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Affirmed and Opinion filed May 31, = 2007.

 

 

In The

 

Fourteenth=20 Court of Appeals

_______________

 

NO. 14-06-00484-CV

_______________

 

ANTONIO TORRES, Appellant

 

V.

 

COLIN TESSIER,=20 Appellee

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On Appeal from the 113th District=20 Court

 Harris County, = Texas

Trial Court Cause No.=20 04-54885

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O P I N I=20 O N

Appellant Antonio = Torres sued=20 appellee Colin Tessier, alleging that Tessier negligently caused = an auto=20 accident that injured Torres.  It is undisputed that Tessier = drove=20 his car into the back of Torres=3Ds truck while Torres = was=20 stopped at a traffic light.  It is also undisputed that = Tessier was=20 not watching the road at the time and took no action to avoid the=20 collision.  The jury found neither Tessier nor Torres=20 negligent.  In a single issue, Torres argues the trial court=20 committed reversible error by including a sudden-emergency = instruction in=20 the jury charge.  Because the jury reasonably could have = concluded=20 that Torres failed to carry his burden of proof, we affirm. =

I. =20 Factual and Procedural Background

At around 3:00 p.m. = on February=20 1, 2004, Antonio Torres was driving his pick-up truck in the = middle lane=20 of Main Street in Houston, Texas next to Reliant Stadium, where = the Super=20 Bowl was being held.  Torres was accompanied by his = five-year-old=20 son.  Approximately two car lengths behind him, = seventeen-year-old=20 Colin Tessier was driving his mother=3Ds car in the same = lane and=20 traveling at approximately fifteen or twenty m.p.h.  Tessier = was=20 accompanied by two friends, and his radio was on.  There were = many=20 pedestrians on the sidewalks, and Tessier had seen people walking = in and=20 on Main Street near the stadium that day. 

After both cars had = traveled=20 several blocks, Torres stopped at a red traffic light.  At = about the=20 same time, Tessier looked to his left for two and one-half or = three=20 seconds while he continued to drive down Main Street, making no = effort to=20 stop, decelerate, or swerve to avoid Torres=3Ds vehicle.  = Consequently,=20 the front of Tessier=3Ds car collided with = the back of=20 Torres=3Ds truck.  =

Torres later = testified that=20 although he felt pain right away, he did not complain of pain at = that time=20 because he was more concerned about his son.[1] =20 After the police concluded their investigation of the accident, = Torres=20 drove to his wife=3Ds place of employment = and drove=20 her home from work.  He testified that he told his wife that = his back=20 hurt, and took Tylenol before going to bed.  Torres further = testified=20 that his pain worsened over the next couple of days, and he = decided he=20 needed professional advice.  He therefore consulted an=20 attorney. 

According to = Torres=3Ds trial testimony, = his attorney=20 gave him a list of doctors, and Torres chose a chiropractor from = the=20 list.  He began treatment on February 5, 2004 for pain in his = neck=20 and his upper and lower back and shortly thereafter filed suit = against=20 Tessier for negligence.  Torres was treated approximately = twelve=20 times over the next four weeks.  No medicines were = prescribed, and no=20 x-rays, MRI=3Ds or CAT scans were=20 performed. 

During = cross-examination,=20 Torres conceded he testified in his deposition that his attorney = referred=20 him directly to the chiropractor who treated him for the injuries = he=20 allegedly sustained.  Torres also agreed he had received no = medical=20 bills from the chiropractor.  Moreover, he admitted he had = been in a=20 prior accident in which he had been driving the same truck, was = struck=20 from behind, and received treatment for his lower back.  As a = result=20 of that accident, Torres had filed a lawsuit using the same = attorney he=20 initially consulted in this case, but he was treated at a = different=20 facility by a different health care provider.  According to = Torres,=20 the lawsuit arising from the previous accident concluded about six = months=20 before this case went to trial.  Torres made no claim for = property=20 damage in this suit and no claim for future impairment or pain, = but=20 instead sought $2,685 for past medical expenses and damages for = past pain=20 and mental anguish. 

