Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Zuniga v. Medina

Court of Appeals of Texas, Fourth District, San Antonio

May 24, 2017

Jennifer L. ZUNIGA, Appellant/Cross-Appellee
v.
Christopher MEDINA, Richard Medina, and Shelly Medina, Appellees/Cross-Appellant1

         From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2011-CI-10872 Honorable Larry Noll, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice, Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

          MEMORANDUM OPINION [1]

          Rebeca C. Martinez, Justice

         In the underlying lawsuit, Jennifer L. Zuniga sued Christopher J. Medina for negligence and gross negligence to recover damages she sustained when the vehicle Medina was driving struck Zuniga from behind as she was walking. Zuniga also sued Medina's parents for negligent entrustment. Based on the jury's verdicts, Zuniga was awarded damages against Medina, but a take nothing judgment was entered with regard to her claim against Medina's parents. Zuniga and Medina both appeal.

         In her appeal, Zuniga complains about the trial court's decision to order separate trials on her claims against Medina and her claim against Medina's parents. Medina asserts three issues in his cross-appeal contending: (1) the evidence is legally insufficient to support the jury's finding that he was grossly negligent; and (2) the trial court erred in granting Zuniga's motion requesting attorney's fees and expenses pursuant to Texas Rule of Civil Procedure 215.4(b) or, in the alternative, the trial court erred in determining the amount of expenses Zuniga should be awarded.

         Gross Negligence

         In his first issue, Medina contends the evidence is legally insufficient to support the jury's finding that he was grossly negligent.

         A. Gross Negligence and Standard of Review

         Gross negligence involves two components: an objective component and a subjective component. Reeder v. Wood Cty. Energy, LLC, 395 S.W.3d 789, 796 (Tex. 2012); Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). First, viewed objectively from the actor's standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others. Lee Lewis Const., Inc., 70 S.W.3d at 785. Second, the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. Id.

         Gross negligence must be proven by clear and convincing evidence. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008). In a legal sufficiency review, we review all of the evidence in the light most favorable to the jury's finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that Medina's conduct deviated so far from the standard of care as to create an extreme risk and Medina was subjectively aware, but consciously indifferent to, this risk. Id. Some evidence of simple negligence is not evidence of gross negligence. Lee Lewis Const., Inc., 70 S.W.3d at 785. Conversely, some evidence of care does not defeat a gross-negligence finding. Id. Circumstantial evidence is sufficient to prove either element. Id.

         B. Extreme Degree of Risk

         Medina challenges the legal sufficiency of the evidence to support the first element of Zuniga's gross negligence claim in two sentences in a footnote of his brief. We will assume for purposes of our opinion that the footnote properly briefed this issue.

         "The first element, 'extreme risk, ' means not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff." Lee Lewis Const., Inc., 70 S.W.3d at 785. "[T]he risk must be examined prospectively from the perspective of the actor, not in hindsight." Columbia Med. Ctr. of Las Colinas, Inc., 271 S.W.3d at 248.

         Viewing the evidence in the light most favorable to Zuniga, Medina stopped his truck on a side road just before the entrance to a school parking lot to speak with two friends who were standing at the passenger side of Medina's truck. A friend in another vehicle approached Medina from behind and honked because Medina was blocking the path to the parking lot entrance.

         After the other vehicle honked, Medina proceeded to "mess" with the other driver by shifting his truck into reverse and backing toward the other vehicle before shifting into drive and entering the parking lot. Medina accelerated rapidly through the parking lot, reaching a speed of 24 miles per hour. In order to reach a speed of 24 miles per hour, Zuniga's accident reconstructionist, Dr. Jahan Eftekhar, testified the accelerator pedal must have been pressed almost to the floor. Although the parking lot did not have a posted speed limit sign, evidence was introduced to show the speed limit was 10 miles per hour.

         As Medina approached the exit to the parking lot intending to turn right on the roadway, Medina decreased his speed to approximately 19 miles per hour, but he did not stop at the exit. Medina looked only to his left and struck Zuniga as he accelerated while turning right to exit. Although ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.