Young, 366 S.W.3d 678, 687 (Tex.2012), citing In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000). We will not reverse a judgment for a charge error unless the error was harmful because it probably caused the rendition of an improper judgment or probably prevented the petitioner from properly presenting the case to the appellate courts. Tex. R.App. P. 44.1(a); Thota, 366 S.W.3d at 687.

Elements of Negligence

A negligence action requires “a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach.” Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex.2009) (citations omitted). “Liability is grounded in the public policy behind the law of negligence which dictates every person is responsible for injuries which are the reasonably foreseeable consequence of his act or omission.” El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex.1987). The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex.2005); see also Nabors Drilling, U.S.A., Inc., 288 S.W.3d at 404 (citations omitted); Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 289-90 (Tex.1996)(whether a duty exists is a question of law for the court to decide from the particular facts of the case), citing Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). In deciding whether to impose a duty, the court must weigh the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Greater Houston Transp. Co., 801 S.W.2d at 525. Courts have also emphasized other factors, including whether one party had superior knowledge of the risk or a right to control the actor who caused the harm. See Graff v. Beard, 858 S.W.2d 918, 920 (Tex.1993).

I. CAUSATION

To establish proximate causation in a negligence claim, a party must prove both “cause-in-fact” and foreseeability. See Western Investments, Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.2005). These elements of proximate causation “cannot be established by mere conjecture, guess, or speculation.” Id., citing Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). The test for cause in fact is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 549 (Tex.1985) (citation omitted). If the defendant’s negligence merely furnished a condition that made the injuries possible, there can be no cause in fact. See Urena, 162 S.W.3d at 551; IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex.2004). Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. See Doe, 907 S.W.2d at 478. The danger of injury is foreseeable if its “general character ... might reasonably have been anticipated.” ' Id.

Sufficient of the Evidence

The jury found that Parkwood’s negligence proximately caused Edna’s injury. Telesis contends Edna did not meet the cause-in-fact requirement of negligence and asserts that, in one instance, she also failed to establish foreseeability. In its charge, the court instructed:

“Proximate cause” when used with respect to the conduct of Parkwood Retirement Community, means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that an independent living facility using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

Telesis’ Issues One and Two respectively complain of the legal and factual sufficiency of the evidence to satisfy the causation element of negligence. Telesis specifically challenges the causation element in the context of the emergency pull cord, the meal no-show check, and the medical evidence. It also presents a sub-complaint alleging there was “insufficient evidence satisfying the foreseeability part of the causation element” regarding the “old, inoperable bathroom cord[.]”

Telesis restricts its complaints in Issues One and Two to the causation element of Edna’s negligence cause of action and does not challenge the evidence regarding the remaining elements, therefore, we accordingly restrict our analysis to the sufficiency of the evidence to support the causation element.

Application

A. Emergency Call System

Telesis specifically argues that Edna failed to satisfy the causation element because she did not attempt to use the emergency call system in her apartment. Telesis also complains that there is insufficient evidence to satisfy the foreseeability component of the causation element regarding the “old, inoperable bathroom cord[.]” Several witnesses testified regarding the events related to causation.

Edna Anderson

Edna, who was approximately 99 years’ old at the time of trial, did not provide live testimony. In her video-recorded deposition testimony which was played for the jury, Edna stated that as she prepared to take a shower, her knees buckled and she fell down. Edna stated that she had repeatedly tried to use the emergency call unit in her apartment but it did not work. When she was asked where the emergency unit was located, Edna stated, “By the shower.” There was evidence that Edna had prior knowledge that the old emergency call unit located in the bathroom was inoperable. Edna testified that she lay on the bathroom floor for a long time after her knees buckled, and that she crawled and rolled herself to the desk where her phone was located. Edna denied that she had attempted to crawl into her bedroom. At trial, Edna’s daughter, Janet, agreed that between the time of the incident and the time of the deposition, Edna’s mental faculties had declined somewhat and her recollections were spotty. However, the jury also had before it other evidence.

James Dnermeyer

Edna’s son-in-law, James Duermeyer recalled that when he visited Telesis’ Park-wood facility as a possible independent-living residence for Edna, among the selling points presented to him were the emergency call system that Parkwood provided to residents and the verbal representation by an employee that Parkwood would always check on a resident who did not appear for a scheduled meal to see if the resident was all right. During his visit, James observed a string attached to a switch on the bathroom wall and was informed that it was a monitored safety call system through which a resident could summon help in an emergency by pulling the cord. James considered Parkwood’s safety features to be important because Edna would be living alone, and he relayed the existence of these features to his wife, Janet. One of the brochures provided to James during his visit which was also displayed to the jury listed “Monitored Medical Alert” as a feature under the heading, “Safety Features.” The twenty-four-hour monitored service and the promise that Parkwood would check on residents who did not attend a meal was an important selling point and influenced James’ and Janet’s decision to select Parkwood as Edna’s residence. James testified that Parkwood did not inform him that its “missed meal” check of residents was not a safety feature of Telesis’ Parkwood facility until after Edna filed her suit against Tel-esis. James acknowledged, however, that if a resident fell in the evening hours of a day and did not miss a meal until midday on the following day, the passing of twelve or seventeen hours is “[n]ot a way to respond to an emergency” and would not ensure anyone’s safety.

