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.

Mora v. Valdivia

Court of Appeals of Texas, Fourth District, San Antonio

July 17, 2019

David MORA, Texas Sterling Construction Co. a/k/a Texas Crushed Concrete, and Sterling Construction Company, Inc. a/k/a Sterling Delaware Holding Company, Inc., Appellants
v.
Martin VALDIVIA, Sr. and Maria Cervantes Valdivia, both Individually and as Sole Heirs of the Estate of Martin Valdivia, Jr., Deceased, Appellees

          From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2015CI09734 Honorable Michael E. Mery, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice

          OPINION

          PATRICIA O. ALVAREZ, JUSTICE

         This appeal arises from a personal injury suit filed after two constructions workers were traveling in their personal pickup truck, from San Antonio to Austin, immediately behind their foreman, and an unsecured toolbox fell out of their foreman's trailer. The workers stopped to retrieve the toolbox and were struck by a third vehicle; one worker was injured and the other was killed. Appellees, Martin Valdivia Sr. ("Martin Sr.") and Maria Cervantes Valdivia brought suit individually and as the sole heirs of the estate of their teenage son, Martin Valdivia Jr. ("Martin Jr."). Appellees asserted claims for negligence and gross negligence against Appellants Texas Sterling Construction Co. ("Texas Sterling"), Texas Sterling's parent Sterling Construction Company, Inc. ("SCC"), and Texas Sterling's foreman David Mora (collectively, "the Sterling Appellants").

         The jury found the driver of the third vehicle was neither negligent nor responsible for any percentage of responsibility for the accident. The jury also found Texas Sterling was grossly negligent based on an act or omission by Foreman David Mora and Safety Director José González. The jury awarded $9, 543, 000.00 in actual damages and $2, 800, 000.00 in exemplary damages.

         On appeal, the Sterling Appellants contend the evidence is legally and factually insufficient to support the jury's findings that (1) Martin Sr. and Martin Jr. were not in the course and scope of their employment at the time of the accident; (2) the driver of the third vehicle was neither negligent nor partially responsible for the accident based on the defense of sudden emergency; and (3) Texas Sterling was grossly negligent based on an act or omission by David Mora and José González. The Sterling Appellants also contend the trial court erred in admitting the police accident report while redacting portions of the same and excluding portions of San Marcos Police Officer Jeremy Sembera's testimony. We affirm the trial court's judgment.

         Factual and Procedural Background

         Prior to jury selection, the Sterling Appellants conceded that Texas Sterling, SCC, and Mora were responsible for the accident and stipulated to their negligence alleged in the appellees' petition; therefore, the jury only determined negligence as to Norberto Ruelas Reyes. Texas Sterling and SCC also stipulated to their negligence in failing to establish a cargo securement policy and failing to properly train their employees.[1] Therefore, we limit our summary of the evidence to that necessary to the disposition of the issues on appeal.

         A. The Accident

         Martin Sr. and Martin Jr. (the Valdivias) worked for Texas Sterling installing bridges, sidewalks, and driveways. David Mora was the Valdivias' crew foreman.

         Texas Sterling, the subcontractor on an Austin highway construction project (the "MoPac project"), assigned Mora's crew to perform the work. Each week, the crew traveled to Austin on Monday morning and returned to San Antonio on Friday or Saturday. Texas Sterling provided crew members hotel rooms and a per diem. Texas Sterling provided transportation for crew members in a company van; alternatively, crew members could opt to ride with Mora in his company pickup truck or drive their personal vehicles to Austin. All crew members were paid an hourly wage based on hours worked at the job site; crew members were not paid for travel time or personal travel costs, such as gas, mileage, or auto insurance. Employees' travel plans and routes were not controlled by Texas Sterling; the sole requirement was that employees arrive at the jobsite at 7:00 a.m., when their shift began.

         1. The Accident

         On January 19, 2015, the second week of the MoPac project, in the early morning hours, Martin Jr. and Martin Sr. elected to drive in Martin Sr.'s personal Ford F-150 pickup truck. Although not required to do so by Texas Sterling, Martin Sr. elected to meet Mora at the Texas Sterling San Antonio yard and follow him to Austin. Mora was towing a flat-bed trailer containing a large, 400-pound, eight-foot by four-foot by three-foot, empty, wooden toolbox. Mora constructed the toolbox out of Texas Sterling material to hold shovels, wood, saws, and other materials. The trailer also contained loose boards, bricks, and other materials.

