IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0923

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Dr. Richard Jackson, = Petitioner

David and Carolyn = Axelrad,=20 Respondents

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On Petition for Review from = the

Court of Appeals for the Fourteenth = District of=20 Texas

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Argued February=20 16, 2006

Justice Brister delivered the opinion of the = Court.

In = this=20 unusual medical malpractice case, both physician and patient were = doctors. Each=20 claimed the other was negligent, and a jury agreed both were. As the = jury=20 assessed slightly more fault to the plaintiff (51 percent) than the = defendant=20 (49 percent), the trial court entered a take-nothing judgment.[1]

A = divided=20 court of appeals reversed and remanded for a new trial, disregarding the = finding=20 of the plaintiff=92s negligence because laymen generally have no duty to = volunteer=20 information during medical treatment.[2] But the plaintiff = here was=20 not a layman, and jurors judging his actions could consider his = expertise,=20 especially as he emphasized it throughout the trial. Because there was = some=20 evidence the plaintiff doctor failed to report a critical symptom when = he should=20 have, we reverse the court of appeals=92 judgment and reinstate the = jury=92s=20 verdict.

I. Background

This suit was=20 brought by Dr. David Axelrad, a psychiatrist, against Dr. Richard = Jackson, an=20 internist. Like the court of appeals, we will refer only to the latter = by his=20 title to avoid confusion.

After months=20 of intermittent abdominal cramps and diarrhea, Axelrad sought treatment = from Dr.=20 Jackson after an abrupt onset of acute pain. Dr. Jackson prescribed a = laxative=20 and enema for fecal impaction. As it turned out, Axelrad was suffering = from=20 diverticulitis. It is undisputed an enema should not be prescribed in = such=20 circumstances due to the risk of a perforated colon.

Returning=20 home, Axelrad followed his doctor=92s orders and immediately felt severe = abdominal=20 pain with nausea, rigors, and chills. His wife took him to an emergency = room,=20 and he was hospitalized for further testing. Based on those tests, = another=20 doctor operated two days later for what was thought to be appendicitis, = but=20 turned out to be diverticulitis and a perforated colon. A portion of the = colon=20 was removed and a temporary colostomy constructed. Axelrad=92s = subsequent course=20 of treatment included surgery to reconnect the colon, complicated by a = severe=20 drug reaction.

While the=20 foregoing is undisputed, the parties disagree about much else, including = (1)=20 what medical history Axelrad reported, (2) when colon perforation = occurred, (3)=20 whether it was caused by Axelrad=92s disease or Dr. Jackson=92s = treatment, (4) why=20 Dr. Jackson did not come to the emergency room, and (5) whether = Axelrad=92s course=20 would have been different had Dr. Jackson=92s treatment been different. = But the=20 only conflict relevant to this appeal is the first. Although he alleged = several=20 grounds of contributory negligence at trial,[3] Dr. Jackson now = argues only=20 that the court of appeals erred in disregarding evidence supporting one = =97 that=20 Axelrad neglected to report where his abdominal pain began.

The = evidence=20 showed that particular diseases are associated with pain in particular = places in=20 the abdomen =97 gallbladder disease in the right upper quadrant, = appendicitis in=20 the right lower quadrant, and diverticulitis in the left lower quadrant. = While=20 conceding a patient with diverticulitis should not be treated with = enemas, Dr.=20 Jackson testified he did not suspect diverticulitis as it is normally = associated=20 with fever, constipation, and pain in the left lower quadrant, while = Axelrad=20 reported no fever, diarrhea, and pain throughout his abdomen.

A = patient=20 cannot, of course, be negligent because his symptoms fail to fit the = usual=20 pattern. But at trial, Axelrad insisted he told Dr. Jackson his pain = started in=20 the left lower quadrant. The latter flatly denied it, and argued Axelrad = made=20 this claim for the first time at trial. In none of the histories taken = by=20 medical personnel during his treatment did Axelrad ever report that his = pain=20 began in the left lower quadrant, nor did he say so at his pretrial = deposition.=20

It = was up to=20 the jurors to resolve this conflict in the testimony. But as the issues = were=20 submitted in broad form, how they decided it depends on what presumption = applies=20 when jurors issue a split verdict like they did here.