James did not know that the cord in the bathroom had been rendered non-operational and was no longer a part of the emergency call system after Edna moved into her apartment. Further, he could think of no reason why Parkwood would leave the old, obsolete, dysfunctional cord in the bathroom. James later became aware that Edna had received training on a new emergency call system, and noted that Edna had the mental acuity at that time to understand what was explained to her.

James testified that it was believed that Edna had fallen at about 7 p.m. on the evening of Saturday, July 5, 2008. Edna was only able to secure assistance after telephoning Janet at 4:30 p.m. on July 6, 2008, after she had missed her midday meal. After receiving Edna’s call to come to her apartment, James and Janet arrived and found Edna naked on the floor and appearing almost totally white in color. Urine and feces were all over the floor and the apartment reeked horribly. James described Edna as agitated and upset, and testified that Edna said, “If they had just come, I’d be all right. I pulled the cord three times and nobody came.... Park-wood let me down.” James acknowledged that Edna did not specify to him which cord she had pulled and, although a cord was present in the bathroom when Edna moved in, he did not know for a fact that it was present in Edna’s bathroom on the day Edna called for help. Edna did inform James, however, that she had pulled the cord and had then spent the night on the floor.

James explained that Janet called Park-wood’s emergency line as well as Edna’s doctor, Dr. Marc Chapman, and informed-Dr. Chapman that Edna had been lying on the floor in her own urine and feces for twenty-two to twenty-three hours. James used Janet’s cell phone to call 9-1-1, left the apartment to wait for emergency personnel, and upon their arrival escorted them to Edna’s third-floor apartment.

While the emergency medical technicians were examining Edna, James observed a man enter Edna’s apartment and open a cardboard box that the man had brought with him. When James asked the man what he was doing, the man informed James that he was replacing the emergency call system because “[i]t doesn’t work.” The man then replaced the emergency transmitter box in Edna’s bedroom. The transmitter box accepts a signal from a pendant on a lanyard. James later learned during litigation that the transmitter box which had been removed from Edna’s bedroom had been discarded.

James never examined the emergency call system in Edna’s apartment on or before July 6, 2008, when Edna was found in her apartment. He testified . at trial that he had seen Edna’s emergency call device pendant hanging from one of the two posts on her headboard. Using Edna’s lanyard, James demonstrated how far down the cord on the device would dangle from the bedpost. He also acknowledged that during his pretrial deposition he could not specify how high the pendant on the lanyard was from the floor or whether it was hanging from a bedpost or wrapped around the top of the bedstead. He also acknowledged that during his pretrial deposition 'he had stated that he would be speculating “how high from the floor the box portion of the lanyard component was” where Edna kept it on her bedpost. Although James was unaware that the emergency call pendent on the lanyard does not “snap back” on its" own after it is pulled, he demonstrated that it was easy to reset the device. According to James, Edna knew and was very well aware of the newer emergency call system, and asserted that Edna had pulled the lanyard on her bed, next to which he had observed a trail of urine “tracings.” He testified that Edna was mentally alert and knew what she was doing when she attempted to seek assistance.

After Edna left the hospital, James and Janet visited with Parkwood’s Director, Mary Nafziger at the Parkwood facility. James testified that when he asked Mary what had happened, she stated that the emergency call system did not work. When he asked about the failure to visit Edna’s room after she missed a meal, Mary stated that that system failed, too, because a new person who was working in the kitchen “just didn’t get it” that he was supposed to go visit Edna. When James asked Mary what she believed Parkwood’s responsibility was, she replied, “We’re sorry.”

James testified that prior to this incident, Edna was able to “do everything herself’ including cooking her own breakfast, clothing and bathing herself, and walking a long distance to the dining room at Parkwood. After the event, James explained, Edna was unable to do any of those things and, although she could feed herself, she needed assistance with her clothing, bathing, and going to the bathroom.

At the time of trial, Edna was living in a skilled nursing facility where Janet would change Edna’s soiled clothes, assist her in preparing for meals, and ensure that Edna was receiving adequate care. James testi-fled that Edna still says that Parkwood let her down, is very fearful of another traumatic experience, and lays in bed gripping her emergency call button in her hand. James explained that, “Janet has to go over and pry her fingers off and get’ that out of her hand .... [s]o she’s very fearful that ... another traumatic episode might occur.”

Janet Duermeyer

Edna’s daughter, Janet Duermeyer, stated that she had previously observed the emergency call device lanyard hanging from her mother’s bedpost and testified that it would be accessible to anyone on the floor. Janet testified, “There was urine and feces just all over — the bathroom was probably the worst, but then on into the bedroom and up along the bed where she would go to pull the cord [and] then out into the room and over to where the phone was.” Janet also specified that she found urine along the side of Edna’s bed up to the bedpost area. Although there was some evidence that Edna was taking medication for incontinence, there was no evidence that Edna had previously urinated on the floor.