         Martin Sr. was following Mora, at approximately sixty-five miles-per-hour, in the middle lane of traffic on Interstate Highway 35 North, at approximately 5:52 a.m., when the toolbox fell from Mora's trailer. Martin Sr. pulled over to the emergency shoulder on the right side of the roadway, exited his pickup truck, and attempted to retrieve the toolbox. Martin Jr. also exited the pickup truck. A white van swerved to avoid the toolbox and came to a stop in the left shoulder lane. A Chevy Tahoe, driven by Reyes, originally swerved to the left to avoid the toolbox, but upon seeing a person, turned to the right. Reyes clipped the corner of the toolbox, and collided with Martin Sr.'s truck, injuring Martin Sr. and killing Martin Jr. on impact. As vehicles continued to try and avoid the toolbox, a vehicle struck the white van in the left emergency lane and two eighteen-wheelers "pulverized" the wooden toolbox.

         2. The Investigation

         As San Marcos Police Officer Daniel Cook was traveling home after his shift that morning, he drove by the scene less than a minute after the accident. Officer Jeremy Sembera and Commander Christopher Tureaud relieved Officer Cook and took over the investigation. The officers interviewed witnesses, took photographs and measurements, and ultimately concluded Mora's unsecured toolbox was the contributing cause of the accident.

         At trial, Mora explained, "I thought-we thought we'd nailed [the toolbox], but we never strapped it down. We never strapped it." Mora further testified he worked on several jobsites for Texas Sterling and was never informed by the superintendent, or any other Texas Sterling or SCC supervisor, "that nailing [was] the inappropriate use of a securement with a box because it can come out when you're traveling down the roadway." Although Mora understood, by the time of trial, such methods were unacceptable, he did not know the toolbox was improperly secured at the time of the accident. Mora also acknowledged the trailer lacked a rear tailgate to prevent items from falling off the back and that he did not attempt to secure any other materials in the trailer. Texas Sterling never provided any training regarding installation of items or securement on a trailer. Mora further testified the only "securement securing" policy he remembers seeing or signing for Texas Sterling was after the accident.

         Texas Sterling and SCC sent a team of officers and supervisors to the scene consisting of (1) José González, Texas Sterling's Corporate Safety Director and SCC's Safety Professional; (2) Rob Mitchell, Texas Sterling's Division Safety Manager; (3) Nick Kakasenko, SCC's Vice President of Safety and Health; (4) Greg McVey, Texas Construction's Vice President of Safety Issues; and (5) Clint Warren, Texas Sterling's South Texas Operations Manager. Based on their investigation, interviews, measurements, and photographs, the team "came to the conclusion that [the accident] was not work related, so we did not report" either Martin Jr.'s death or Martin Sr.'s injuries to OSHA.

[W]e went through all the different scenarios, when it happened, where it happened, where they were going, and we determined that it was a work-that it was not a work-related incident.

Additionally, González testified that, in his position as corporate safety director and safety professional, he was "the professional who [made] those determinations for the company that- whether an employee is or is not in the course and scope of their employment."

         Although the same team notified Texas Sterling's risk management department of their determination of course and scope of employment, Texas Sterling still reported the "on-the-job" claims to its workers' compensation carrier, Hartford Insurance Company. Hartford denied the claims because the Valdivias were "traveling to and from work," a noncompensable claim under the Workers' Compensation Act. Texas Sterling did not appeal Hartford's determination. Several supervisors, including González and Kakasenko, testified they agreed with Hartford's determination the Valdivias were not in the course and scope of their employment at the time of the accident.

         C. The Charge of the Court

         The first issue before the jury was whether the Valdivias were in the course and scope of their employment with Texas Sterling at the time of the accident on January 19, 2015. The jury found they were not in the course and scope of their employment at the time of the accident.

         The second issue before the jury was negligence. The Sterling Appellants conceded negligence as to Texas Sterling, SCC, and Mora; however, the jury was asked to determine whether Reyes, the driver of the Chevy Tahoe, proximately caused the accident. The jury answered "No." The jury was also asked to apportion percentages of responsibility to those parties found to have caused or contributed to the accident. Over the Sterling Appellants' objection, the trial court included an instruction on "sudden emergency." The jury found Reyes did not bear any percentage of responsibility and apportioned the liability as follows: Texas Sterling 65%, SCC 30%, Mora 5%, and Reyes 0%. Lastly, the jury found the harm to Martin Sr. resulted from the gross negligence of Mora and González and that their gross negligence was attributable to Texas Sterling.

