IALDA

In The Court of Appeals

Fifth District of Texas at Dallas
No. 05-10-00060-CV

APRIL BARRERA, INDIVIDUALLY AND AS NEXT FRIEND AND THE NATURAL MOTHER AND GUARDIAN OF

MINOR CHILD, ASHLEY BERGANCIANO, Appellant

V.

RICHARD WHITE, INDIVIDUALLY AND D/B/A

RICHARD WHITE TRAIN, A/K/A HAPPY TRAIN, Appellee

On Appeal from the 397th Judicial District Court

Grayson County, Texas

Trial Court Cause No. 07-1112-397

…………………………………………………….
MEMORANDUM OPINION

Before Justices Richter, Lang, and Fillmore

Opinion By Justice Lang

April Barrera, individually and as next friend and the natural mother and guardian of minor child, Ashley Berganciano, sued Richard White, individually and d/b/a Richard White Train, a/k/a Happy Train for damages arising from injuries twelve-year old Ashley suffered while riding White’s homemade, trackless, amusement ride train. The train, patterned after two trackless trains White had previously purchased and operated, was pulled by an all-terrain vehicle and consisted of several steel drums supported by steel tubing and attached to wheels. Following a jury trial, the trial court rendered a take-nothing judgment in White’s favor. In three issues on appeal, Barrera asserts the trial court erred in excluding certain evidence and limiting the testimony of her expert. We affirm the trial court’s judgment.

I. Procedural and Factual Background

 The injuries occurred when Ashley’s hand was caught under a wheel as she reached down to the ground to pick up a soda can she, her twin sister, and two friends had been  throwing back and forth from train car to train car. The skin of Ashley’s hand was “degloved” and required numerous surgeries to repair.  Asserting White’s train was dangerous, Barrera sued White for negligence and gross negligence. Barrera alleged the injuries were proximately caused by White’s negligence and gross negligence in thirty-four different respects. Barrera maintained it was reasonably foreseeable that a child would stick her hand in the area of the moving parts resulting in serious and permanent injuries. She further maintained that, despite “full knowledge that young children would be playing on and around dangerous pinch points, [White] took no action whatsoever to minimize the risk of such injuries.” The acts and omissions alleged by Barrera closely mirrored “criticisms” listed in the report of her expert witness Walter Reiss, an amusement ride inspector with approximately twenty years’ experience. In arriving at his “criticisms,” Reiss reviewed, among other items, pictures of the train taken during an inspection, the depositions of White and Barrera, Texas Administrative Code Title 28 concerning the safety inspection and insurance of amusement rides, Texas Occupations Code Chapter 2151 which regulates amusement rides, and the American Society for Testing and Materials (ASTM) F-24 standards covering design, manufacturing, maintenance, inspection, and operation of amusement rides. Based on his review of the various pictures and documents, Reiss was of the opinion that the injuries could have been prevented if the train’s wheels, which were within the reach of passengers, had been properly protected by guards.

After some discovery had been conducted, White filed a Robinson motion seeking to exclude Reiss as an expert. See E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Challenging Reiss’s qualifications and contending that Reiss’s opinion was unreliable and failed to address how the acts and omissions contributed to Ashley’s injuries, White asked the trial court to exercise its “gatekeeper” function pursuant to Texas Rule of Evidence 702. See Tex. R. Evid. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998); Robinson, 923 S.W.2d at 549.