Janet also testified that when she and James met with Nafziger after Edna was hospitalized, Naziger was very apologetic and commented that both of their systems had failed. Without objection, Janet testified that while she was at Edna’s apartment, a Parkwood housekeeper informed her that she had known Edna’s emergency call device was not working because she had noticed it several times while making Edna’s bed. The housekeeper informed Janet that she had reported that Edna’s emergency call unit was non-operational.

Howard Allred and John Neill

Howard Allred, the maintenance supervisor at Parkwood, testified that after Edna’s event, he had learned from a housekeeper named Andrea that she had on four occasions reported to Parkwood’s management that Edna’s emergency call device was not working. Allred asserted that Telesis co-owner and CEO, John Neill, had threatened to fire him if he informed anyone of the reports. John Neill was a partner and CEO of The Teles-is Company, most of whose clients are elderly. Mary Nafziger reported to Neill. Neill met with Nafziger on a monthly basis, or sometimes more frequently, but stated that he was never informed by anyone that money should be expended to remove the old cords from the prior emergency call system so that its elderly residents do not become confused and pull old cords that do not work. Neill stated that he did not think he had told anyone that his or her employment would be terminated for discussing what had happened in Edna’s apartment. Nor did Neill recall receiving after Edna’s fall a Parkwood staff-member complaint about the system for checking on residents or anyone ever suggesting that it should not be the cooks’ responsibility to check on residents who do not attend meals. When asked if it was possible that he had “shut down” an employee’s recommendation that a non-slip surface be placed in slippery areas to prevent elderly persons from falling at Park-wood because it cost too much money, Neill replied, “Anything is possible.”

Mary Nafziger

Nafziger, who initially served as Park-wood’s receptionist, began serving as its Operations Manager in 2001, and became Parkwood’s Director in April 2008. Naf-ziger was the person at Parkwood to whom everyone reported. She did not recall informing Janet and James that Edna’s emergency call unit had failed. Nafziger , explained that there was no real way to know if the emergency call unit was'working without testing it and stated that although the base unit recovered from Edna’s apartment displayed the word “operate,” she did not pull the “trigger” cord to see if it was functioning but instead threw away Edna’s base transmitter box unit.

Nafziger explained that she was the only person in charge of the emergency call units, including their programming, maintenance, and testing for proper operation, and that it was her responsibility if the units did not work. Nafziger was aware that the manufacturer’s manual for the emergency call devices included a page including a heading, “Important. Please read this page,” informing the reader that the emergency call units should be tested regularly. Nafziger admitted that she knew that the manufacturer’s manual urged that the units be tested weekly and included a checklist on which to record the weekly testings. However, Nafziger only tested the units annually on the date of the resident’s “move-in” anniversary. Nafziger explained that she was trained by a technician from Telesis’ corporate office and it was her understanding that weekly testing was not necessary. Although Naf-ziger admitted that she may have made the decision to not test the emergency device systems weekly, she believed that the corporate office had made that decision.

She admitted knowing that the manufacturer’s manual indicated that it is a foreseeable possibility that, unless the emergency call units are tested, they may not be working and agreed with that warning. Nafziger also agreed that it is foreseeable that if a unit is not tested and it is not working when someone needs to use it in an emergency, someone can be seriously injured or may die. Nafziger explained that there had been three or four instances where she discovered that units were non-functioning and the resident was unaware that his or her emergency call units were non-operational, but noted that those circumstances rarely happened. However, Nafziger also testified that on approximately six occasions she had replaced units when residents had complained about them but she did not know whether the units really worked, as it was not her practice to test emergency call units about which residents had concerns but to discard and replace them with new units.

Nafziger explained that it is her understanding that if the transmitter/receiver box displays the word, “operate,” she can rely on the fact that everything is working. However, when asked what would happen if the batteries were not in the lanyard but the transmitter box was plugged in, Naf-ziger admitted that the transmitter/receiver box “would probably still say ‘operate.’ ”

Nafziger stated that she did not instruct Dennis Jackson, the maintenance man who initially responded to Edna’s apartment that evening, to swap out the emergency call unit but rather initially told him that she was going to check the system and install a new one. She testified that Edna’s emergency call system lanyard was wrapped around the middle portion of Edna’s twin bed headboard and was not in a pulled position when she arrived at Edna’s apartment later. Nafziger testified that she saw that the call box displayed the word “operate,” and did not test the unit because she believed it was working. She proceeded to discard the emergency call box component of the emergency call system on the night Edna was found, before a corporate risk manager requested that she save the device. Nafziger explained, “[This] is what I do when I change out all of the boxes.” She kept the lanyard component of the system and laid it on her desk. According to Nafziger, the corporate risk manager instructed her “two days after the fact” to save the lanyard, and Nafziger explained that she did not know why she had kept the lanyard because “it could have easily been gone by then.”

