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Benson v. Chalk

Court of Appeals of Texas, First District

November 21, 2017


         On Appeal from the 129th District Court Harris County, Texas Trial Court Case No. 2011-27959

          Chief Justice Radack and Justices Jennings and Lloyd.


          Terry Jennings Justice

         Appellant, Roberta Benson, challenges the trial court's judgment, entered after a jury trial, in the suit for negligence and wrongful death[1] brought against her by appellees, Fred Chalk, individually, and Steve Chalk, individually and as next friend of Drucilla Henkhaus (the "Chalks"). In six issues, Benson contends that the trial court erred in admitting a video recording of an out-of-court experiment and excluding impeachment testimony, eyewitness statements contained in a law enforcement collision report and investigation file, and testimony on causation.

         We affirm.


         In their third amended petition, the Chalks alleged that on July 7, 2010, a red Nissan minivan, driven by Mary Herron-Anders ("Anders"), [2] collided with a black Lexus sedan, driven by Benson, at the intersection Apple Tree Road and Wilcrest Drive (the "intersection"), which was controlled by a traffic signal. Anders's passenger, Drusilla Henkhaus (the "decedent"), the mother of Fred and Steve Chalk, sustained severe internal injuries in the collision and later died. According to the Chalks, Benson failed to use ordinary care by entering the intersection in disregard of a red traffic light, not controlling the speed of her car, and not keeping a proper lookout and timely applying her brakes. And Benson's failure to use ordinary care proximately caused the decedent's death. The Chalks sought actual damages and damages for their loss of companionship and their mental anguish.

         Benson filed an answer, generally denying the allegations and asserting that the collision was instead caused by the negligence of Anders.

         At trial, Benson testified that she lives on Apple Tree and is familiar with the traffic signal at the intersection. At 7:50 p.m. on July 7, 2010, she drove her Lexus sedan east down Apple Tree toward the intersection. Benson "remember[ed] seeing the light green, " but could not recall her location on Apple Tree when she noticed it. However, she was "near the intersection" when she looked up and saw the green light and "the light was green when [she] got there." Benson noted that there was not another motorist in front of her on Apple Tree and "there were stopped cars" in the southbound lanes of Wilcrest, although she initially stated that there were no such cars there. As she entered the intersection, she looked to her left and "glanc[ed] to her right." As Benson traveled across Wilcrest, she heard a "bam"; she was suddenly on a curb, with the passenger side of her car "smashed in." Although she initially told a law enforcement officer at the scene that she "thought" she had the green light, she "24 hours later, " after having "calmed down, " became "certain" that she had the green light.

         In her deposition, which was presented to the jury, Anders testified that at approximately 7:00 p.m. on July 7, 2010, while it was daylight, but rainy, she drove her Nissan minivan in the left lane of the two northbound lanes of Wilcrest. Although trees lined the sides of the roadway, "they were not obstructing the light" and she had a clear view of the traffic signal at the intersection of Apple Tree. As she approached the intersection, the traffic light was green, and it stayed green. Her passenger, the decedent, suddenly said, "The car is not stopping." Anders then saw Benson's Lexus sedan for only a "split second, " and she swerved to try to avoid a crash. After the collision, the decedent said that she smelled smoke, her stomach hurt, and she felt nauseous. She got out of the minivan, laid on the grass, and was later transported by ambulance to a hospital.

         Dr. Charles Aramburo, a trauma surgeon at Memorial Hermann Hospital, testified that he was the decedent's admitting physician. When she arrived at the hospital, the decedent was unresponsive and never regained consciousness. She suffered a ruptured spleen and liver, and subsequently died. During Aramburo's testimony, the trial court admitted into evidence the decedent's medical records and certificate of death, which reflects that she died from "blunt force injuries."

