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Mcknight v. Calvert

Court of Appeals of Texas, First District

September 7, 2017

PHILLIP MCKNIGHT AND TAMI W. JOHNSON, Appellants
v.
MATTHEW CALVERT, Appellee

         On Appeal from the 334th District Court Harris County, Texas Trial Court Case No. 2011-27692

          Panel consists of Chief Justice Radack and Justices Keyes and Massengale.

          OPINION

          Michael Massengale Justice.

         This is an appeal from a personal-injury lawsuit filed after a car wreck. Appellee Matthew Calvert ran a stop sign in a residential neighborhood, injuring appellant Phillip McKnight. Calvert admitted his failure to stop, but he claimed he couldn't see the sign because it was covered by trees.

         McKnight and his wife, Tami Johnson, sued Calvert to recover damages caused by the accident. Calvert, in turn, designated the City of Houston and the owners of adjacent property as responsible third parties, arguing that the accident was caused by their negligent failure to maintain the sign by trimming the trees.

         Before trial, McKnight and Johnson moved for a directed verdict with respect to both the city and the neighboring homeowners. They argued that no evidence had been introduced to establish that the city or the homeowners owed any duty with respect to the stop sign. The trial court denied the motions. The jury found that Calvert, the city, and the homeowners were each negligent, allocated proportional fault to each, and awarded damages.

         McKnight and Johnson raise three issues on appeal. They argue that the trial court erred by denying their directed-verdict motions and that the jury's award of zero dollars for past disfigurement was against the great weight and preponderance of the evidence.

         We conclude that the trial court correctly denied the motions for directed verdict. Additionally, the jury's award of zero dollars for past disfigurement was not against the great weight and preponderance of the evidence. Accordingly, we affirm the judgment of the trial court.

         Background

         Matthew Calvert, a resident of the United Kingdom, visited his brother in Houston. While driving near his brother's home in the Montrose neighborhood, Calvert ran a stop sign and his car collided with a car operated by Phillip McKnight. Calvert suffered no injuries, but McKnight was transported to the emergency room.

         The accident occurred near the home of Thaddeus and Jennifer Coffindaffer. Calvert reported to a police officer that he had not seen the stop sign because it was obscured by a tree in the Coffindaffers' yard.

         Following the accident, McKnight and his wife, Tami W. Johnson, brought a suit for damages against Calvert. Before trial, Calvert designated the City of Houston and the Coffindaffers as responsible third parties.[1] Calvert alleged that the city was responsible for maintaining the stop sign. He also alleged that the Coffindaffers were responsible for trimming the tree that obscured the stop sign.

         At trial, Calvert admitted that he ran the stop sign, but he maintained that he was not at fault because he didn't see it.

         The police officer who responded to the accident testified at trial. For ten years he had worked as a policeman in the vicinity of the accident location. During that time, he had not heard of or responded to any accidents at that intersection, and he had not pulled anybody over for running that stop sign. McKnight and Johnson offered into evidence an affidavit from a custodian of records for the Houston Police Department that indicated that it did not have any "vehicle crash incident reports" involving that intersection for the five years prior to the accident. The officer further testified that the city owned the stop sign, and that "in fairness" either the city or the Coffindaffers should be responsible for making sure the stop sign was not obscured by a tree. Finally, the officer testified that the tree at issue was located in the Coffindaffers' yard.

         The trial court admitted into evidence pictures of the stop sign taken immediately after the accident. Calvert's counsel asked the responding police officer to look at Defendant's Exhibit 10:

         (Image Omitted)

         Counsel asked: "Now when you look over there to the right-hand side . . . if you look real hard, you can see a stop sign back behind the tree, correct?" The officer responded, "Correct." Calvert's counsel then asked, "That's definitely tree branches that are in front of that stop sign, true?" Again the officer replied, "Correct." After questioning the officer about the need for trees to be trimmed over time, Calvert's counsel asked, "at some point it got big enough where it does create, at least potential restriction of visibility of this stop sign, fair?" According to the trial transcript, the officer responded, "Fairness." As indicated by the officer's testimony, the photograph depicted tree branches obscuring the stop sign. In addition, the trial evidence showed that the tree branches extended from a tree located in the Coffindaffers' yard.

         A neurosurgeon testified that he performed two surgeries on McKnight in order to alleviate neck and back pain, and that the surgeries were "proximately caused" by the car accident. The neurosurgeon testified that McKnight had "degenerative condition[s]" in his back. As a result of these conditions, the surgeon determined when he first met with McKnight that he would need "some decompression." The first surgery was complicated by McKnight's body weight- he was six feet tall and weighed 325 pounds. By the time of the second surgery, McKnight had gained "like about 60-something pounds" as a result of the "sedentary lifestyle he . . . had to have after the first surgery."