Although Tessier = agreed that if=20 he had been keeping a proper lookout he would have stopped his car = before=20 colliding with Torres, the parties hotly disputed = Tessier=3Ds reason for driving = through=20 downtown Houston without attending to the road.  During = trial,=20 Tessier testified that A[o]ut of the corner = of my eye I=20 glanced over because of fear of hitting someone, = something.@  = Torres=3Ds attorney produced = evidence=20 that Tessier had previously testified, AI saw somebody that = caught my=20 interest on the side.@  At trial, = Tessier=20 explained that the person to whom he referred in his deposition = was=20 Aa pedestrian on the = road. =20 Or in, you know, in that area.@  He stated that = AI glanced over to the = left and=20 accidentally looked at someone, fear of hitting a = pedestrian@ and when asked what = had caught=20 his attention, Tessier stated, AIt was a movement, = which, you=20 know, was out of a group of people. . . . I = saw a=20 movement amongst everything on the road.  People and=20 whatnot.@

Based on this = testimony,=20 Tessier requested the following sudden-emergency jury instruction: =

If a person is = confronted by an=20 Aemergency@ arising suddenly and = unexpectedly, which was not proximately caused by any negligence = on his=20 part and which, to a reasonable person, requires immediate action = without=20 time for deliberation, his conduct in such an emergency is not = negligence=20 or failure to use ordinary care if, after such emergency arises, = he acts=20 as a person of ordinary prudence would have acted under the same = or=20 similar circumstances.

Torres objected to = the=20 instruction on the grounds that there was no evidence supporting = its=20 submission.  He argued that because Tessier admitted there = were many=20 pedestrians and he had seen them around and on Main Street before = the=20 accident, the events he described were not unexpected.  = Torres also=20 produced Tessier=3Ds response to a = request for=20 admissions in which Tessier admitted that A[a]n emergency did = not=20 contribute to the cause of the collision made the basis of this=20 lawsuit.@ 

Over = Torres=3Ds objections, the = trial court=20 included the sudden-emergency instruction in the following jury = question:=20 ADid the negligence, = if any, of=20 those named below proximately cause the occurrence in=20 question?@  The names of = Torres and=20 Tessier followed the question, and the jury wrote Ano@ next to each = name.  In=20 addition to the sudden-emergency instruction, the jury received=20 instructions defining Anegligence,@ Aordinary = care,@ and Aproximate = cause@; however, the jury = charge did=20 not contain an instruction identifying or defining Athe occurrence in=20 question.@  The trial = court rendered=20 judgment in accordance with the verdict, and this appeal=20 ensued.

II. =20 Issue Presented

In a single issue, = Torres=20 contends there is no evidence to support the submission of a=20 sudden-emergency jury instruction, and the trial court=3Ds error in including = the=20 instruction probably caused the rendition of an improper = judgment.[2]

III. =20 Standard of Review

The trial court must = submit=20 jury questions, instructions, and definitions that are raised by = the=20 written pleadings and the evidence.  Tex. R. Civ. P. = 278.  We=20 review a challenged jury charge for an abuse of discretion.  = Tex.=20 Dep=3Dt of Human Servs. v.=20 E.B., 802=20 S.W.2d 647, 649 (Tex. 1990).  To determine whether the = incorrect=20 submission of an inferential rebuttal instruction requires = reversal, we=20 examine the entire record to determine whether the instruction=20 A>was reasonably = calculated to=20 and probably did cause the rendition of an improper = judgment.=3D@  Bed, Bath = &=20 Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006) = (quoting=20 Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995)); see = also Tex. R. App. P. = 44.1(a). 