II. Presumptions Concerning a Split Verdict

As = we said in=20 City of Keller v. Wilson, when there are conflicts in testimony = we must=20 presume =93jurors decided all of them in favor of the verdict if = reasonable human=20 beings could do so.=94[4] But we also noted = that=20 evidence =93may support one part of a verdict but not another.=94[5] Here, one version = (that=20 Axelrad reported where his pain began) supports the verdict against Dr. = Jackson,=20 while the other version (that he did not) supports the verdict against = Axelrad.=20 Reasonable jurors could not have believed both =97 Axelrad either did = or=20 did not report where his pain began. But because either answer = would=20 support part of the verdict, which one must we presume jurors = believed?

The = answer=20 turns on the purpose of the presumption. It is not a prediction about = what=20 jurors actually did, as they often do not decide all conflicts one way. = Here,=20 for example, each party asserted several reasons why the other was = negligent, so=20 jurors did not have to agree on any one reason so long as they agreed on = the=20 result.[6]

Instead, the=20 presumption serves to protect jury verdicts from second-guessing on = appeal. As a=20 result, it operates in favor of any jury finding a litigant asks an = appellate=20 court to set aside. Here, the court of appeals set aside only one jury = finding =97=20 that Axelrad was negligent. To ensure that the appellate court did not=20 substitute its own judgment for that of the jury, we must presume the = jury=20 decided all conflicts in favor of this finding.[7]

There are=20 some cases in which this general rule will not apply. Courts cannot = presume=20 findings in favor of one part of a verdict if doing so creates an = irreconcilable=20 conflict with another.[8] But that is not = the case=20 here, as there was evidence Dr. Jackson was negligent even if Axelrad = failed to=20 report all his symptoms. Accordingly, we must presume jurors found = Axelrad did=20 not report where his abdominal pain began.

III. Do Patients Have a Duty to Cooperate in = Diagnosis?

&nbs= p;=20 We have never addressed whether a patient=92s failure to give an = accurate medical=20 history can constitute negligence. But in Elbaor v. Smith, we = recognized=20 =93a duty of cooperation which patients owe treating physicians who = assume the=20 duty to care for them.=94[9] There, we held = the=20 plaintiff=92s refusal to take prescribed antibiotics should have been = submitted as=20 a question of contributory negligence, not just a failure to mitigate = damages.[10] While Elbaor=20 concerned cooperation with treatment rather than diagnosis, nothing = in the=20 opinion suggests a patient=92s duty to cooperate applies to only one = aspect of=20 medical care.

A = medical=20 history, like many aspects of health care, is a cooperative venture = requiring=20 active participation by both doctor and patient. A patient=92s = statements to a=20 doctor are critical, so critical they are protected by a privilege and = made an=20 exception to the hearsay rule.[11] In most cases, = medical=20 care will never even occur unless patients present themselves for = treatment and=20 say what hurts. Patients have no duty to diagnose themselves (as doctors = are=20 licensed and paid to do that), but neither can they demand treatment for = a=20 condition they refuse to disclose. All the trial experts agreed patients = have a=20 duty to cooperate in diagnosis by giving an accurate medical = history.

Of = course,=20 there are cases in which a patient=92s condition is so obvious that = cooperation is=20 unnecessary, or so debilitating that it is impossible. But such cases do = not=20 suggest there should be no duty to cooperate; they suggest only that a = patient=92s=20 condition may discharge it. Like any reasonable-person standard, a = patient=92s=20 duty to cooperate requires only ordinary care under all the surrounding=20 circumstances.[12]

The = court of=20 appeals attempted to limit a patient=92s duty to cooperate in diagnosis = to two=20 instances: (1) responding truthfully to a physician=92s questions, and = (2)=20 volunteering information known to be both significant and unknown to the = doctor.[13] While we agree a = patient=92s=20 duty of cooperation could arise in those situations, we do not think it = can be=20 limited to them.

We = have=20 rejected similar efforts to compartmentalize negligence in rigid = categories. For=20 example, we have discarded categories like imminent-peril, = last-clear-chance,=20 and assumption-of-the-risk in favor of a general submission of = comparative=20 negligence.[14] In products = cases, we have=20 refused to limit all allegations of a plaintiff=92s negligence to = assumption of=20 the risk or mere failure to discover a defect, as other kinds of = negligence can=20 fall in between.[15]

Given the=20 infinite variety of patients, diseases, and circumstances surrounding = medical=20 care, an exhaustive list defining a patient=92s duty to cooperate cannot = be made.=20 The specificity of a doctor=92s questions and a patient=92s responses = will=20 necessarily depend on many factors =97 the language skills of each, = their=20 specialized knowledge, the length of their relationship, the urgency of = the=20 situation, the frequency of previous examinations, the patient=92s = current=20 condition, and so on.

