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[W] Healthcare Centers of Texas3/7/2002
volunteers proximately caused the boys' damages. Id. at 476. In Doe, the volunteer was performing community service as part of a sentence for a conviction of driving while intoxicated. Id. at 475. The volunteer also had one other DWI conviction. Id. The court held the prior DWI convictions did not indicate criminal conduct in any way akin to sexual assault of young boys. Id. at 478. Therefore, if the Boys Club had investigated the volunteer, its investigation would not have caused the club to reasonably anticipate his subsequent sexual assaults of the boys. Id.
In this case, LaPorte's negligence was both foreseeable and the cause in fact of Mrs. Underwood's and Mrs. Rigby's damages. Almost every witness testified that it was foreseeable that Jones could harm one of the elderly female residents. Jones's history at Anahuac, San Jacinto Hospital, and LaPorte indicated he displayed sexually deviant behavior and posed a threat to elderly disabled residents. Further, LaPorte's negligence was a substantial factor in bringing about the harm to Mrs. Underwood and Mrs. Rigby. LaPorte argues that it simply created a condition that made the assault possible; therefore, the causal link is too attenuated to show cause in fact. This is not a case, however, where all forces involved in the original act of negligence had come to rest. Nor is this a case, such as Doe, in which the defendant could not have known the propensity of the actor had it investigated him. Here, Jones's prior conduct was indicative of his future conduct and the original act of LaPorte's negligence had not come to rest at the time of the assault on Mrs. Underwood.
Considering the evidence in the light most favorable to the verdict, we find the evidence is legally sufficient to show LaPorte's negligence was a substantial factor in bringing about the injury. After considering all the evidence both in support of and contrary to the jury's finding of proximate cause, we find the evidence is not so weak that the finding is clearly wrong and manifestly unjust.
LaPorte further contends the jury's apportionment of eighty percent of the fault to LaPorte and twenty percent of the fault to Dr. Rapp is not supported by factually sufficient evidence. Because we have discussed the evidence supporting the jury's finding of proximate cause and found the evidence sufficient, we need not repeat that discussion here.
There is also evidence that Dr. Rapp, who knew Jones's history at Anahuac and at San Jacinto, but still recommended his admission to LaPorte, was at fault. Even if a different percentage allocation could be supported by the evidence, an appellate court may not substitute its judgment for that of the jury. Humble Nat'l Bank v. DCV, Inc., 933 S.W.2d 224, 235 (Tex. App.--Houston [14th Dist.] 1996, writ denied). Having found sufficient evidence that both LaPorte and Dr. Rapp were at fault, we find no basis for interfering with the jury's apportionment of negligence. Accordingly, we overrule issue five.
In its sixth issue, LaPorte contends it is entitled to a new trial in the interests of fairness and justice. Texas Rule of Appellate Procedure 43.3 states:
When reversing a trial court's judgment, the court must render the judgment that the trial court should have rendered, except when:
(a) a remand is necessary for further proceedings; or
(b) the interests of justice require a remand for another trial. TEX. R. APP. P. 43.3.
Appellate courts have remanded to the trial court in the interest of justice when the applicable law has changed between the time of trial and the disposition of the appeal, precedent has been overruled, or to allow a party to amend p
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