         April Yergin, the Chalks' expert witness on traffic-collision reconstruction, testified that she has a bachelor's degree in aeronautical engineering, attended classes at Northwest Traffic Institute, has twenty years of experience in traffic-collision reconstruction, and investigates 150 to 200 traffic collisions per year. In this case, she examined records of the City of Houston Department of Public Works and Engineering ("the Department") to determine how the traffic-light sequence at the intersection was programmed. She then went to the intersection, observed the flow of traffic and function of the traffic lights, and compared the light sequencing against the Department's records. She saw that the traffic lights controlling Wilcrest at the intersection remain green at all times unless a motorist approaches on Apple Tree. Sensors mounted on the traffic lights regularly cycle, periodically looking for changes in pixilation on Apple Tree. When a change is detected, the traffic signal on Wilcrest begins to cycle to red to allow traffic on Apple Tree to pass through the intersection.

         Yergin conducted an out-of-court "experiment" to depict the sequencing and timing of the traffic lights at the intersection. Noting that the collision occurred on July 7, 2010 at 7:55 p.m., she, in January 2013, went to the intersection at approximately 7:00 p.m., staying until 8:30 p.m. Yergin observed how the traffic flowed and noted the duration of each signal light. She then had her assistant, from different directions and speeds, drive through the intersection several times. Yergin made video recordings of the signal lights controlling traffic eastbound on Apple Tree, as Benson had traveled at the time of the collision, and northbound on Wilcrest, as Anders had traveled at the time of the collision. Yergin explained that "[i]n every scenario, " in order to trigger the signal lights controlling Wilcrest to begin cycling to red, a motorist traveling eastbound on Apple Tree and approaching the intersection had to "stop or come within a mile per hour" in front of the signal light on Apple Tree. She noted that while at the intersection, she did not see any motorist simply "catch a green light" on Apple Tree, unless another motorist happened to be traveling in front of them.

         Yergin further testified that the video recordings fairly and accurately depict the functioning of the traffic signals at the intersection and, based on the Department's timing charts, the light sequencing at the time she was at the intersection was the same as that at the time of the collision. Further, the timing listed in the charts matched what she observed at the intersection. Although the collision occurred during daylight hours in the month of July and she conducted her experiment after dark in the month of January, Yergin noted that the "lighting conditions [were] not an issue." Rather, the issue was the timing of the lights, which, according to the Department's records, had not changed.

         During cross-examination, Yergin explained that the Department's records do not differentiate between months; rather, they differentiate between days of the week. And because the collision occurred on a Wednesday, she visited the intersection on a Wednesday. Yergin also explained that once triggered, the traffic light on Apple Tree remained green for only five seconds, then turned yellow for three and one-half seconds, and then turned red. The traffic light on Wilcrest would then turn green after a one-and-one-half-second lag. Yergin noted that the timing of the traffic light remained the same regardless of whether it was daytime or nighttime and its camera detected images within 50 to 150 feet of its sensor. She further explained that the sensor could not be triggered by headlights alone:

I'm not sure exactly how that particular camera picks up objects. It has to do with visual pix[i]lization. I would assume at night it's looking at lights, but headlights can be seen for a long distance. So, you wouldn't want it to trigger when a car is, say, you know, 300 feet away because then it would have to wait for 10, 15, 20 seconds for that car to get there. So, I believe it has some sort of visual ability to see at night . . . .

         Yergin did note that during her experiment, the reflective vest that she was wearing appeared to have triggered the traffic light on Apple Tree to change. She also noted, however, that there was not a cross-walk or pedestrian signals at the intersection, it was not a pedestrian-friendly area, and there had been no mention in this case of any pedestrians in the area at the time of the collision.

         The Chalks offered as a "demonstrative exhibit" three, thirty-minute video recordings of Yergin's out-of-court experiment. Benson objected to the admission of the video recordings on the ground that they are more prejudicial than probative, in that the lighting conditions depicted are not substantially similar to those that occurred at the time of the collision. Benson asserted that Yergin had failed to explain to the jury how the lighting conditions affected the sensor's pixel detection and, thus, the triggering of the light. The trial court admitted the video recordings as "demonstrative exhibit[s]" and portions were played for the jury.[3]

         Prior to trial, Benson had informed the trial court that she intended to present to the jury the deposition testimony of Cindy Maddox, who witnessed the collision; Houston Police Department ("HPD") Officer M. Hroch, who was dispatched to the scene of the collision; and HPD Officer A. Michon, who investigated the collision. The trial court sustained the Chalks' objections, discussed below, to the admissibility of certain portions of the depositions. Benson then presented to the jury excerpts of the remaining portions of the deposition testimony.