         The jury awarded $9, 543, 000 in actual damages and $2, 800, 000 in exemplary damages. This appeal ensued.

         On appeal, the Sterling Appellants contend (1) the evidence is legally and factually insufficient to support the jury's findings on course and scope of employment, defense of sudden emergency, and gross negligence; and (2) the trial court erred regarding evidentiary rulings that singularly or cumulatively resulted in harmful error. We affirm the trial court's judgment.

          We turn first to the Sterling Appellants' legal and factual sufficiency claims regarding whether the Valdivias were in the course and scope of their employment and whether the defense of sudden emergency supported the jury's finding regarding Reyes.

         Legal and Factual Sufficiency Claims

         The Sterling Appellants challenge the legal and factual sufficiency of the evidence supporting the jury's findings that (1) the Valdivias were not in the course and scope of their employment at the time of the accident and (2) Reyes was neither negligent nor partially responsible for the accident based on the defense of sudden emergency.

         A. Standard of Review

         "The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In reviewing a legal sufficiency challenge, an appellate court "view[s] the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Id. at 807. Evidence is legally insufficient when the record discloses

(a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of a vital fact.

Id. at 810 (quoting Robert W. Calvert, "No Evidence" & "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)); accord Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 736 (Tex. 2018). An appellate court considers all evidence, regardless of the offering party, "in the light most favorable to the party in whose favor the verdict has been rendered." Hill, 544 S.W.3d at 736 (quoting Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

         In a factual sufficiency review, an appellate court considers all the evidence supporting and contradicting the jury's finding. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 615 (Tex. 2016). Where the proponent of the evidence receives an adverse ruling, we set aside the jury's verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); accord Crosstex N. Tex. Pipeline, 505 S.W.3d at 615; Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). As long as the evidence at trial "would enable reasonable and fair-minded people to differ in their conclusions," we will not substitute our judgment for that of the fact finder. City of Keller, 168 S.W.3d at 822.

         Whether reviewing the legal or factual sufficiency of the evidence, the jurors are the sole judges of the credibility of the witnesses and the weight to be given their testimony and may choose to believe some witnesses and not others. Id. at 819.

         B. "Course and Scope" Analysis

         The Sterling Appellants argue Appellees' claims for common law remedies are barred because their injuries were sustained in the course and scope of their employment.

         1. Texas Workers' Compensation Act

         The Texas Workers' Compensation Act ("Act") provides:

Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.

Tex. Lab. Code Ann. § 408.001(a). "Historically, this exclusive remedy provision has provided a legislatively-crafted compromise that relieves employees of the burden of proving negligence to obtain relief for workplace injuries but, in return, they forego any remedies except as may be provided in the Act." Aguirre v. Vasquez, 225 S.W.3d 744, 750-51 (Tex. App.-Houston [14th Dist.] 2007, no pet.). "Workers' compensation insurance compensates employees who sustain compensable injuries." Am. Cas. Co. of Reading, Pa. v. Bushman, 480 S.W.3d 667, 673 (Tex. App.-San Antonio 2015, no pet.) (citing Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 519 (Tex. 2007)). "'Compensable injury' means an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle." Tex. Lab. Code Ann. § 401.011(10).

         The Act defines "course and scope of employment" as:

an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations.

Id. at § 401.011(12); accord SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 642 (Tex. 2015); Bushman, 480 S.W.3d at 673. If, however, the conduct falls within an exception to one of these elements, the employee's actions are not in the course and scope of his employment. Because commuting to and from work are the type of risks shared by the traveling public, and do not generally arise from a specific trade or profession, an injury sustained while commuting is generally not a compensable injury arising out of an individual's course and scope of employment. See SeaBright Ins. Co., 465 S.W.3d at 642.

         To prevail on a course and scope claim, a party must show the injury "(1) relate[d] to or originate[d] in, and (2) occur[ed] in the furtherance of, the employer's business." Id. at 642 (emphasis added) (quoting Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 242 (Tex. 2010)). Courts generally employ a fact-intensive analysis and "[n]o singular fact is necessarily dispositive." Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 730 (Tex. App.-Austin 2011, pet. denied); see also SeaBright Ins., 465 S.W.3d at 642-43.