IV. =20 Analysis

To prevail on a = negligence=20 claim, the plaintiff must not only establish that the defendant = breached a=20 duty, but must also prove that the plaintiff sustained damages = proximately=20 caused by that breach.  D.=20 Houston, Inc. v. Love, 92=20 S.W.3d 450, 454 (Tex. 2002).  Here, the = evidence=20 Torres offered to establish the elements of proximate cause and = damage=20 consists of his subjective complaints of pain and medical records=20 documenting those complaints.  The jury was free to = disbelieve this=20 evidence; moreover, the jury=3Ds credibility = determination is=20 implicit in its verdict, and we presume that jurors decided all = questions=20 of credibility and conflicts in the evidence in favor of the = verdict if=20 reasonable people could do so.  See City of Keller v. = Wilson,=20 168 S.W.3d 802, 819 (Tex. 2005). 

Assuming without = deciding that=20 the sudden-emergency instruction should not have been submitted, = we=20 disagree with Torres=3Ds contention that the = instruction probably caused the jury to render an improper = verdict. =20 First, there is no clear indication that the jury relied on this=20 instruction.  See Urista, 211 S.W.3d at 759 = (A[W]hen considering = the entire=20 record in this case, which provides no clear indication that the=20 instruction probably caused the rendition of an improper verdict, = we must=20 conclude that the trial court=3Ds submission of the = instruction=20 was harmless.@).  Moreover, = reviewing=20 the evidence under the applicable standard of review, we conclude = that=20 another explanation is both more likely and more reasonable: the=20 jury=3Ds failure to find = negligence=20 could reasonably be based on its failure to find causation, = damages, or=20 both.[3] =20 Specifically, the jury could reach any of these conclusions based = on=20 evidence such as the following:

$           = ;       =20 Torres=20 refused an ambulance at the scene;

$           = ;       =20 he did not=20 complain of pain immediately;

$           = ;       =20 he did not=20 seek medical treatment until after he consulted a = lawyer;

$           = ;       =20 all of=20 Torres=3Ds medical care was = rendered by=20 a chiropractor recommended by his attorney;

$           = ;       =20 Torres had=20 previously been in a rear-end collision in the same vehicle, = claimed back=20 injuries, and sued the tortfeasor using the same = attorney;

$           = ;       =20 although=20 the prior case concluded only six months before this accident, = Torres=20 selected a different health care provider for this = accident;

$           = ;       =20 the medical=20 records indicate that Torres did not disclose his prior injury or=20 treatment to the chiropractor treating him for this = accident;

$           = ;       =20 no x-rays,=20 MRI=3Ds, or other scans = were ordered=20 or performed;

$           = ;       =20 no=20 prescription or Aover-the-counter@ medication was=20 prescribed;

$           = ;       =20 the medical=20 claim forms contain the affirmative statement that his injury is = not=20 related to an auto accident;[4]

$           = ;       =20 the medical=20 claim forms also date the onset of his symptoms to January 2004;=20 and

$           = ;       =20 Torres=3Ds payroll records = show that, in=20 his occupation as a carpet and flooring installer, he earned more = money=20 during the month of his injury and treatment than in eight other = months=20 that year.

Considering all of = the=20 evidence, we conclude a reasonable jury could have found that = Torres=20 failed to prove all of the elements of his negligence claim; = therefore,=20 the jury could have answered the broad-form liability question in = the=20 negative without regard to the sudden-emergency = instruction.

In reaching this = conclusion, we=20 apply the same reasoning used in the similar case of Bed, Bath = &=20 Beyond, Inc. v. Urista.  211 S.W.3d at 757B59.  In = Urista, the=20 plaintiff claimed that a store employee using a broom to retrieve=20 merchandise caused plastic trash cans to fall from a high shelf in = an=20 adjacent aisle and strike the plaintiff on the head, resulting in = severe=20 back injuries.  Id. at 755.  There, the Texas = Supreme=20 Court concluded that the improper inclusion of an inferential = rebuttal=20 instruction in an otherwise proper broad-form liability question = was not=20 reversible error because it was reasonable to conclude that the = plaintiff=20 failed to carry his burden of proof.  Id. at = 757.  The=20 Court explained that the defendant=3Ds primary defense = consisted of=20 attacking the plaintiff=3Ds credibility.  = Id.=20 at 757.  The Court then held that because Athe = defendant=3Ds cross-examination = provides a=20 sufficient basis for discrediting the plaintiff=3Ds claims, supporting = the=20 jury=3Ds verdict in its = favor, we=20 cannot conclude that the instruction probably caused the jury to = render an=20 improper verdict.@  Id. at=20 758B59. =20

