Opinion
NO. 14-16-00996-CV
02-27-2018
DAVID W. HUFFINES, JANA LIL HUFFINES AND KATHLEEN MARIE HUFFINES, Appellants v. BARBARA BUXTON, Appellee
On Appeal from the 295th District Court Harris County, Texas
Trial Court Cause No. 2012-39240
MEMORANDUM OPINION
This case began as a personal-injury lawsuit arising out of a minor car accident, but it turned into a wrongful-death action after the lead plaintiff committed suicide. The jury found in favor of the defendant, and now, in two issues, the surviving plaintiffs argue that the charge was erroneous and that the evidence is insufficient to support the jury's adverse findings. Because we conclude that any charge error was harmless and that there is sufficient evidence to support the jury's findings, we overrule both issues and affirm the trial court's judgment.
BACKGROUND
The accident occurred when Barbara Buxton attempted to drive her vehicle across the divided thoroughfare that separated a shopping center from her residential subdivision. Barbara successfully crossed the eastbound lanes of the thoroughfare and entered the median, where she hoped to continue northbound into her subdivision. When she attempted to cross the westbound lanes, she was broadsided (or "t-boned") by David Huffines.
There were no traffic lights at the intersection, and David had the right of way. He had been traveling in the outermost lane of the thoroughfare at around thirty-five miles per hour. When David saw Barbara enter the thoroughfare roughly five car lengths ahead of him, he slammed on his brakes, but his truck still made contact with the front passenger door of her car.
Barbara and David pulled into the entrance of the subdivision to exchange information and assess the damage. Barbara found that her door was "smashed," but according to her, "it wasn't that bad." David's truck endured minor damage to the bumper.
As for bodily injuries, Barbara reported none and David said that he was "okay." No air bags deployed in the collision, and neither party required medical attention at the scene. Both parties drove away without obtaining a police report.
David began to experience discomfort shortly after the accident. He felt pain in his neck, back, and groin, all locations where he had preexisting conditions. David underwent several medical procedures to alleviate the pain, including steroid injections and surgery, but his pain continued to worsen over time, which led to a substantial disruption of his daily routine. As the pain intensified, he told friends and family that he was beginning to contemplate suicide. During the pendency of this lawsuit, he took his own life.
The lawsuit proceeded with claims made by David's wife and daughter. During the trial, David's deposition testimony was read into evidence. David testified that he had been driving with a Thermos cup between his legs because his truck did not have cup holders. He also said that when the accident occurred, his body curled forward into the steering column, pressing the Thermos cup into his abdomen and groin.
Where appropriate in this opinion, we use "David" in the singular form to also include these plaintiffs.
Barbara testified that she checked for oncoming traffic when she entered the median and that she decided to cross the westbound lanes because she believed that the thoroughfare was clear. She explained that she did not see David because this portion of the thoroughfare was flanked by shade trees; David's truck was dark green; and at that time of day, when shadows were falling on the thoroughfare, the truck appeared to be "camouflaged."
Barbara's defense attorney elicited testimony about David's preexisting conditions from his surviving family members. The testimony established that David had inguinal hernia surgery seven years before his collision with Barbara. Eleven years before that, David was seriously injured in another collision, when he was hit head-on by a wrong-way driver who was intentionally trying to kill herself. David was ejected through his windshield in that accident, while still attached to his own seat, which broke loose from the floor bolts. He was temporarily paralyzed, having suffered severe damage to his neck and back.
The trial court submitted two liability questions to the jury. The first asked whether Barbara's negligence, if any, proximately caused David's injuries up to the time of his death. The second asked whether Barbara's negligence, if any, proximately caused David's death. The jury answered both questions in the negative, and the trial court rendered a take-nothing judgment based on those findings.
THE JURY CHARGE
During the charge conference, David challenged the broad-form submission of the first liability question, which asked whether his injuries were proximately caused by Barbara's negligence, "if any." David objected to the conditional phrase "if any," arguing that the phrase should be omitted because the evidence conclusively established Barbara's negligence. The trial court overruled the objection, and now David complains of that ruling in his first issue on appeal.
For the sake of argument, we will assume without deciding that the trial court erred by overruling David's objection. The next step is to determine whether the assumed error was harmful, because we cannot reverse a judgment for charge error unless the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1). To determine whether the assumed error probably caused an improper judgment, we examine the entire record. See Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 225 (Tex. 2010). If, after reviewing the record, we can be "reasonably certain that the jury was not significantly influenced" by the assumed error, then the assumed error is harmless. See Romero v. KPH Consol., Inc., 166 S.W.3d 212, 227-28 (Tex. 2005).
We begin by observing that, during opening statements, David's attorney focused primarily on proximate cause, not on Barbara's failure to exercise ordinary care. The attorney was forthcoming about the evidence that was most hurtful to his case: he acknowledged that David had been involved in a serious accident eighteen years before his accident with Barbara. Identifying that earlier accident as a "really critical" issue, the attorney mentioned that David had suffered problems "off and on" since that accident, but the attorney claimed that those problems had resolved themselves roughly four years before the accident with Barbara. In support of that claim, the attorney referred to evidence showing that David had had a diagnostic scan of his neck taken before the accident with Barbara, and the scan showed normal results. The attorney also referred to evidence that David had enjoyed an outgoing and active lifestyle without pain until the accident with Barbara.