When asked if she thought it was important to confirm whether the call box was working because Janet and James had said that it did not work, Nafziger said it was her opinion that it would have worked if it had been activated, and she observed that it had not been activated. She explained that she threw away the box that she believed was working “[o]nly because I wanted to reassure Ms. Anderson and her family that what we would provide for her would be brand new and they could have any fears arrested.” Based on what she was told by Dennis Jackson, the on-site responder, Nafziger stated that she was aware that “they felt there was a problem with [Edna’s] emergency box.”

Nafziger eventually admitted that Park-wood’s housekeeper, Andrea, had informed her on one occasion that Edna’s emergency call unit was not working, but observed that she did not recall that the notification “was real quick — short before” Edna’s incident. She also explained that Parkwood has no policy for documenting incidents or injuries through the creation of reports, and none were made in this case. Nafziger shredded a sheet documenting battery changes because she did not feel she would need it. Nafziger disagreed that the emergency call system at Parkwood is a safety and security feature and disagreed that the main selling point of having an emergency call system is to aid someone who has fallen and cannot get up. She also disagreed that checking on a person who does not show up for a meal is a safety feature. According to Nafziger, residents should count on the emergency call system working, but not as a safety feature. Nafziger explained that the purpose of the emergency call system is to alert Parkwood in the event of an unforeseen accident such as an overflowing commode by permitting the resident to activate the caller and quickly receive someone at the apartment.

She acknowledged that she informs prospective new residents that the system is to be used “in case your commode is overflowing, in case you have become ill, in case you have fallen.” When asked about the promotional brochure Parkwood provided to James, Nafziger explained that the “Safety Features, Monitored Medical Alert” referenced in the brochure indicated a medical device like a bracelet that is “monitored by an outside company ... [t]hat’s not something that we do,” and stated that she was not aware that Park-wood provides that type of service. Instead, Nafziger explained she informs people that “we provide them with an emergency caller” and does not tell them that they should rely on it for safety. Nafziger said she instructed residents to wear the lanyard or place it where they would be able to reach it in the event they fall and are laying on the floor.

B. Missed-Meal Cheeks

Telesis also argues that there is insufficient evidence of negligence concerning its practice of checking on residents who fail to attend scheduled meals, which it argues was provided as a courtesy and notes is not included within the occupancy agreement that Edna signed. Although this practice had been satisfactorily implemented on a prior occasion when Edna had overslept, it was not implemented on July 6, 2008, when Edna failed to attend her meal.

Parkwood employee Reginald Austin testified that he had worked at Parkwood for fourteen years and explained that Tel-esis’ Parkwood facility routinely monitored residents’ attendance at meals. Absent a resident’s advance notification that he or she would not be attending a meal, a Tel-esis employee would check on an absent resident’s welfare. Austin explained that a phone call would first be placed to the resident’s apartment and, if the resident did not answer the telephone, someone would go to the resident’s apartment to check on the resident and ensure “everything [was] okay.” Austin testified that he was not on duty on the day Edna missed her meal, and explained that the kitchen manager who was on duty that day had failed to check on Edna.

Austin also testified regarding a previous occasion when a Parkwood resident who had fallen in her apartment was taken to the hospital. When the resident did not appear for a meal, the staff assumed that the resident was still in the hospital, and no one followed the procedure of checking on the resident. In fact, the resident had returned to her apartment that same evening, had slipped and fallen, and had died.

"When asked if she took any responsibility for the event involving Edna, Nafziger replied that she was sorry it happened and she took responsibility for the fact that “we didn’t close the loop with checking on her after lunch.” She testified that when she met with James and Janet, she informed them “that if we had not checked on Ms. Anderson as we should, I was very sorry that that system failed and that I would certainly check into why [our practice] had not been followed[.]” Nafziger agreed that it was reasonable for the residents to rely on the fact that in the event they miss a meal, they will be checked on before more than one day passes, that a reasonable and prudent facility would ensure such residents were checked on, and that the failure of Parkwood’s cook to check on Edna after she missed a meal was negligence. She also conceded that it was foreseeable that failing to check on someone who had fallen could lead to great harm and even death.

C. Causation

Telesis also complains that the medical evidence fails to show causation because Dr. Chapman was unable to testify to a reasonable degree of medical probability how long Edna had been on the floor before suffering permanent muscle damage, and provided only a range of hours between four and eight to twelve hours in which rhabdomyolysis could commence.

Allred testified that prior to the incident, Edna “was really in good condition for her age,” was not in a wheelchair, was able to walk and cooked, would engage in activities with other residents, and whatever health problems she may have had, they were “not anything that kind of restricted her[.]” Janet described the incident as a turning point in her mother’s health, before which Edna lived independently, walked, cooked, could clothe and bathe herself, was happy, and enjoyed life. Dr. Chapman, who was Edna’s personal physician, testified that Edna was in good health generally, had some arthritis in her knees, which had improved in some regards, was independent, did not need much assistance, and had limited complaints.

Dr. Chapman learned from Edna that she had collapsed and remained on the floor for more than 20 hours before being found, and confirmed this information from the history Edna had provided to the emergency room physician. He determined that Edna did not suffer any serious injuries such as fracture, head injury, stroke, or a cardiac event when she “fell,” and determined that she may have experienced fatigue or weakness rather than a fall. .