The same reasoning = applies=20 here, and compels the same result.  In Urista, as = here, the=20 plaintiff continued his errands after the alleged injury.  = See=20 id. at 755.  There, as here, the plaintiff had a = preexisting back=20 injury and did not complain of pain at the scene.  See=20 id.  In Urista, medical tests taken after the = incident did=20 not reveal any changes to the plaintiff=3Ds back, id. at = 758;=20 here, the treating chiropractor did not even order objective tests = to=20 detect an injury.  Evidence was admitted in Urista = that the=20 plaintiff=3Ds doctor altered = medical=20 records at his attorney=3Ds request to indicate = that the=20 injuries were caused by the accident.  Id.  Here, = the=20 evidence of non-liability is arguably stronger: although the=20 chiropractor=3Ds final report states = that=20 Torres was Ainjured by motor = vehicle=20 accident,@ all of the medical = claim forms=20 associated with Torres=3Ds treatment contain = affirmative=20 statements that Torres=3Ds injury was not = related to an=20 auto accident and date his symptoms to January 2004, before the = accident.=20

Considering all of = the evidence=20 under the applicable standard of review, we cannot say that the = inclusion=20 of a sudden-emergency instruction probably caused an improper=20 verdict.  Accordingly, we overrule Torres=3Ds sole issue on=20 appeal.

V. =20 Conclusion

We hold that any = error in=20 submitting a sudden-emergency instruction was harmless; and = therefore=20 affirm the judgment of the trial court.

 

 

 

 

/s/        Eva=20 M. Guzman

Justice

 

Judgment rendered and = Opinion=20 filed May 31, 2007.

Panel consists of = Chief Justice=20 Hedges and Justices Hudson and Guzman.


[1]  There are no allegations that=20 Torres=3Ds son was injured in the=20 accident.

[2]  Torres originally asserted that = the=20 inclusion of this instruction also prevented him from presenting = his case=20 on appeal.  This argument was based on an opinion that has = since been=20 reversed.  See Urista v. Bed, Bath & Beyond, Inc., = 132=20 S.W.3d 517, 521 (Tex. App.CHouston [1st Dist.] 2004),=20 rev=3Dd, 211=20 S.W.3d 753 (Tex. 2006).  The Texas Supreme Court has now = clarified=20 that the improper submission of an inferential rebuttal = instruction in a=20 broad-form negligence question requires reversal only if the error = is=20 reasonably calculated to and probably did cause an improper=20 judgment.  Bed, Bath & Beyond, Inc. v. Urista, 211 = S.W.3d=20 753, 757 (Tex. 2006) (quoting Reinhart v. Young, 906 S.W.2d = 471,=20 473 (Tex. 1995)).  In his reply brief, Torres acknowledges = this=20 holding and offers no basis for distinguishing = Urista.  We=20 therefore treat this argument as abandoned or waived and do not = address it=20 further. 

[3]  Torres claimed bodily injury = only; there=20 was no claim for property damage.

[4]  Each claim form contains the = question,=20 AIs the patient=3Ds condition related to: a. = Employment? =20 b. Auto accident?  c. Other accident?@  After each option are two boxes = labeled=20 AYes@ and ANo.@  There is also a blank that reads, = APlace (State) ____@ next to the option, AAuto accident.@  In each of the claim forms, the=20 APlace@ is identified as ATX,@ but the option Aauto accident@ is checked Ano.@  Instead, the option Aother accident@ is checked Ayes.@=20

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