         We turn first to whether the Valdivias' injuries originated in Texas Sterling's business.

         2. Origination

         All employees must necessarily travel to and from work; such travel "makes employment possible." Leordeanu, 330 S.W.3d at 242; accord Seabright Ins. Co., 465 S.W.3d at 642. "[B]ut such travel cannot ordinarily be said to originate in the business, . . . because '[t]he risks to which employees are exposed while traveling to and from work are shared by society as a whole and do not arise as a result of the work of employers.'" Leordeanu, 330 S.W.3d at 242 (third alteration in original) (quoting Evans v. Ill. Emp'rs Ins. of Wausau, 790 S.W.2d 302, 305 (Tex. 1990)); accord Seabright Ins. Co., 465 S.W.3d at 642. "[A] distinction can be made if 'the relationship between the travel and the employment is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer.'" Seabright Ins. Co., 465 S.W.3d at 642 (quoting Shelton v. Standard Ins. Co., 389 S.W.2d 290, 292 (Tex. 1965)). The examination focuses on whether the travel resulted from an express or implied condition of the employee's employment. See id. (citing Meyer v. W. Fire Ins. Co., 425 S.W.2d 628, 629 (Tex. 1968)). An appellate court undertakes a fact-based analysis considering "the nature of the employee's job, the circumstances of the travel, and any other relevant facts." See id. at 643.

         3. Arguments of the Parties

         The Sterling Appellants raise several arguments regarding origination. First, Texas Sterling argues their company policy only pays for hotel accommodations beginning on Monday evening, but requires the Valdivias to be on the jobsite at 7:00 a.m., and the distance from San Antonio mandated the Valdivias travel to Austin early Monday morning. Second, under the continuous-coverage doctrine, the Valdivias were employees assigned on an atypical, out-of-town business trip where the company furnished food, provided accommodations, and required travel on roads with which the driver may not be familiar. Third, the Valdivias were on a special mission for their employer.

         Appellees counter the facts establish this was simply a case of two individual employees traveling to work to begin their workday.

         4. Evidence Adduced at Trial

         The evidence surrounding the accident was uncontested.

         Texas Sterling selected Mora's crew to work on the MoPac project in Austin. Although the record does not reflect that Mora's crew previously worked on any projects outside of San Antonio, the crew was part of Texas Sterling's South Texas Division, covering the geographic territory between Waco and Laredo. Texas Sterling provided temporary housing in Austin and each member of the crew received a $35.00 per diem for food. The Valdivias were injured while traveling from San Antonio directly to the job site in Austin; neither was injured while traveling between temporary housing and the job site.

         Kevin Manning, Texas Sterling's National Risk Manager, testified the Valdivias were traveling in their own vehicle, and Texas Sterling did not pay a stipend for maintenance, service, insurance, or registration for the vehicle. Neither Valdivia was reimbursed for the time driving the vehicle, mileage, or gas. No designated route was required and the Valdivias were not required to follow Mora to the jobsite. Manning further verified the Valdivias were not required to wear steel-toed shoes, protective glasses, or other protective equipment while in the vehicle. The Valdivias were hourly employees; their time started at the jobsite at 7:00 a.m.; the accident occurred at 5:52 a.m., near San Marcos, Texas.

         The Texas Sterling and SCC team of officers and supervisors at the scene determined the Valdivias were not in the course and scope of their employment. González, Texas Sterling's Director of Safety, testified he was the individual responsible for notifying OSHA, within eight hours of an accident, regarding any fatalities or on-the-job employee injuries. At trial, González testified he and his team of supervisors concluded the accident was not work-related because neither Martin Sr. nor Martin Jr. was in the course and scope of his employment. González reiterated that he did not believe it at the time of the accident and he did not believe it at the time of trial. González testified he did not report the incident to OSHA, did not authorize Kakasenko to report the incident to OSHA, and he agreed with Hartford's determination denying workers' compensation benefits.

         At trial, the Sterling Appellants relied on Manning's testimony, "in my opinion, [the Valdivias] were furthering our business by getting that box out of the roadway for us." Manning conceded that "[retrieving] company property from the middle of the highway" was not an assigned job and the Valdivias were traveling from San Antonio to Austin in route to a jobsite at the time of the accident.