Doctors are=20 paid for their expertise, so diagnosis will always be primarily their=20 responsibility. Thus, we agree with the court of appeals that in most = cases an=20 ordinary patient=92s failure to report the origin of pain will be no = evidence of=20 negligence. But we disagree with the effort to confine this duty to = precise=20 categories, and turn next to whether this was an ordinary patient.

IV. Do Physicians As Patients Have a Different = Duty?

The = primary=20 dispute between the parties in this appeal is whether Axelrad=92s = medical training=20 should be taken into account in evaluating the history he gave. Axelrad = did not=20 object to the admission of such evidence; indeed he offered most of it = himself.=20 But he argues it cannot be considered in evaluating legal sufficiency = because a=20 physician as patient =93should not be required to exercise any = heightened degree=20 of care above that of an ordinary person.=94

This argument=20 represents a misunderstanding of the nature of the=20 physician-of-ordinary-prudence standard. It is not a higher standard of = care=20 (like strict liability, or the high-degree-of-care standard for common=20 carriers[16]) or a lower = standard of=20 care (like gross negligence, or the willful-and-wanton standard for = emergency=20 care[17]). It is instead = the=20 ordinary-care standard, modified to instruct jurors that =93under the = same or=20 similar circumstances=94 means they must consider a physician=92s = training. We said=20 so in Hood v. Phillips, our seminal case defining a physician=92s = standard=20 of care:

The burden=20 of proof is on the patient‑plaintiff to establish that the = physician‑defendant=20 has undertaken a mode or form of treatment which a reasonable and = prudent member=20 of the medical profession would not have undertaken under the same or = similar=20 circumstances. The circumstances to be considered include, but are = not=20 limited to, the expertise of and means available to the = physician‑defendant, the=20 health of the patient, and the state of medical knowledge. Unless = the mode=20 or form of treatment is a matter of common knowledge or is within the = experience=20 of the layman, expert testimony will be required to meet this burden of = proof .=20 . . . Although the trial court refused to submit an issue regarding = ordinary=20 negligence, [the] evidence would raise a question of fact for the = jury on=20 the issue of ordinary negligence and such issue should have been=20 submitted.[18]

The = same=20 point is made by the Restatement. Both the First and Second Restatements = of=20 Torts summarize the traditional reasonable-person standard as one taking = into=20 account both the knowledge and skills of an ordinary person and = =93such=20 superior attention, perception, memory, knowledge, intelligence, and = judgment as=20 the actor himself has.=94[19] Both = Restatements include=20 an illustration specifically applying this standard to physicians, even = when=20 they are not acting in that capacity:

A is a=20 physician. His child exhibits symptoms which A, because of his previous = training=20 and experience, should recognize as indicating that the child has = scarlet fever.=20 A fails to recognize them, and permits his child to go to school, where = the=20 child communicates the disease to B, another pupil. A is negligent in = not=20 recognizing the risk, although if he were a layman he might not be = negligent.[20]

This=20 principle =97 that ordinary prudence under the same or similar = circumstances=20 includes a party=92s expertise =97 is not limited to physicians. As = Prosser and=20 Keeton note, it applies to many other skills:

[I]f a=20 person in fact has knowledge, skill, or even intelligence superior to = that of=20 the ordinary person, the law will demand of that person conduct = consistent with=20 it. Experienced milk haulers, hockey coaches, expert skiers, = construction=20 inspectors, and doctors must all use care which is reasonable in light = of their=20 superior learning and experience, and any special skills, knowledge or = training=20 they may personally have over and above what is normally possessed by = persons in=20 the field.[21]

In = the=20 =93expert skiers=94 case Prosser and Keeton mention, the federal Tenth = Circuit noted=20 that an expert-of-ordinary-prudence is merely an application of the=20 reasonable-person standard, not a different one:

It would=20 appear then that in order to satisfy the standard of care, a person = having=20 special knowledge must exercise a quantum of care which is commensurate = with the=20 circumstances, one of which is his or her special skill and training. An = instruction of this kind is not easy to expound in a charge to a jury = for the=20 reason that it is capable of creating the impression that a double = standard of=20 care exists. In truth there is but one standard, that of reasonable = prudence=20 under the circumstances. The decision must be made on the basis of the=20 surrounding circumstances, including the fact that the person involved = is an=20 expert.[22]

