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Cartwright v. Armendariz

Court of Appeals of Texas, Eighth District, El Paso

May 8, 2019

ROSARIO CARTWRIGHT and ISHMAEL CARTWRIGHT, Appellants,
v.
FAVIOLA ARACELI ARMENDARIZ, Appellee.

          Appeal from the 143rd District Court of Ward County, Texas (TC# 14-09-23446-CVW)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          Yvonne T. Rodriguez, Justice.

         In this automobile accident case, Appellants Rosario and Ishmael Cartwright contend that the jury's take-nothing verdict against them was improper both because the verdict rested on legally and factually insufficient evidence, and because the trial court erred by preventing the jury from hearing evidence that the defendant driver received a traffic ticket for failing to stop at a stop sign immediately before the crash. The Cartwrights also maintain the trial court improperly excluded certain medical records.

         We reverse and remand for a new trial.

         BACKGROUND

         The collision in this case occurred in Dawson County on August 23, 2013.[1] The defendant, Faviola Araceli Armendariz, was the driver of a vehicle in which Ishmael Cartwright[2] was a passenger. Armendariz, called as an adverse witness by the plaintiffs, testified that she was driving Cartwright and her cousin Humberto from Monahans to Lubbock to go shopping for school clothes. Along the way, Armendariz stopped in Midland to pick up her friend Stephanie Mendoza and Mendoza's baby. Cartwright was seated in the back of the vehicle on the right-hand side, and Mendoza and her baby were seated in the back on the left-hand side. Armendariz had no memory of the collision. She testified that her last memory before waking up in an ambulance on the way to the hospital was missing a turn on the road to Lamesa that went to Lubbock. She did not remember if she ran a stop sign or was using her cell phone at the time. Mendoza and her baby died in the accident. Armendariz suffered bruises and a strained muscle in her hip. According to Armendariz, Humberto suffered scratches on his arm. To Armendariz's knowledge, everybody in the car suffered injuries. On cross-examination, she testified that she did not mean to hurt Cartwright and that she was in counseling relating to the accident.

         Rosario Cartwright testified as to her emotional reaction to the accident and the extent of her son Ishmael's injuries. She explained that she and Ishmael were originally going to go on a trip to Port Aransas, but Ishmael wanted to go with Humberto to Lubbock, so she allowed him to go to Lubbock while she went to Port Aransas. She testified that she had been out on a deep-sea fishing boat with her cell phone in her vehicle on land and did not learn that Ishmael had been flown to a hospital in Lubbock until after she had returned from fishing late in the evening. She left for Lubbock the next morning and met him at University Medical Center.

         Ishmael stayed in the hospital for eight days. Rosario testified that her son had a fractured pelvis, a punctured lung, a bleeding kidney, a liver issue, and stitches on his foot because he was ejected from the back of the vehicle through a window. She testified that Ishmael was unable to take care of himself for a period of time, and that she had to miss work at her job at a convenience store because he could not stand or sit up on his own and she had to help him get in and out of the shower. According to Rosario, Ishmael forced himself to start getting up in late October and attended school in a wheelchair before using crutches and eventually learning how to stand up on his own and start taking care of himself by the end of October or beginning of November. She testified that after the accident, Ishmael had changed, becoming "depressing, angry, being impatient" and that he would get "nervous" and start to panic "if vehicles start like hitting the brakes or they're speeding and they suddenly start moving fast[.]" Rosario stated that she was responsible for Ishmael's medical bills because he was a minor at the time. She testified the helicopter flight to the hospital cost almost $26, 000 and the bills from UMC were almost $67, 000, not counting other miscellaneous bills from different doctors and surgeons.

         On cross-examination, Rosario testified that she had a hard time getting Ishmael to go to the doctor, and that he refused physical therapy because they did not have Medicaid or any kind of insurance. She also testified that his liver injury healed, and a statement she made at deposition that Ishmael had broken only one rib on the left side was read to the jury. She also admitted that a health care provider had stated that Ishmael's hip was okay, although she maintained that he still had trouble with it. She also testified that Ishmael has fainting spells where he blacks out. Since the accident, Ishmael and his girlfriend had a baby. Following Ishmael's accident, Rosario sued her new employer after she suffered an on-the-job injury, and Rosario admitted that this also affected the family's ability to get back on their feet financially.

         Ishmael Cartwright testified that he was sixteen at the time of the accident. He was not employed at the time of the accident nor at the time of trial. He testified that his friend Humberto had invited him to go back-to-school shopping in Lubbock. Once they picked up Stephanie in Midland, the driver took a route that Ishmael was unfamiliar with, although he had traveled to Lubbock before. Ishmael testified that no one in the car was using a phone to use Google Maps or anything similar. He further testified that Armendariz missed the turn to Lubbock, and that once they had returned to the road they needed to be on, Armendariz ran a stop sign, which caused the accident. He stated that Armendariz was using her phone at the time, but that he could not tell what she was doing. He saw the stop sign go past and then saw a car coming from the right side before the collision. He was not wearing a seat belt because his seat belt in the car did not work, which he said he told Armendariz; she acknowledged that it was broken. He had one headphone in and was listening to music on his phone immediately before the collision. He did not remember the moment of impact, but he did remember being on the side of the road after the impact and being taken into the helicopter.

         With respect to his injuries, Ishmael testified that he had broken all his ribs, which caused a hole in his lung. He also had a fractured pelvis, internal bleeding, and stitches or staples on his foot. He could not walk for two or three weeks and he was in pain. He agreed with his mother's testimony that he was unable to take care of his own basic needs until late October or early November. He testified that after the accident he would feel worn out and tired more easily, as well as tightness when the weather changes. He also felt depressed and angry. He stated that he knew how to drive but did not have a driver's license or drive himself because of the accident.

         On cross-examination, Ishmael agreed that in early October when he had a follow-up appointment with a doctor, he had stopped using his crutches even though he was supposed to be using them. He admitted that at deposition he stated that his doctor did not believe the blackouts were related to the accident. He testified that he will drive short distances but if he is on a highway or big trucks are on the road, he felt apprehensive.

         At the close of the plaintiffs' case-in-chief, the Cartwrights moved for admission of medical billing records, which the trial court admitted in part and excluded ...


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