         In her videotaped deposition, Maddox testified that "right before the collision, " she was driving her car on Wilcrest "[a]bout 400 feet" behind Anders's red minivan. Maddox was not focused on the minivan or on Benson's car when it entered the intersection. She noted that trees along both sides of the street were "really overgrown" to the point that they obstructed a clear view of the traffic signal at the intersection. When asked whether she could "say whether it's more likely than not that the light controlling [her] lane of traffic was red or green at the time of the collision, " she responded, "I don't know." At the scene, Maddox had given to Benson an envelope, on which Maddox had written her name and telephone number, and the trial court admitted it into evidence.

         In his deposition, which was read into the record, Officer Hroch testified that at the time of the collision, he had been a law enforcement officer for approximately three years and had attended a "basic accident course." On July 7, 2010, he was dispatched to investigate the collision. He noted that Benson, Anders, and the decedent were "shaken up" and it would not have been unusual for a driver to use the word, "thought, " "with regard to the [color of the] light they had."

         In his deposition, which was read into the record, Officer Michon testified that at the time of the collision, he had been a police officer for approximately one year, attended two weeks of "accident investigation" training, and been assigned to HPD's Vehicular Crimes Division for five weeks. After he was assigned to investigate the collision, he interviewed both drivers and Maddox. Michon established that Maddox actually witnessed the collision. When asked his impression of whether Anders had seen the traffic light, he responded, "I did not believe that she had seen the light. I believe that she was relying more on her passenger." The trial court admitted into evidence redacted versions of the HPD "crash report" and "accident records."

         Before the trial court read its charge to the jury, [4] Benson made an offer of proof regarding the excluded portions of the deposition testimony of Maddox and Officers Hroch and Michon. In the proffered portion of Maddox's deposition testimony, she admitted that she had originally, at the scene, told Officer Hroch that Anders's "van ran the red light and caused the accident." Maddox also admitted that eight days after the collision, she, in a recorded interview with an insurance adjuster, had stated:

As I was coming home, . . . I was about three car lengths behind this red van. I saw the light in front of me, and the light in front of the red van turned red and I started slowing down and I then, of course-that we had the red light, I saw the other-the dark car come off of [Apple Tree] like she would have for a green light, and I saw her coming out and I didn't see that red van put on brake lights or anything, and I knew instantly that the van just didn't see the red light, and then I just saw her broadside or hit that dark car coming off of [Apple Tree].
. . . .
There is absolutely no doubt in my mind that the light was red because I thought-because when I saw that dark car, I said, oh, my God, she's going to-that van is going to hit that car because I never saw any brake lights on the van, so I knew that the van just did not, somehow, for some reason, did not see, did not pay attention to that red light. I mean, it was red. You know, I saw it red and that's-I was shocked that the van didn't stop.

         Maddox further admitted that several weeks after the collision, she told Officer Michon that she was "about four car lengths behind the red van" and there was "no doubt that the van had the red light and ran the red light."

         In the proffered portion of his deposition testimony, Officer Hroch noted that he had arrived at the scene approximately ten minutes after the collision. He described the positions of automobiles, the drivers, and a passenger. Hroch blocked off the street from other motorists, gathered information from the drivers, summoned tow trucks, observed the functioning of the signal light, and confirmed that it was functioning properly, "as red and green opposite." He noted that there was nothing obscuring the views of the traffic signals. And Hroch explained that "closer to the beginning of [his] arriving on scene, " Maddox walked up to him, stated that she saw the collision, and provided a statement, which Hroch recorded in the collision report. Maddox told Hroch:

I was driving north on Wilcrest and I was behind the red van. I began to slow down because we had a red light and the van just drove right through the intersection and did not even slow down. The van ran the red light and caused the accident.

         Hroch noted that Maddox was the sole independent witness at the scene and "seemed sure." Based on her statement, Hroch opined that Anders had caused the collision.

         In the proffered portion of his deposition testimony, Officer Michon noted that on September 30, 2010, he met with Maddox, who ...

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