The trial court held a pre-trial hearing and, following Reiss’s testimony concerning his qualifications and opinions, ruled that Reiss could testify and offer opinion testimony with respect to “what a reasonably prudent amusement ride operator should or should not do, and the codes as they relate to that” but not with respect to “violations of certain standards that are not causally related to the accident.” Arguing Reiss lacked a background in design, White urged the court to consider also limiting Reiss’s testimony in that regard. The trial court agreed and noted “this was not a products [design defect] case.” See Tex. Civ. Prac. & Rem. Code Ann. � 82.005(a) (West 2011) (design defect claim in products liability action requires proof that safer alternative design existed at time product left manufacturer’s control and defect was producing cause of personal injury for which recovery is sought). At a subsequent pre-trial hearing, the trial court reiterated its ruling that “design issues . . . are out” and noted specifically that Barrera had represented she was not making any strict liability claims. See Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex. 1993) (negligence requires showing of proximate cause; strict liability requires showing of producing cause). The trial court stated, “operation issues . . . how [White] was operating the train, that’s what we’re going to focus on.” The trial court visited the “design issues” again at trial.  Barrera sought to question White about a code “provision that requires that moving parts on these types of amusement rides be guarded.”  Barrera asserted she could ask White about his familiarity with the provision without running afoul of the trial court’s earlier rulings, but the court disagreed. During trial, Barrera called White as a witness. During direct examination by Barrera, White testified he warned passengers before the ride began to keep their feet and hands inside the train. He further testified that occasionally a child would “touch the top of the tire as it was rotating,” and he would stop them from doing that although he did not consider “it a bit [of a] safety risk until Ashley got hurt.” In his view, the “only part” on the train that posed a risk for the passengers were the tires, and he did “everything” he could to keep children away from them. Based on that testimony and arguing White had “opened the door,” Barrera again sought to question White about the provision concerning guards or, at a minimum, read the provision to the jury. Relying on the prior rulings concerning “design issues” and without hearing any response from White, the trial court refused Barrera’s request.

Prior to resting, Barrera made an offer of proof in question and answer form as to the evidence she would have presented had the trial court allowed her. Through Reiss, Barrera established that the ASTM standards for design of amusement rides require a manufacturer to (a) provide machine guards to prevent contact with moving machinery or parts; (b) perform a ride analysis that includes patron restraint and containment analysis; and (c) design restraints to minimize opportunity for pinching or unintentional trapping of fingers, hands, feet, and other parts of a passenger’s body. See Am. Soc’y Testing Materials F 2291-4, � & #65533; 5 (ride analysis), 6.3.8 (restraints), 13.5 (machine guards). She also established that provisions in the Texas Administrative Code prohibit the operation of a ride that does not meet inspection standards and require an owner or operator of a mobile amusement ride to perform and record daily inspections of the ride and safety restraints. See 28 Tex. Admin. Code �5.9004(c)(6), (e). During this offer of proof, Barrera also elicited opinion testimony from Reiss that White had violated the ASTM standards and that the train would not have passed inspection because “too many serious safety deficiencies [existed] that would most certainly cause injury to the passenger or operator.” In “closing,” Barrera argued she was presenting her case “under the theory of negligent design and not the traditional 402(a) product liability” and that it was her “understanding the Court did not allow [her] to move forward with the negligent design theory based on qualifications” and lack of causation.

II. Discussion
Barrera’s three issues challenge the trial court’s exclusion of the evidence and testimony of the applicable industry standards and codes. Barrera asserts the excluded evidence and testimony was relevant to the standard of care White owed his passengers in the operation of the train and his breach of that duty. Barrera also asserts that, once White “opened the door,” the excluded evidence and testimony should have been allowed.

A. Standard of Review

A trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion. See State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001); Gammill, 972 S.W.2d at 718-19. An abuse of discretion occurs when the decision is arbitrary, unreasonable, or without reference to any guiding rules or principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam).

B. Applicable Law

Under Texas Rules of Evidence 401 and 402, evidence that is relevant, that is, that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence,” is generally admissible. See Tex. R. Evid. 401, 402. When the testimony of an expert is sought to establish a claim, the trial court has the gatekeeper function of ensuring that the expert’s testimony is based on a reliable foundation and is relevant to the issues in the case. Gammill, 972 S.W.2d at 727; Robinson, 923 S.W.2d at 556. The relevancy requirement, which incorporates traditional relevancy analysis under rules 401 and 402, is met if the expert’s testimony is “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Robinson, 923 S.W.2d at 556 (quoting United States v. Downing, 753 F.2d 1224, 1242 (3rd Cir. 1985)). If a party objects to evidence or expert testimony, the proponent of the evidence or testimony bears the burden of demonstrating admissibility. Id. at 557. If the objecting party subsequently introduces evidence similar in character to the evidence he sought to exclude, the objected-to evidence may be admitted. See Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 402 (Tex. App.-Houston [1st Dist.] 2001, pet. denied). To preserve on appeal a complaint that the court erred in excluding evidence or testimony, the proponent must raise the argument at trial. See, e.g., Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 621 & n.21 (Tex. App.-Houston [14th Dist.] 2004, pet. denied); Tex. Dep’t of Transp. v. Olson, 980 S.W.2d 890, 898 (Tex. App.-Fort Worth 1998, no pet.).

