Court of Appeals of Texas, Fourth District, San Antonio
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
Martin VALDIVIA, Sr. and Maria Cervantes Valdivia, both Individually and as Sole Heirs of the Estate of Martin Valdivia, Jr., Deceased, Appellees
the 37th Judicial District Court, Bexar County, Texas Trial
Court No. 2015CI09734 Honorable Michael E. Mery, Judge
Sitting: Sandee Bryan Marion, Chief Justice, Patricia O.
Alvarez, Justice Liza A. Rodriguez, Justice
PATRICIA O. ALVAREZ, JUSTICE
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").
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.
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
and Procedural Background
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. Therefore, we limit our summary of the
evidence to that necessary to the disposition of the issues
Sr. and Martin Jr. (the Valdivias) worked for Texas Sterling
installing bridges, sidewalks, and driveways. David Mora was
the Valdivias' crew foreman.
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.
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.
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.
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
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.
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
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."
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
The Charge of the Court
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.
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.
jury awarded $9, 543, 000 in actual damages and $2, 800, 000
in exemplary damages. This appeal ensued.
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
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
and Factual Sufficiency Claims
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.
Standard of Review
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
(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)).
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.
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.
"Course and Scope" Analysis
Sterling Appellants argue Appellees' claims for common
law remedies are barred because their injuries were sustained
in the course and scope of their employment.
Texas Workers' Compensation Act
Texas Workers' Compensation Act ("Act")
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
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).
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
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
first to whether the Valdivias' injuries originated in
Texas Sterling's business.
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.
Arguments of the Parties
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
counter the facts establish this was simply a case of two
individual employees traveling to work to begin their
Evidence Adduced at Trial
evidence surrounding the accident was uncontested.
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
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 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.
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.
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
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.
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).
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
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.
therefore overrule the Sterling Appellants' issue
regarding course and scope of employment.
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.
Civil Practice and Remedies Code Chapter 33
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).
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.
Texas Sterling Construction Co.
Norberto Ruelas Reyes
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.
Elements of Sudden Emergency Defense
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
(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
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.).
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.,