From laboratory tests, Dr. Chapman determined that Edna had suffered from rhabdomyolysis, a deterioration or necrosis of the muscles that can be caused by trauma to the muscles, such as lying on the floor or being in an immobile state. After ruling out other causes, Dr. Chapman concluded that the length of time Edna spent on the floor and her inability to move well during that time was, within a reasonable degree of medical probability, the most likely cause of Edna’s rhabdomyolysis.

Although Dr. Chapman testified he could not predict how early Edna would have experienced the effects of rhabdo-myolysis, he explained that the muscle damage Edna experienced could have been prevented or reduced if someone had attended to Edna earlier because the extent of the damage from rhabdomyolysis correlates with the amount of time the muscle is experiencing the damage under circumstances such as Edna’s. He explained that, “[T]he issue ... is just the total time you’re down ... [because] you’re just going to get weaker the longer you’re down.” While there may be some acceleration of damage in the last few hours, Dr. Chapman observed that the quantification of that time period would be different for every person. Dr. Chapman acknowledged that he could not to a reasonable degree of medical probability state how long Edna had to be on the floor before suffering permanent muscle damage but noted that he could state within a reasonable degree of medical probability that the longer someone like Edna is on the floor, the worse the rhabdomyolysis will become and given Edna’s very high level of myo-globin, testified that he could state with certainty that Edna suffered more damage with each hour that passed. He also explained that if Edna had been found on the evening of her fall, it would have been much less likely that Edna would have suffered permanent muscle damage as she did, and specified that if Edna had been found after four hours, she would not have suffered as much damage as was present at twenty-four hours.

According to Dr. Chapman, nothing other than the rhabdomyolysis prevented Edna from returning to her pre-event condition. Myoglobin, the enzyme that is released during rhabdomyolysis is also a cardiac enzyme for which the emergency room physicians tested Edna. Dr. Chapman explained the myoglobin value can be used to quantitate to some degree the amount of a person’s injury and noted that in a mild case, as when a person has muscle pain from exercising excessively or due to medication, such levels will be between 300 and 400 ng/ml and, even then, steps will be taken to stop the ongoing damage because damage over time is the most concerning factor. Dr. Chapman testified that Edna’s myoglobin measured “dramatically high,” at more than 10,000 ng/ml, a level “[w]e would call ... a severe increase in the myoglobin.” A normal level of myoglobin is 40 ng/ml. Regarding these myoglobin levels, Dr. Chapman explained, “The higher the number, the more the injury ... [and] the worse the outcomes.”

Dr. Chapman stated that although Edna did not suffer acute kidney injury or cardiac injury and experienced mild elevation of liver enzymes, she suffered permanent muscle damage. He explained that Edna’s prolonged time on the floor was the beginning of a “downhill course” for her.

Edna Anderson presented evidence that Parkwood’s act or omission was a substantial factor in causing the injury, permanent muscle damage, without which the harm to her would not have occurred, and presented evidence that a person of ordinary intelligence should have anticipated the foreseeable danger of injury created by the negligent act or omission because its general character might have been reasonably anticipated. See Marathon Corp., 106 S.W.3d at 727; Doe, 907 S.W.2d at 478.

We have reviewed the entire record, credited favorable evidence if reasonable jurors could, disregarded contrary evidence unless reasonable jurors could not, and conclude that more than a scintilla of evidence exists to support the jury’s findings regarding Parkwood’s negligent causation of Edna’s harm. City of Keller, 168 S.W.3d at 827. Having considered all of the evidence, we further conclude the judgment is not 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). Because the evidence is legally and factually sufficient to support the jury’s findings as to causation, Issues One and Two are overrated.

II. NEGLIGENT UNDERTAKING

A. Broad Form Question

Telesis next broadly complains that “Plaintiff failed to request and the judge failed to submit a jury question concerning, and there was not sufficient proof of, the elements of a negligent undertaking.” In Issues Three, Four, and Five, Telesis complains respectively that: (1) the trial coui’t eired in submitting a broad form negligence jury question instead of a negligent undertaking instraction and question; (2) there was no evidence to support a negligent undertaking claim against Teles-is; and (3) there was factually insufficient evidence to support a negligent undertaking claim against Telesis.

After Telesis had objected to portions of the trial court’s proposed charge, it ten-dei’ed to the tidal court the following granulated Question 1, which the court l'efused:

Did the negligence, if any, of Parkwood Retirement Community proximately cause the injury in question?

Parkwood Retirement Community was negligent if—

1. Parkwood Retirement Community undei’took to perform services that it knew or should have known were necessary for Edna Anderson’s protection, and

2. Parkwood Retii’ement Community failed to exercise l’easonable cai'e in performing those services, and

3. [Ejither Edna Anderson relied on Pai’kwood Retirement Community’s performance or Parkwood Retirement Community’s performance increased Edna Anderson’s risk of harm.

Answer Wes” or “No”: ...