C. Application of Law to Facts

Barrera’s first and second issues complain of the trial court’s pre-trial ruling excluding evidence and Reiss’s testimony concerning the applicable industry standards and codes. Barrera asserts the court’s ruling was erroneous because the standards and codes were relevant to White’s operation of the train, and “evidence of the standard of care applicable in this case, and [White’s] violation of those standards and codes was admissible as evidence of [White’s] negligence.” However, Barrera did not raise this argument at trial. Barrera’s argument to the trial court, as reflected in the offer of proof, was that the evidence and testimony was relevant to her negligent design claim. Specifically, she argued as follows: We were presenting our case under the theory of negligent design and not the traditional 402(a) product liability. It’s my understanding the Court did not allow us to move forward with the negligent design theory based on qualifications and other reasons you have just mentioned. The “other reasons” the court “ha[d] just mentioned” concerned “the inspection issues.” The court stated that “because there was no evidence presented to me when I made pretrial rulings, or previously, that there was a causal link between some of these so-called inspections and the injury in this case, the Court excluded that information.” Nothing in Barrera’s offer of proof, or in the court’s rulings, reflects Barrera argued to the court that the excluded evidence was relevant to White’s operation of the train. Because Barrera’s complaint on appeal does not comport with her complaint at trial, we conclude she failed to preserve error. See Carousel’s Creamery, L.L.C. v. Marble Slab Creamery, Inc., 134 S.W.3d 385, 395 (Tex. App.-Houston [1st Dist.] 2004, pet. dism’d) (“A party may not assert on appeal a basis for admission of evidence not presented to the trial court.”) (citation omitted). We decide her first two issues against her.

In her third issue, Barrera asserts the court erred in not allowing evidence and testimony of the applicable industry standards and code after White “opened the door.” The testimony Barrera asserts “opened the door” was White’s testimony that he did “everything” he could to keep children away from the tires. Barrera asserts the excluded evidence should have been allowed to rebut White’s testimony. In support of her contention, Barrera cites to Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App. 2002), Southwestern Electric Power Co. v. Burlington Northern Railroad Co., 966 S.W.2d 467 (Tex. 1998), Moore v. Bank Midwest, N.A., 39 S.W.3d 395 (Tex. App.-Houston [1st Dist.] 2001, pet. denied), Stinson v. Arkla Energy Resources, 823 S.W.2d 770 (Tex. App.-Texarkana 1992, no writ), and Trans-State Pavers, Inc. v. Haynes, 808 S.W.2d 727 (Tex. App.-Beaumont 1991, writ denied). In those cases, the appellants either sought to offer evidence to rebut evidence presented by appellees or complained of evidence admitted to rebut evidence appellants themselves or a third party had presented. Feldman, 71 S.W.3d at 755-56 (admission); Sw. Elec. Power, 966 S.W.2d at 472-73(same); Moore, 39 S.W.3d at 401-02 (same); Stinson, 823 S.W.2d at 772 (exclusion); Haynes, 808 S.W.2d at 729-32 (same). Those cases, however, have no application to the facts before us. Barrera called White as her witness, and the testimony which she claims “opened the door” was elicited by Barrera during her direct examination of White.

Because the authorities Barrera cites to support her argument are inapplicable, we decide Barrera’s third issue against her. See Tex. R. App. P. 38.1(h).

III. Conclusion
Having decided Barrera’s three issues against her, we affirm the trial court’s judgment. 

DOUGLAS S. LANG JUSTICE