We = have never=20 applied the physician-of-ordinary-prudence standard to a plaintiff=92s = negligence,=20 but then we have never addressed a medical malpractice claim by a = physician. Nor=20 does it appear that any case addressing a patient=92s failure to give an = accurate=20 medical history has ever done so.[23] But generally = =93[t]he rules=20 which determine the contributory negligence of a plaintiff are . . . the = same as=20 those which determine the negligence of the defendant.=94[24] As jurors = analyzing the=20 =93same or similar circumstances=94 must consider a physician=92s = special knowledge=20 when a doctor is the defendant, it is hard to see why they should not do = so when=20 a doctor is the plaintiff.

Axelrad makes=20 the same mistake in arguing that =93the charge held Jackson to the = standard of a=20 prudent physician, but Axelrad to the standard of a prudent person.=94 = The jury=20 questions included a physician-of-ordinary-prudence charge as to Dr. = Jackson and=20 a person-of-ordinary-prudence charge as to Axelrad. As there was no = objection,=20 legal sufficiency must be examined by this charge.[25] But for the = reasons=20 already discussed, a charge asking whether Axelrad exhibited ordinary = prudence=20 under the same or similar circumstances at least allowed jurors = to=20 consider his training, even if it did not instruct them to do so. In its = expert-skier case, the Tenth Circuit held a person-of-ordinary-prudence = charge=20 was not prejudicial on just this basis.[26] While a charge = that=20 prohibited jurors from considering Axelrad=92s special knowledge might = require a=20 different result,[27] this charge did = not.

Here, jurors=20 could hardly have overlooked Axelrad=92s special knowledge, as he = emphasized it=20 throughout the trial. Axelrad designated himself as a testifying expert, = and=20 gave several expert opinions to the jury. In the first minute he was on = the=20 stand, he opined that Dr. Jackson was =93a bad doctor,=94 explaining = that =93I felt=20 compelled to bring this lawsuit against him . . . because he=92s not a = good=20 doctor.=94 Axelrad emphasized to the jury that he had passed judgment on = other=20 doctors as a member of state medical boards in both California and = Texas. He=20 estimated giving more than 150 depositions as an expert in medical = negligence=20 cases. While his practice was limited to psychiatry, he denied any = unfamiliarity=20 with abdominal complaints, arguing that during his four years as an = emergency=20 room physician he had =93a lot of opportunities to examine abdomens.=94 = Having=20 presented himself to jurors as a person with superior knowledge, he = cannot=20 complain that jurors might have taken him at his word.

Moreover,=20 Axelrad insisted he had reported that his pain originated in the left = lower=20 quadrant, which he acknowledged was a classic sign of diverticulitis. As = defense=20 counsel put it with some embellishment in his opening argument, =93our=20 grandmothers could all diagnose diverticulitis if you came in and said, = =91I have=20 left lower quadrant pain.=92=94 Taking this position strengthened = Axelrad=92s case=20 against Dr. Jackson if jurors credited it. But if they did not, it = strengthened=20 an inference that he failed to exercise ordinary care when he failed to = mention=20 it.

The = court of=20 appeals pointed out that Axelrad never admitted knowing the significance = of=20 where his abdominal pain started.[28] But of course = litigants=20 rarely admit negligence on their own part. The question here is whether = there=20 was evidence from which reasonable jurors could infer Axelrad either = knew or=20 should have known he needed to report this information.[29]

The = court of=20 appeals also found it implausible that a sick patient would fail to = report a=20 significant symptom,[30] but it is no = more=20 implausible than that a doctor would fail to avoid harming a patient and = getting=20 sued. The defense presented evidence that haste and impatience sometimes = caused=20 Axelrad to downplay his symptoms, fail to follow doctors=92 orders, and = testify to=20 checkups that in fact never occurred. Whether plaintiffs or defendants, = people=20 sometimes make mistakes, and it is generally up to the jury to decide = who did.[31]

Again, there=20 will be cases in which a patient is a doctor with no special knowledge = of a=20 particular disease, or so sick as to be unable to use it. But whether = either was=20 the case here was hotly disputed. While Dr. Jackson asked only general = questions=20 about Axelrad=92s condition (=93Tell me exactly what is going on=94), we = cannot say he=20 was required to ask a fellow physician the same questions he would ask = everyone=20 else. Similarly, while most patients might not be expected to volunteer = where=20 the pain began, we cannot say Axelrad was not required to say something = more. As=20 there was evidence from which jurors could have found both doctor and = patient=20 were at fault in diagnosing this situation, we hold the court of appeals = erred=20 in disregarding one part of the jury=92s verdict.

