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Click here for the full text of this decision FACTS:John D. Moore was driving the cab portion of his tractor-trailer rig on Loop 610 North in Houston on Sept. 20, 1999. Though it was rush hour, traffic was moving at a rate between 40 m.p.h. and 55 m.p.h. Moore was traveling at approximately 45 m.p.h. as he crested a hill just before the Wayside exit. On the other side of the hill, Moore saw a line of cars in his same lane, stopped, lined up to enter the exit lane. Moore downshifted, swerved into the emergency lane and ran along the guardrail until he began skidding. When he saw that the emergency lane was about to run out, he attempted to steer the cab in between two cars. In doing so, he swiped the back end of a Ford Expedition, driven by Maethenia Jordan, sending the SUV across the highway. Jordan suffered a number of injuries from the crash. After a brief investigation shortly after the accident, Moore was charged with failure to control his speed. Moore was not cited for speeding. Jordan sued Jordan and the owner of Jordan’s rig, Sava Inc. During voir dire, one juror stated that she would have a hard time awarding someone damages for pain and suffering, but she also stated she thought she could follow the court’s instructions. Another juror stated that she thought pain and suffering was inappropriate unless it was “a child or grandma or somebody that was with you.” Jordan used two peremptory challenges to strike both of these potential jurors when the trial court denied her request to strike both for cause. Over Jordan’s objection, trial court submitted a jury an instruction on “sudden emergency.” The jury found for Moore and Sava, and a take-nothing judgment was rendered against Moore. HOLDING:Affirmed. Addressing the peremptory strikes used against the two jurors, the court finds that the first juror was not biased. Their responses did not establish that they would be unable to set aside their personal beliefs, so the trial court did not abuse its discretion by not striking her. The court adds that Jordan bore the burden of showing that the second juror’s state of mind would naturally lead to the inference that she could not act impartially. The court next assesses the propriety of the sudden emergency instruction. To warrant such an instruction, the evidence must demonstrate: 1. the emergency condition arose suddenly and unexpectedly; 2. the condition was not proximately caused by the negligent act or omission of the person whose conduct is under inquiry; and 3. after a condition 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. The court acknowledges that no court has created a test for the maximum length of time after which a condition can no longer be said to have arisen suddenly and unexpectedly. The term nonetheless applies here, the court rules, where the line of cars may not have been created “suddenly, but the condition of a driver coming upon the scene can still be considered to have “arisen suddenly.” The court takes note of several court decisions where a sudden emergency instruction was given when an act of nature was a factor in a collision. The court adds, however, that an act of nature is not a necessary prerequisite for a sudden emergency. Moreover, even in cases involving acts of nature, the emergency condition is not said to be the act of nature, but rather the driver’s encountering another vehicle under sudden and unexpected circumstances not created by his own wrongful actions, whether it is a stopped car, a car slowing down, or an oncoming car in the same lane of traffic. The same was true in this case. The court disagrees with Jordan’s characterization of the traffic in this case as “standard rush hour, bumper-to-bumper traffic,” where stoppages are to be expected, and Moore’s encounter with the line of cars did not arise suddenly. The court notes that there was no evidence of cars slowed down on the other side of the hill as Moore crested it. The court then notes that sudden emergency instructions have been used in rear-end cases, refuting Jordan’s contention that the mere occurrence of a rear-end collision establishes negligence as a matter of law. Here, there is evidence that upon encountering the emergency situation, he acted the same as would a person of ordinary prudence under the same or similar circumstances. “In sum, we conclude there is evidence in the record from which the jury could reasonably have inferred that the line of stopped cars on the blind side of the overpass was sudden and unexpected, that Moore’s actions prior to the emergency were not a proximate cause of the collision, that the emergency, to a reasonable person, would have required immediate action without time for deliberation, and that Moore’s actions after the emergency condition arose did not differ from those of a person of ordinary prudence under the same or similar circumstances.” Finally, the court says the evidence was factually sufficient to sustain the verdict, noting however that it may have reached a different conclusion. OPINION:Keyes, J.; Radack, C.J., Keyes and Alcala, JJ.

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