X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:At around 3 p.m. on Feb. 1, 2004, Antonio Torres was driving his pick-up truck in the middle lane of Main Street in Houston next to Reliant Stadium, where the Super Bowl was being held. Torres’ 5-year-old son accompanied him. Approximately two car lengths behind him, 17-year-old Colin Tessier was driving his mother’s car in the same lane and traveling at approximately 15 m.p.h. or 20 m.p.h. Two friends accompanied Tessier, and his radio was on. There were many pedestrians on the sidewalks and Tessier had seen people walking in and on Main Street near the stadium that day. After both cars had traveled several blocks, Torres stopped at a red traffic light. At about the same time, Tessier looked to his left for two and one-half or three seconds while he continued to drive down Main Street, making no effort to stop, decelerate or swerve to avoid Torres’ vehicle. Consequently, the front of Tessier’s car collided with the back of Torres’ truck. Torres later testified that although he felt pain right away, he did not complain of pain at that time, because he was more concerned about his son. After the police concluded their investigation of the accident, Torres drove to his wife’s place of employment and drove her home from work. He testified that he told his wife that his back hurt and also took Tylenol before going to bed. Torres further testified that his pain worsened over the next couple of days and he decided that he needed professional advice. He therefore consulted an attorney. According to Torres’ trial testimony, his attorney gave him a list of doctors and Torres chose a chiropractor from the list. He began treatment on Feb. 5, 2004, for pain in his neck and his upper and lower back and shortly thereafter filed suit against Tessier for negligence. Torres was treated approximately 12 times over the next four weeks. The chiropractor prescribed no medicines and performed no X-rays, MRIs or CAT scans. During cross-examination, Torres conceded that he testified in his deposition that his attorney referred him directly to the chiropractor who treated him for the injuries he allegedly sustained. Torres also agreed that he received no medical bills from the chiropractor. Moreover, he admitted that he had been in a previous accident in which he had been driving the same truck, was struck from behind and received treatment for his lower back. As a result of that accident, Torres had filed suit using the same attorney that he initially consulted in this case but received treated at a different facility by a different health care provider. According to Torres, the suit arising from the previous accident concluded about six months before this case went to trial. Torres made no claim for property damage in this suit and no claim for future impairment or pain but instead sought $2,685 for past medical expenses and damages for past pain and mental anguish. Although Tessier agreed that if he had been keeping a proper lookout he would have stopped his car before colliding with Torres, the parties hotly disputed Tessier’s reason for driving through downtown Houston without attending to the road. During trial, Tessier testified that “[o]ut of the corner of my eye I glanced over because of fear of hitting someone, something.” Torres’ attorney produced evidence that Tessier had previously testified, “I saw somebody that caught my interest on the side.” At trial, Tessier explained that the person to whom he referred in his deposition was “a pedestrian on the road. Or in, you know, in that area.” He stated that “I glanced over to the left and accidentally looked at someone, fear of hitting a pedestrian” and when asked what had caught his attention, Tessier stated, “It was a movement, which, you know, was out of a group of people. . . . I saw a movement amongst everything on the road. People and whatnot.” Based on this testimony, Tessier requested the following sudden-emergency jury instruction: “If a person is confronted by an”emergency’ arising suddenly and unexpectedly, which was not proximately caused by any negligence on his part and which, to a reasonable person, requires immediate action without time for deliberation, his conduct in such an emergency is not negligence or failure to use ordinary care if, after such emergency arises, he acts as a person of ordinary prudence would have acted under the same or similar circumstances.” Torres objected to the instruction on the grounds that no evidence supported its submission. Over Torres’ objections, the trial court included the sudden-emergency instruction in the following jury question: “Did the negligence, if any, of those named below proximately cause the occurrence in question?” The names of Torres and Tessier followed the question, and the jury wrote “no” next to each name. In addition to the sudden-emergency instruction, the jury received instructions defining “negligence,” “ordinary care” and “proximate cause.” The jury charge, however, did not contain an instruction identifying or defining “the occurrence in question.” The trial court rendered judgment in accordance with the verdict. Torres appealed. HOLDING:Affirmed. In a single issue, Torres contended that no evidence supported the submission of a sudden-emergency jury instruction, and the trial court’s error in including the instruction probably caused the rendition of an improper judgment. The trial court, the court stated, must submit jury questions, instructions and definitions that are raised by the written pleadings and the evidence. The court reviewed a challenged jury charge for abuse of discretion. Assuming without deciding that the sudden-emergency instruction should not have been submitted, the court disagreed with Torres’ contention that the instruction probably caused the jury to render an improper verdict. First, the court found no clear indication that the jury relied on this instruction. Moreover, the court concluded that another explanation for the verdict was both more likely and more reasonable: the jury’s failure to find negligence “could reasonably be based on its failure to find causation, damages, or both.” Specifically, the jury could reach any of these conclusions based on evidence such as the following: 1. Torres refused an ambulance at the scene; 2. he did not complain of pain immediately; 3. he did not seek medical treatment until after he consulted a lawyer; 4. all of Torres’ medical care was rendered by a chiropractor recommended by his attorney; Torres had previously been in a rear-end collision in the same vehicle, claimed back injuries, and sued the tortfeasor using the same attorney; although the previous case concluded only six months before this accident, Torres selected a different health care provider for this accident; the medical records indicated that Torres did not disclose his previous injury or treatment to the chiropractor treating him for this accident; the chiropractor ordered no x-rays, MRI’s or other scans; the chiropractor did not prescribe any medication; the medical claim forms contained the affirmative statement that his injury was not related to an auto accident; the medical claim forms also dated the onset of his symptoms to January 2004; and Torres’ payroll records show that in his occupation as a carpet and flooring installer, he earned more money during the month of his injury and treatment than in eight other months that year. Considering all of the evidence, the court concluded a reasonable jury could have found that Torres failed to prove all of the elements of his negligence claim; therefore, the jury could have answered the broad-form liability question in the negative without regard to the sudden-emergency instruction. OPINION:Guzman, J.; Hedges, C.J., and Hudson and Guzman, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.