Telesis then objected to Question 1 of the trial court’s proposed charge on the basis that there was “no evidence regarding a duty on behalf of Parkwood Retirement Community that was breached.” The trial court overruled that objection and submitted in its charge Question 1 which asked, “Did the negligence, if any, of Parkwood Retirement Community proximately cause the injury in question?”

On appeal, Telesis presents specific broad-form instruction complaints not expressly presented to the trial court. Edna initially counters that Telesis failed to preserve its broad form jury question complaint for our consideration because its objection fails to explain why the broad form question was not appropriate and fails to identify the legal basis Telesis now asserts on appeal.

1. Preservation

We first consider whether Telesis has preserved for appellate review its complaint regarding the broad form of Question 1, and we conclude that it has preserved the complaint.

Rule 274 requires that a party objecting to a charge point out distinctly the objectionable matter and the grounds of the objection. Tex.R. Civ. P. 274. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections. Id. The purpose of this rule is to afford the trial court an opportunity to correct charge errors by requiring an objecting party to clearly designate the error and explain the grounds for its complaint. See Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex.2014) (citations omitted).

The Texas Supreme Court has reiterated that the procedural requirements for determining whether a party has preserved error in the jury charge are explained by one basic test: “whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” See Thota, 366 S.W.3d at 689, quoting State Dep’t of Highways v. Payne, 838 S.W.2d 235, 241 (Tex.1992). Additionally, to preserve error for appellate review, the rules generally require the complaining party to make a timely objection to the trial court stating the grounds for the ruling that the complaining party seeks with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context, and obtain a ruling. Tex.R.App. P. 33.1.

In resolving this preservation issue, we are guided by the Texas Supreme Court’s consideration of a similar complaint in Thota. Thota, 366 S.W.3d at 691. There, the Court considered whether a complaint regarding a broad-form question as to an element of damages was preserved. Id. Following Its ruling in Harris Cnty. v. Smith, 96 S.W.3d 230, 236 (Tex.2002), in which the Court had determined that “[a] timely objection, plainly informing the court that a specific element of damages should not be included in a broad-form question because there is no evidence to support its submission, therefore preserve[d] the error for appellate review[,]” the Thota Court ruled that a party’s objection to a submitted charge along with its submission and presentation of a proposed charge to the trial court according to its theory of the case was sufficient to place the trial court on notice that the party believes the evidence does not support the challenged instruction. Thota, 366 S.W.3d at 691. The Court noted that it has long favored a common sense application of its procedural rules that serves the purpose of the rules, rather than a technical application that rigidly promotes form over substance. Thota, 366 S.W.3d at 690.

Telesis requested a granulated Question 1 and objected to the trial court’s broad form Question 1 in immediate succession, without the interposing of other objections or requests by any party. From the context of Telesis’ requested Question 1 and its immediate, subsequent objection to the trial court’s proposed Question 1, we conclude the specific grounds of Telesis’ objection, which included seeking a granulated question rather than a broad form question, were apparent to the trial court. Therefore, Telesis has preserved for our consideration its objection to the trial court’s broad form question.

2. Proper Form of Jmy Question

Telesis contends that Edna’s claims “plainly would be characterized as claims for negligent undertakings,” and complains that Edna failed to request, and the trial court failed to submit, a jury instruction on negligent undertaking. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 838-39 (Tex.2000). To establish a negligent undertaking, a plaintiff must show that the defendant undertook to perform services that it knew or should have known were necessary for the plaintiffs protection, that the defendant failed to exercise reasonable care in performing those services, and either that the plaintiff relied upon the defendant’s performance, or that the defendant’s performance increased the plaintiffs risk of harm. Nall v. Plunkett, 404 S.W.3d 552, 554-56 (Tex.2013); see also Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 598 (Tex.App.-Fort Worth 2008, pet. denied), citing Torrington Co., 46 S.W.3d at 839. The broad-form submission for a typical negligence claim and a negligent-undertaking claim is the same, except that an undertaking claim requires the trial court to instruct the jury that a defendant is negligent only if the defendant undertook to perform services that it knew or should have known were necessary for the plaintiffs protection, the defendant failed to exercise reasonable care in performing those services, and either the plaintiff relied upon the defendant’s performance, or the defendant’s performance increased the plaintiffs risk of harm. Nall, 404 S.W.3d at 555-56, citing Torrington, 46 S.W.3d at 838-39; Restatement (Second) of Torts § 324A (providing the rule for liability arising from negligent performance of an undertaking).

After the trial court ruled on Telesis’ motion for directed verdict, Edna’s causes of action for negligence, gross negligence and malice, and breaches of warranty remained. Our review of the pleadings, record, evidence, and arguments reveals at no time did Edna plead, try, or argue a negligence cause of action against Telesis based on negligent undertaking. Rather, our review of the record indicates that Edna presented a negligence cause of action based upon one or more duties arising from an ordinary duty of care. Indeed, in conformity with Edna’s pleadings and the evidence admitted at trial, the trial court instructed the jury in the court’s charge:

“Negligence,” when used with respect to the conduct of Parkwood Retirement Community, means failure to use ordinary care, that is, failing to do that which an independent living facility of ordinary prudence would have done under the same or similar circumstances or doing that which an independent living facility of ordinary prudence would not have done under the same or similar circumstances.