Barbara's attorney likewise focused on causation, and he began by drawing a contrast between the two accidents. Speaking of the accident with Barbara, he said:
It was so minor the police were not called. It was so minor there was no need for an ambulance. It was so minor no vehicles were towed from the scene. It was so minor that [David] went on home and had lunch with his friend.
Barbara's attorney then emphasized that the earlier accident had actually resulted in David being paralyzed. Referring next to a hernia surgery that also predated the second accident, Barbara's attorney suggested that all of David's injuries could be traced back to causes other than Barbara's negligence.
During the evidentiary portion of the trial, there was no material dispute that Barbara was at fault for causing the accident. The evidence showed that David had the right of way, and that Barbara failed to yield. Barbara even testified that she was sorry.
The closing statements mostly tracked the opening statements. David's attorney referred to medical expert testimony that David's injuries were a result of the accident with Barbara, whereas Barbara's attorney referred to other evidence that David had been suffering from degenerative disorders that predated the accident with Barbara. Barbara's attorney never argued that Barbara was not negligent; he just argued that Barbara is not liable for the injuries claimed by David.
Charge error is generally considered harmful when it relates to a "contested, critical issue." See Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009). But here, the contested, critical issue was proximate cause, not negligence. Based on our review of the record, we can be reasonably certain that the jury was not significantly influenced by the trial court's charge, which could have suggested that Barbara had not been negligent. Therefore, we conclude that any charge error in the submission of Barbara's negligence was harmless. Cf. Ace Fire Underwriters Ins. Co. v. Simpkins, 380 S.W.3d 291, 303-04 (Tex. App.—Fort Worth 2012, no pet.) (erroneous submission on "producing cause," which was not in dispute, was harmless because the contested, critical issue was whether the claimant had suffered a "compensable injury").
SUFFICIENCY OF THE EVIDENCE
In his second issue, David argues that the evidence is legally and factually insufficient to support the jury's findings that Barbara is not liable.
When a party attacks the legal sufficiency of an adverse finding on an issue for which he bears the burden of proof, the party must demonstrate that the evidence establishes, as a matter of law, all vital facts in support of the issue. See Dow Chem. Co v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). In reviewing a "matter of law" challenge, we first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. We may only sustain a legal-sufficiency challenge if the contrary position is conclusively established. Id.
David's legal-sufficiency challenge must fail if the record contains some evidence from which the jury could have reasonably concluded that his injuries were not proximately caused by Barbara's negligence. Viewing the record in the light most favorable to the verdict, we conclude that the record contains such evidence. The jury heard testimony that the accident with Barbara was relatively minor: no air bags deployed; no one complained of injuries at the scene of the accident; and both parties drove away without the assistance of police, emergency medical personnel, or a tow truck driver. The jury also heard testimony that David had suffered serious injuries in his past, which could have been responsible for the pain he claimed after the accident with Barbara. Crediting this evidence as we must, we conclude that there is legally sufficient evidence to support the jury's implied finding that Barbara's negligence did not proximately cause David's injuries. See Walker v. Scopel, No. 14-14-00411-CV, 2016 WL 552197, at *4 (Tex. App.—Houston [14th Dist.] Feb. 11, 2016, no pet.) (mem. op.) (the jury was free to determine that the plaintiff's claimed injuries were caused by a previous accident rather than the accident involving the defendant); Paz v. Molina, No. 14-11-00664-CV, 2012 WL 2466578, at *3-5 (Tex. App.—Houston [14th Dist.] June 28, 2012, no pet.) (mem. op.) (testimony that the accident victim had initially declined medical treatment and records showing that she was later discharged with "no serious injury" and "no complaints of pain" supported the jury's finding of zero damages).
When a party attacks the factual sufficiency of an adverse finding on an issue for which he has the burden of proof, the party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. See Dow Chem. Co., 46 S.W.3d at 242. We consider and weigh all of the evidence in a factual-sufficiency review, not just the evidence in support of the jury's findings. Id. We may only set aside a verdict for factually insufficient evidence if the jury's findings are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.
David's brief focuses on the evidence of both negligence and causation, but we need only focus on causation. As for that evidence, David cites the medical expert testimony that he had not experienced pain for several years before his accident with Barbara, and that his pain since the accident was in high probability a direct result of the accident. Controverting that testimony is the evidence that David's truck suffered very little damage in the accident with Barbara, David did not complain of any injuries at the scene of the accident, and David had suffered serious bodily injuries in a separate accident many years earlier. The jury was free to determine the credibility of this evidence, and based on the record as a whole, we cannot say that the jury's findings in favor of Barbara are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Walker, 2016 WL 552197, at *4.
CONCLUSION
The trial court's judgment is affirmed.
/s/ Tracy Christopher
Justice Panel consists of Justices Christopher, Donovan, and Jewell.