V. Other Points and Conclusion

Axelrad=20 asserts two cross-points. In the first, he argues there was no evidence = any=20 failure to report where his pain began proximately caused his injuries. = But=20 Axelrad=92s own expert testified =93the only reasonable explanation=94 = for the colon=20 perforation and subsequent events was =93the administration of that = enema.=94 Dr.=20 Jackson testified had he known Axelrad=92s pain began in the left lower = quadrant,=20 he would have suspected diverticulitis and not prescribed an enema. = Accordingly,=20 jurors could have found a causal connection.

Second,=20 Axelrad argues the trial court erred by admitting unreliable testimony = by Dr.=20 Mary Schwartz, a board certified pathologist who holds an endowed chair = at=20 Baylor Medical School, that tissue samples from Axelrad=92s first = surgery showed=20 his bowel perforation had occurred before he ever called Dr. Jackson. = While Dr.=20 Schwartz admitted she was unfamiliar with the disease process of = diverticulitis,=20 we agree with the court of appeals=92 detailed analysis that her = opinions were=20 reliable,[32] and thus do not = repeat=20 them.

Accordingly,=20 for the reasons stated above we reverse the court of appeals=92 judgment = and=20 remand to that court for factual sufficiency review.

________________________________

Scott Brister,=20 Justice

OPINION DELIVERED: = April 20,=20 2007

^{^[1]} See Tex.=20 Civ. Prac. & Rem. Code =A7 33.001 (=93In an action to which = this chapter=20 applies, a claimant may not recover damages if his percentage of = responsibility=20 is greater than 50 percent.=94).

^{^[2]} 142 S.W.3d 418, 421 (Tex. App.=96Houston = [14th Dist.]=20 2004).

^{^[3]} See id. at 427-28.

^{^[4]} 168 S.W.3d 802, 819 (Tex. = 2005).

^{^[5]} Id. at 827.

^{^[6]} See Dillard v. Texas Elec. = Co‑op., 157 S.W.3d=20 429, 434 (Tex. 2005) (=93Under broad‑form submission rules, jurors = need not agree=20 on every detail of what occurred so long as they agree on the legally = relevant=20 result.=94).

^{^[7]} See Gen. Motors Corp. v. Sanchez, 997 = S.W.2d=20 584, 595 (Tex. 1999) (holding trial court erred in disregarding jury=92s = contributory negligence finding as some evidence supported it); Lynch = v.=20 Ricketts, 314 S.W.2d 273, 276-77 (Tex. 1958) = (same).

^{^[8]} See Ins. Co. of N. Am. v. Morris, 981 = S.W.2d=20 667, 677 (Tex. 1998).

^{^[9]} 845 S.W.2d 240, 245 (Tex. = 1992).

^{^[10]} Id.

^{^[11]} See Tex.=20 R. Evid. 509, 803(4).

^{^[12]} See, e.g., State Bar of Tex., Tex. Pattern = Jury=20 Charges=96General Negligence PJC 3.3 ( 2006) (providing conduct = in=20 emergency is not negligent if it meets standard of ordinary prudence = under same=20 or similar circumstances).

^{^[13]} 142 S.W.3d 418, 424-25 (Tex. App.=96Houston = [14th Dist.]=20 2004). We reject Dr. Jackson=92s argument that Axelrad waived any = no-duty=20 argument, as Axelrad=92s post-trial objection preserved his no-evidence = complaint.=20 See Edward D. Jones & Co. v. Fletcher, 975 S.W.2d 539, = 543=20 (Tex. 1998); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d = 218,=20 220-21 (Tex. 1992).

^{^[14]} See French v. Grigsby, 571 S.W.2d 867, = 867 (Tex.=20 1978) (disapproving of last-clear-chance issues in favor of comparative=20 negligence submission); Davila v. Sanders, 557 S.W.2d 770, 771 = (Tex.=20 1977) (same regarding imminent-peril); Farley v. M M Cattle Co., = 529=20 S.W.2d 751, 758 (Tex. 1975) (same regarding=20 assumption-of-the-risk).