“Ordinary Care,” when used with respect to the conduct of Parkwood Retirement Community, means that degree of care that would be used by an independent living facility of ordinary prudence under the same or similar circumstances.

For these reasons, we conclude the trial court did not abuse its discretion in refusing to submit a negligent undertaking instruction. Thota, 366 S.W.3d at 687, citing In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000). Issue Three is overruled.

B. Evidence of Negligent Undertaking

In Issue Four, Telesis asserts that there was no evidence of the necessary elements of a negligent undertaking claim, and in Issue Five contends it is entitled to a new trial because any negligent undertaking claim was against the overwhelming weight'of the evidence or against the great weight and preponderance of the evidence. As we have determined Edna’s negligence theory was not based upon negligent undertaking but rather upon the existence of a duty of ordinary care, thus, she was not required to prove the elements of negligent undertaking. Issues Four and Five are overruled.

III. COMPENSATORY DAMAGES

In Issues Six, Seven, Eight, Nine, and Ten, Telesis challenges the sufficiency of the evidence to support the jury’s award of compensatory damages.

Standard of Review

We review a challenge to the propriety of a damages award for factual sufficiency of the evidence. See Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). When conducting a factual sufficiency review, we must consider and weigh all of the evidence, both in support of and against the findings, in order to decide whether the verdict should be set aside. Doctor v. Pardue, 186 S.W.3d 4, 17 (Tex.App.-Houston [1st Dist.] 2006, pet. denied), citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); see Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Lofton, 720 S.W.2d at 805. We reverse and remand for a new trial only if the verdict is so against the great weight and preponderance of the evidence that it is manifestly unjust or shocking to the conscience. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Pool, 715 S.W.2d at 635.

In conducting our review, we must bear in mind that the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Golden Eagle Archery, 116 S.W.3d at 761; Jones v. Tarrant Util. Co., 638 S.W.2d 862, 866 (Tex.1982). As this court is not a fact finder, we may not substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Pool, 715 S.W.2d at 634. Further, as fact finder, the jury is free to believe one witness and disbelieve another. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). The jury also resolves any inconsistencies in any witness’s testimony. Id. Where the award is based on non-empirical damages such as mental anguish and pain and suffering, the court will generally leave that determination to the discretion of the jury. See Dico Tire, Inc. v. Cisneros, 953 S.W.2d 776, 791-92 (Tex.App.-Corpus Christi 1997, pet. denied).

Where, as here, someone suffers personal injuries, the damages fall within two broad categories: economic and non-economic damages. Golden Eagle Archery, 116 S.W.3d at 763. Texas recognizes the following categories of non-economic damages: pain, suffering, mental anguish, disfigurement, and physical impairment. Id. at 769. These categories of non-economic damages may overlap. Id. at 770.

Generally, our starting point for conducting a factual sufficiency review is the charge and instructions to the jury. Id. at 762. In the instant case, Question 2 asked the jury to fill in five blanks: (1) past physical pain and mental anguish; (2) future physical pain and mental anguish; (3) past physical impairment; (4) future physical impairment; and (5) past medical expenses.

The jury was instructed:

Consider the elements of damages listed below and none other. Consider each element separately. Do not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any amount of damages you find.

Do not include any amount for any condition not resulting from the injury in question.

Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Edna Anderson.

Unless the record demonstrates otherwise, we must presume the jury followed the instructions given. Id. at 771.

Analysis

In Issues Six and Seven respectively, Telesis argues we should set aside the compensatory damages award and remand for a new trial because the evidence is legally and factually insufficient to support the jury’s finding of negligence. Telesis specifically argues, “If the cause-in-fact and foreseeability elements of causation are missing for Question 1, ... then no compensatory damages can stand.” In Issues One and Two, we determined the evidence of causation is legally and factually sufficient to support the jury’s finding that Telesis was negligent. Therefore, Issues Six and Seven are overruled.

In Issue Eight, Telesis complains the evidence was legally and factually insufficient to allow the jury to allocate Edna’s damages between those indisputably not caused by Telesis and those claimed to have been caused by Telesis. Telesis first raised its legal sufficiency challenge regarding allocation of damages in its post-trial amended motion for judgment notwithstanding the verdict and again in its motion for new trial, which the trial court denied. To preserve a factual sufficiency challenge, a party must raise the issue in a motion for new trial. Tex.R. Civ. P. 824(b)(2); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex.1991). In its motion for new trial, Telesis broadly complained that “there was insufficient evidence admitted that would allow the jury to allocate damages,” “the sums determined were for the entire injury,” and provided “no basis for fashioning a proper judgment in any amount.”