         McKnight also testified at trial. He testified that he had "a scar" on his neck as a result of the surgery. The record does not indicate that the jury was ever shown the scar. He denied gaining 60 pounds as a result of the first surgery, contending that he had "small percentage fluctuations in weight over time."

         After the close of the evidence, McKnight and Johnson moved for a directed verdict with respect to the third-party responsibility of both the city and the Coffindaffers. They argued that there was no evidence the city had notice of the tree covering the stop sign, and therefore it had no duty to correct the situation. They also argued that there was no evidence to support the imposition of a duty on the Coffindaffers to ensure that the tree did not obscure the stop sign. The trial court denied both motions.

         The jury found that negligence by each of Calvert, the Coffindaffers, and the City of Houston "caused the occurrence in question." Regarding the "percentage of the negligence that caused or contributed to the occurrence, " the jury found Calvert 33% responsible, the Coffindaffers 33% responsible, and the city 34% responsible. The jury awarded McKnight $60, 000 for past and future physical pain and mental anguish, $0 for loss of future earning capacity, and $0 for past and future disfigurement. The jury awarded Johnson $15, 000 for past and future loss of household services, $25, 000 for loss of consortium in the past, and $0 for loss of consortium in the future.

         The trial court entered judgment based on the jury's findings. McKnight and Johnson appealed.

         Analysis

         McKnight and Johnson raise three issues challenging the trial court's judgment. In their first two issues, they contend that the trial court erred by denying their motions for directed verdict based on the argument that no relevant duties were owed by the City of Houston or the adjacent homeowners. In their third issue, they argue that the jury's refusal to award damages for disfigurement was against the great weight and preponderance of the evidence.

         I. Designation of responsible third-parties

         In their first and second issues, McKnight and Johnson contend that the trial court erred by denying their motions for directed verdict with respect to the designated responsible third-parties, the City of Houston and the Coffindaffers. In both issues, they argue that no evidence established that either the city or the Coffindaffers owed a duty to warn of, or to correct, the obscured condition of the stop sign.

         A complaint about the denial of a motion for directed verdict is reviewed by the same standard as a challenge to the legal sufficiency of the evidence.[2] We view the evidence and inferences in the light most favorable to the jury's findings.[3] Such a challenge will be sustained only when (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact.[4]

         To prove negligence, "evidence must be produced to establish a duty, a breach of that duty, and damages proximately caused by the breach."[5] The threshold inquiry in a negligence case is duty.[6] The existence of duty is a question of law for a court to decide from the facts surrounding the occurrence in question.[7]

         A. City of Houston

         McKnight and Johnson contend that the trial court erred by denying their motion for directed verdict with respect to the City of Houston. They argue that the Texas Tort Claims Act establishes the parameters of the city's duty with respect to the maintenance of stop signs and traffic signals, and that the city had to have notice that the tree obscured the stop sign in order to have had a duty to warn of or to correct the condition.[8] McKnight and Johnson thus contend that because no evidence established that the city knew or should have known of the stop sign's obscured condition, the city had no duty to warn or to correct the condition.

         In response, Calvert argues that in order to designate the city as a responsible third party and submit a question to the jury regarding its responsibility for the accident, all he had to do was present "enough evidence to support a finding that the City of Houston was responsible for contributing to the occurrence in question and caused a portion of" the damages. As a result, he contends that he did not have to present evidence that the city had notice of the tree obscuring the stop sign.

         To be entitled to a jury issue that allowed the trier of fact to determine the percentage of responsibility of each party designated as a responsible third party, Calvert had to present sufficient evidence demonstrating that the city caused or contributed "to cause in any way the harm" to McKnight and Johnson, "whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these."[9] Calvert sought to establish that the city caused or contributed to cause McKnight's and Johnson's damages through a negligent act, namely that it negligently failed to warn of, or to correct, the obscured condition of the stop sign.

         The Tort Claims Act waives immunity for personal injuries and deaths proximately caused by a condition or use of personal or real property if a governmental unit would, were it a private person, be liable.[10] This use-of-property waiver is an exception to the general rule of governmental immunity.[11] In an exception to the exception, the waiver of immunity does not apply to claims arising from "the absence, condition, or malfunction of a traffic or road sign, signal or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice."[12]

         Sections 101.022 and 101.060 of the Tort Claims Act, read together, establish the duty owed by the State to a plaintiff who asserts a premises-liability claim involving a traffic signal.[13] The ...


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