         5. Analysis

         The Sterling Appellants argue Texas Sterling's South Texas division was based in San Antonio and worked on jobs in San Antonio. See Bushman, 480 S.W.3d at 675 (holding employee's travel to Elgin was in course and scope because it "was not merely a trip from home to a nearby job site to begin a regular workday, but rather was an atypical assignment in a different city"). The MoPac project was a Gulf Coast division project on which the San Antonio division was assisting, and crews were being sent from San Antonio. For Mora and his crew, traveling to Austin was an express condition of their employment. Based on the length of the commute, Texas Sterling provided hotel accommodations, a per diem for food, and various transportation options.

         The Texas Supreme Court has long recognized "that an employee can have more than one fixed place of employment and that fixed place of employment can change according to the nature of his work." Evans, 790 S.W.2d at 304; accord McVey, 339 S.W.3d at 733. We must, therefore, determine whether the Valdivias' travel was an atypical assignment or a special mission or whether the Valdivias were traveling to a "changed," "fixed placed of employment" as described in Evans and McVey. See Evans, 790 S.W.2d at 304; McVey, 339 S.W.3d at 733.

         The Valdivias were assigned to work on the MoPac job. The testimony supports the crew members could choose to ride in a company-owned vehicle driven by a company employee, with Mora in a company-owned pickup truck, or by any other means. The only employee on Mora's crew who drove a company-owned vehicle was Mora. See SeaBright Ins., 465 S.W.3d at 643; Bushman, 480 S.W.3d at 675. Texas Sterling paid the crew an hourly wage, the workweek ran from Monday morning at 7:00 a.m. through quitting time on either Friday or Saturday. The employees were paid a per diem and provided hotel accommodations. No employee, with the exception of Mora, was paid during their commute to work. The Valdivias were in their personal vehicle. Neither was reimbursed for mileage or other related expenses such as insurance or maintenance. Compare Evans, 790 S.W.2d at 304 (concluding not in course and scope of employment when railroad workers had to travel to a different location for a regular morning safety meeting) and Newsom v. Ballinger Indep. Sch. Dist., No. 03-07-00022-CV, 2007 WL 2066185, at *5 (Tex. App.-Austin July 17, 2007, no pet.) (mem. op.) (concluding not in course and scope of employment when school basketball coach driving to the school complex for Saturday practice "was not traveling on a 'special mission' for the school district, nor was she traveling at anyone's direction or control"); with SeaBright Ins. Co., 465 S.W.3d at 644 (concluding in course and scope of employment because employees were "more akin to those employees such as deliverymen, messengers, collectors, and others, who by the very nature of the work they have contracted to do are subjected to the perils and hazards of the streets."), Bushman, 480 S.W.3d at 675 (concluding in course and scope of employment when employee truck driver traveled from Seguin to Elgin for one week to train new employee as dispatcher; employer paid mileage, lodging, and travel expenses), Tex. Mut. Ins. Co. v. Jerrols, 385 S.W.3d 619, 631 (Tex. App.-Houston [14th Dist.] 2012, pet. dism'd) (concluding in course and scope of employment when employees were paid during the lunch hour, required to stay together during lunch, eat at same restaurant, ride in company vehicle, driven by company employee, at location away from jobsite), and McVey, 339 S.W.3d at 731 (concluding in course and scope of employment when required to attend leadership training meeting, ordered to travel to Houston, provided vehicle and paid for expenses, different from regular safety meetings, and mandated manner of travel).

         MoPac's jobsite being in Austin does not establish origination. Texas Sterling's directing the Valdivias to travel to an out of town jobsite does not establish origination. See Evans, 790 S.W.2d at 305. Their weekly employment began at 7:00 a.m. at the jobsite. Their travel was neither paid for nor reimbursed. Their route was not dictated. An employer's gratuitous offer of transportation does not establish origination. See SeaBright Ins. Co., 465 S.W.3d at 644. Unlike in Jerrols, the Valdivias were not on a paid lunch hour, traveling in a company vehicle, to a mandated location, or for a set amount of time. See Jerrols, 385 S.W.3d at 632. Although Martin Sr. elected to follow Mora, Texas Sterling did not set any parameters on the route or mode of transportation. Contra McVey, 339 S.W.3d at 732-33 (establishing special mission when circumstances of the employee's trip were largely dictated by the employer's rules regarding carpooling and minimizing travel expenses). Mora's crew was required to be on the jobsite, Monday morning at 7:00 a.m. How each employee arrived at the jobsite was at the sole discretion of the employee. When the accident occurred, neither Martin Sr. nor Martin Jr. were on Texas Sterling's timeclock. The record is replete with Texas Sterling and SCC representatives, the individuals responsible for making such determinations, concluding that neither Valdivia was in the course and scope of his employment at the time of the accident.