As in its post-trial motions, Telesis’ brief neither cites any legal authority nor provides any discussion of law in support of its complaints regarding the allocation of damages and the evidence necessary to support an award of damages. Tex.R.App. P. 38.1(i)(brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record). According to Telesis, the jury awarded the entirety of the medical expenses and other compensatory damages “against” Telesis, and complains that the stipulated medical expense consisted of all harm and injury between Edna’s fall and her attempt to summon aid and from the fall to lunchtime on July 6, 2008.

Telesis does not direct us to any evidence demonstrating that any damages found by the jury relate back to Edna’s unexplained collapse rather than to Teles-is’ sole negligence, but instead contends the proof did not allow the jury to logically and properly allocate between damages attributable to Edna’s fall and incremental damages thereafter occurring when the meal “no-show” check failed. Asserting that there is no evidence of the time when Edna pulled the emergency call system cord, Telesis contends the “injury in question” set out in the trial court’s charge “became the full injury from the incident” rather than any injury resulting from Edna’s prolonged stay on the floor as caused by Telesis’ negligence. We note that Telesis did not present these exact arguments to the trial court in its motion for new trial.

In its charge, the trial court instructed the jury to base its answers only on the evidence admitted in court and on the law contained in the instructions and questions set out within the charge. The charge also instructed the jury to answer each question about damages separately, prohibited the jury from increasing or reducing the amount of damages in one answer because of its answer to another question about damages, and instructed the jury to refrain from considering, discussing, or speculating regarding other matters specified in the charge.

Question 1 asked the jury to determine whether Telesis’ negligence proximately caused the injury in question. In Question 2, the trial court’s instruction directed that the jury neither include any amount of damages for any condition not resulting from the injury in question nor reduce the amount of its answers to the damages questions because of Edna’s negligence, if any. The damages at issue in Questions 1 and 2 were those proximately resulting from Telesis’ negligence. Whether damages were proximately caused by Telesis’ breach of a duty was an element of Edna’s negligence claim, which the jury affirmatively determined in its answer to Question 1. See Nabors Drilling, U.S.A., Inc., 288 S.W.3d at 404. The determination of the amount of such damages as set out within Question 2 was within the province of the jury. See Gibbins v. Berlin, 162 S.W.3d 335, 343-44 (Tex.App.-Fort Worth 2005, no pet.)(amount to be awarded for pain and suffering damages best left to province of jury).

We find no evidence in the record that the jury failed to follow the trial court’s instructions, and Telesis has failed to direct us to any. Unless the record demonstrates otherwise, and it does not, we must presume that the jury followed the trial court’s instructions. See, e.g., Golden Eagle Archery, Inc., 116 S.W.3d at 771; Tesfa v. Stewart, 135 S.W.3d 272, 279 (Tex.App.Fort Worth 2004, pet. denied). Moreover, Telesis’ failure to cite to any law or legal authority in support of its allocation complaints fails to persuade us that its allocation arguments are meritorious. Issue Eight is overruled.

In Issues Nine and Ten respectively, Telesis again challenges the legal and factual sufficiency of the evidence to support the jury’s compensatory damage awards. Telesis generally contends that the “compensatory damage award is unsupportable because of the lack of proof linking any quantifiable negative change concerning [Edna] on or after July 5-6, 2008, in any way to the events of those two days,” and asserts that the record is devoid of proof justifying the jury’s award in the five categories of damages. We address each component separately.

Past and Future Pain and Mental Anguish

Question 2 of the trial court’s charge asked what sum of money would fairly and reasonably compensate Edna for her damages, if any, resulting from the injury in question. For physical pain and mental anguish sustained in the past, the jury’s answer was $150,000. For Edna’s future physical pain and mental anguish, the jury awarded Edna $36,000.

Even where a defendant’s conduct is merely negligent, “Texas has authorized recovery of mental anguish damages in virtually all personal injury actions.” City of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex.1997), quoting Krishnan v. Sepulveda, 916 S.W.2d 478, 481 (Tex.1995). However, in Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995) (citations omitted), the Texas Supreme Court held that mental anguish damages cannot be awarded without either direct evidence of the nature, duration, or severity of plaintiffs anguish, thus establishing a substantial disruption in the plaintiffs’ daily routine, or other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. See also Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex.2013).

We apply a traditional no-evidence standard to a mental anguish finding to determine whether the record reveals any evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. Parkway Co., 901 S.W.2d at 444. To support an award for future mental anguish, a party is required to demonstrate a reasonable probability that she will suffer compensable mental anguish in the future. Adams v. YMCA of San Antonio, 265 S.W.3d 915, 916-17 (Tex.2008). In reviewing the jury’s finding, we consider whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 822, 827. We consider all of the evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it. Id. at 822.

It is well-settled that there must be both evidence of the existence of com-pensable mental anguish and evidence to justify the amount awarded. See Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231 (Tex.2011); Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex.2002), quoting Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996). Mental anguish damages cannot be determined with mathematical precision but only through the exercise of sound judgment. Bentley v. Bunton, 94 S.W.3d 561, 605 (Tex.2002). The Fort Worth Court of Appeals has explained:

The process of awarding damages for amorphous, discretionary injuries such as mental anguish or pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidat-ed, nonpecuniary loss. The p