^{^[15]} See Gen. Motors Corp. v. Sanchez, 997 = S.W.2d=20 584, 594 (Tex. 1999) (disapproving Keen v. Ashot Ashkelon, Ltd., = 748=20 S.W.2d 91 (Tex. 1988)).

^{^[16]} See Speed Boat Leasing, Inc. v. Elmer, = 124=20 S.W.3d 210, 212 (Tex. 2003) (holding common carriers to higher degree of = care=20 exercised by very cautious and prudent persons); see also State Bar of Tex., Tex. Pattern = Jury=20 Charges=96General Negligence PJC 2.2 (2006).

^{^[17]} See Tex.=20 Civ. Prac. & Rem. Code =A7 74.153.

^{^[18]} 554 S.W.2d 160, 165-66 (Tex. 1977) (emphasis=20 added).

^{^[19]} See Restatement (Second) of Torts = =A7 289=20 (1965):

The actor is required to recognize that his = conduct=20 involves a risk of causing an invasion of another=92s interest if a = reasonable man=20 would do so while exercising

(a) such attention, perception of the = circumstances,=20 memory, knowledge of other pertinent matters, intelligence, and judgment = as a=20 reasonable man would have; and

(b) such superior attention, perception, = memory,=20 knowledge, intelligence, and judgment as the actor himself = has.

See also Restatement (First) = of=20 Torts =A7 289 = (1934).

^{^[20]} Restatement=20 (Second) of Torts =A7 289 cmt. m, illus. 12; see Restatement (First) of Torts = =A7 289=20 cmt. n, illus. 17.

^{^[21]} W. = Keeton, D.=20 Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts =A7 = 32, p. 185=20 (5th ed. 1984) (citations omitted); see also, e.g., Joseph = H.=20 King, Jr., Reconciling the Exercise of Judgment and the Objective = Standard of=20 Care in Medical Malpractice, 52 Okla. L. Rev. 49, 70 (1999) = (=93General=20 negligence principles commonly require that a person not only exercise=20 reasonable care, but also apply any superior knowledge or skills that he = may=20 possess.=94); John M. Logsdon, The Rise and Fall of Bystander = Recovery for=20 Negligent Infliction of Emotional Distress in North Carolina, 21 = N.C. Cent. L.J. 319, 338 = (1995) (=93Under=20 traditional tort concepts, an actor who has superior knowledge is = required to=20 exercise that knowledge to avoid risk.=94).

^{^[22]} LaVine v. Clear Creek Skiing Corp., = 557 F.2d=20 730, 734 (10th Cir. 1977).

^{^[23]} See Carroll J. Miller, Annotation, = Patient=92s=20 Failure To Reveal Medical History To Physician As Contributory = Negligence or=20 Assumption of The Risk in Defense of Malpractice Action, 33 A.L.R. = 4th 790 =A7=20 3 (1984).

^{^[24]} Restatement=20 (Second) of Torts =A7=A7 289 cmt. a, 464; see Restatement (First) of Torts = =A7=A7 289=20 cmt. a, 464.

^{^[25]} See Osterberg v. Peca, 12 S.W.3d 31, = 55 (Tex.=20 2000).

^{^[26]} LaVine, 557 F.2d at 734; accord, = Sinai v.=20 Polinger Co., 498 A.2d 520, 531‑32 (D.C. = 1985).

^{^[27]} See, e.g., Cervelli v. = Graves, 661=20 P.2d 1032, 1037 (Wyo. 1983) (holding charge erroneously instructed = jurors not to=20 consider defendant=92s training as professional truck = driver).

^{^[28]} 142 S.W.3d 418, 427 (Tex. App.=96Houston = [14th Dist.]=20 2004).

^{^[29]} Cf. Caterpillar, Inc. v. Shears, 911 = S.W.2d 379,=20 383 (Tex. 1995) (applying standard of what reasonable user should have = known,=20 despite plaintiff=92s denial he knew of danger).

^{^[30]} 142 S.W.3d at 429.

^{^[31]} City of Keller v. Wilson, 168 S.W.3d = 802, 819=20 (Tex. 2005) (noting that jurors =93may choose to believe one witness and = disbelieve another=94).

^{^[32]} 142 S.W.3d at 433-34.=20