          Based on a review of the entire record, viewing the evidence in the light most favorable to the jury's verdict, we conclude the evidence is legally sufficient to support the jury's finding that neither Martin Sr. nor Martin Jr. was in the course and scope of their employment. See City of Keller, 168 S.W.3d at 827. Additionally, considering all of the evidence supporting and contradicting the jury's finding, we conclude the jury's findings are "not against the overwhelming weight of the evidence as to be clearly wrong and unjust," and the evidence is thus factually sufficient. See Crosstex N. Tex. Pipeline, 505 S.W.3d at 615.[2]

         We therefore overrule the Sterling Appellants' issue regarding course and scope of employment.

         C. Sudden Emergency

         In their third issue, the Sterling Appellants argue the evidence is legally and factually insufficient to support the jury's finding that Reyes was neither negligent nor partially responsible for the accident based on the defense of sudden emergency.

         1. Civil Practice and Remedies Code Chapter 33

         Under Chapter 33 of the Texas Civil Practice and Remedies Code, the trier of fact must determine the percentage of responsibility of certain persons for the harm at issue. See Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a). The trier of fact-in this case, the jury-is afforded wide latitude in determining the negligent parties' proportionate responsibility. See Jackson v. Williams Bros. Constr. Co., 364 S.W.3d 317, 325 (Tex. App.-Houston [1st Dist.] 2011, pet. denied). Even if the evidence could support a different percentage allocation, an appellate court may not substitute its judgment for that of the jury. See Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 478 (Tex. App.-Houston [14th Dist.] 1998, pet. denied).

         In Question 3(d) of the jury charge, the jury answered "No" to whether the negligence, if any, of Reyes proximately caused the accident. In Question 4, the jury apportioned responsibility for causing or contributing to causing the accident as follows:

Sterling Construction Company, Inc.

30%

Texas Sterling Construction Co.

65%

David Mora

5%

Norberto Ruelas Reyes

0%

         The Sterling Appellants argue the jury's finding that Reyes was not negligent and its assignment of 0% responsibility to Reyes is necessarily tied to the sudden emergency instruction in the jury charge.

         2. Sudden Emergency

         a. Elements of Sudden Emergency Defense

         A sudden emergency instruction advises the jury that it need not place blame on a party if the evidence shows conditions beyond the party's control or the conduct of a non-party caused the accident in question. Jordan v. Sava, Inc., 222 S.W.3d 840, 847 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (op. on reh'g) (citing Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 432 (Tex. 2005)). The instruction's purpose, in an appropriate case, is to advise the jurors, "that they do not have to place blame on a party to the suit if the evidence shows that conditions beyond the party's control caused the accident in question." Id. (quoting Dillard, 157 S.W.3d at 432). To warrant a sudden emergency instruction, the record must contain evidence of the following three elements:

(1) an emergency situation arose suddenly and unexpectedly;
(2) the emergency situation was not proximately caused by the negligent act or omission of the person whose conduct is under inquiry; and
(3) after an emergency situation arose that to a reasonable person would have required immediate action without time for deliberation, the person acted as a person of ordinary prudence would have acted under the same or similar circumstances.

Id. (citing Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995)). "[I]f there is any support in the evidence for a sudden emergency instruction, the instruction is properly given." Id. at 847; accord Dodson v. Muñoz, No. 04-17-00409-CV, 2018 WL 3747748, at *3 (Tex. App.-San Antonio Aug. 8, 2018, no pet.) (mem. op.).

         b. Evidence

         Appellees relied heavily on the testimony of Dr. Jahan Eftekhar, an accident reconstructionist, to prove Reyes was neither negligent nor responsible for causing or contributing to causing the accident. The investigation conducted by Dr. Eftekhar's team included physically inspecting the accident scene; photographing and taking measurements; inspecting the vehicles; reviewing discovery materials, i.e., ...


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.