Opinion
CIVIL ACTION NO. SA-01-CA-649-OG
May 24, 2002
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is a personal injury and wrongful death lawsuit arising out of an automobile accident which occurred on July 28, 2000 about 4:20 a.m. on IH-35 South, between New Braunfels and San Antonio, Texas. The accident resulted in bodily injury to Mr. Phang and the death of his wife, Muoi Xu Huynh, the mother of two minor children, Phu Minh Phang and Qui Buu Phang. Plaintiffs filed this lawsuit against Verspeeten and Mr. Babcock in May 2001, alleging negligence and seeking personal injury, wrongful death and survival damages. The parties conducted the necessary discovery and the case proceeded to non-jury trial on May 6, 2002. Both sides presented evidence, including expert testimony, and trial concluded on May 8, 2002. After listening to the evidence, reviewing the record and considering the applicable law, the Court makes the following findings of fact and conclusions of law:
1. Subject Matter Jurisdiction.
The Court has subject matter jurisdiction over this lawsuit, pursuant to 28 U.S.C. § 1332.
2. Personal Jurisdiction.
The parties do not contest personal jurisdiction, which clearly exists under the facts of this case.
3. Venue.
Proper venue lies in the Western District of Texas, where Plaintiffs reside and the accident occurred.
4. Citizenship.
Plaintiffs are citizens of the State of Texas and reside in San Antonio, Texas. Defendants are citizens of Ontario, Canada.
5. Stipulations.
The parties have stipulated to the following facts:
On July 28, 2000, Plaintiff, Ban Chan Phang and his wife, Muoi Xu Huynh, left their employment at approximately 4:00 a.m. and proceeded towards their home in Bexar County, Texas. Their vehicle was involved in a motor vehicle accident whereby an 18-wheel truck struck the Phang vehicle and caused it to be disabled on the roadway. It was disabled entirely within the left lane of the roadway and its electrical system was non-functioning. A call to the local police department was made and a police officer was dispatched to the scene. Before the police arrived at the scene, approximately ten minutes later, the Defendant, Larry Alan Babcock, struck the Plaintiff's vehicle still containing his wife, Muoi Xu Huynh. Plaintiff had been in the roadway waving vehicles into the right-hand lane and warning vehicles of the fact that his vehicle had been disabled. There were no injuries due to the first accident and the subsequent accident caused injuries to the Plaintiff's wife that caused her death. She later died at approximately 2:00 p.m. on July 29, 2000 at the University Hospital in San Antonio, Texas.
The parties have also stipulated that Verspeeten Cartage Limited is vicariously liable for the acts of Larry Babcock. (Dkt. #39).
The parties have further stipulated that the medical expenses for Muoi Xu Huynh are $37,910.66; the medical expenses for Ban Chan Phang are $11,252.25; and, the funeral expenses for Muoi Xu Huynh are $3,924.57. The property damage is $4,500.00. (Dkt. #26, 45).
6. Background of the parties.
Ban Chan Phang is a 61-year old gentleman who was born and raised in South Vietnam, He speaks both Chinese and Vietnamese. He served in the military police for seven (7) years during the Vietnam War as an interpreter during the interrogation of captured enemy soldiers. When North Vietnam took over Saigon, he spent five (5) years as a prisoner of war. After being released, he worked as a laborer, fixing bicycles and selling sandals.
Mr. Phang married Muoi Xu Huynh in 1980. Mrs. Huynh also spoke Vietnamese and Chinese. Mr. Phang and Mrs. Huynh became parents of a son, Phu Minh Phang, in 1989 and a daughter, Qui Buu Phang, in 1990. In 1996, through the assistance of the Catholic Church, the Phang family left their home in South Vietnam to live in the United States. In doing so, they left the only life they had ever known. They left behind bonds to family, community, relationships, culture — the very fabric of their existence. They came to search for a new life in a foreign land, after Mr. Phang had sacrificed his liberty in the fight for more freedom in his own country. The Phangs had very few material possessions, but brought with them a strong work ethic which served them well — and still does today. They became contributing members of American society, and truly good examples of the type of immigrants that built the framework of this country.
After their arrival in this country, the Phangs resided in Arlington, Texas for a relatively short period of time, and then settled in San Antonio. Mr. Phang and Mrs. Huynh began working as assemblers of computer parts at a company located in New Braunfels, Texas. They lived in a two bedroom apartment in San Antonio, and commuted to work. Mrs. Huynh did not drive, nor did she have a driver's license; therefore, Mr. Phang always did the driving. Because they had no relatives in this country, the family relied solely on each other. Although Mr. Phang helped when necessary, Mrs. Huynh was primarily responsible for the cooking, cleaning and the children. Both parents disciplined the children and Mr. Phang went to school meetings; however, Mrs. Huynh otherwise tended to their daily needs, which included morning and bedtime rituals, bathing, dressing, eating, homework, shopping, entertainment and providing one-on-one comfort, support and guidance. Mr. Phang testified that the children "were closer to their mother" and have been "a little lost" since her death. (Tr. 459-467). Phu Phang testified that his mother "mean[t] the world" to them. (Tr. 504).
Verspeeten Cartage Limited is a Canadian trucking company. Mr. Babcock, a 27 year-old young man, is married with two children, and lives in Tilsonburg, Ontario, Canada. After graduating from high school, Mr. Babcock worked in construction, and then a sawmill. He attended driving school for about four months, and then started working in April 2000 as a truck driver for Frank Voth, who leases trucks to Verspeeten. (P Exh. 6-D, p. 12). At the time period in question, Verspeeten transported goods from Canada to Mexico, and the IH-35 route was well-traveled by Verspeeten drivers.
Ms. Hiiuvain believed the accident happened on Mr. Babcock's second trip to Laredo; however, Mr. Babcock testified that he had traveled the route about 14 times prior to the accident. (Tr. 166; P Exh. 6-C, pp. 17-19).
7. The accident.
At approximately 4:20 a.m. on July 28, 2000, Ban Phang and his wife Muoi Huynh were traveling to their home in San Antonio from their place of employment in New Braunfels. The weather was clear and the roads were dry. They were traveling southbound on IH-35 through a construction zone. Mr. Phang was driving in the left lane of IH-35 when the right front fender of their 1990 Mitsubishi Mirage was sideswiped by an 18-wheeler traveling in the right lane. (Tr. 453). There were no shoulders on the interstate at that location, and the two lanes of southbound traffic were bordered on both sides by concrete barriers. Plaintiffs vehicle stopped running and came to rest in the left lane of the interstate. Neither Mr. Phang nor his wife had suffered any injuries, but their car was completely disabled.
Lt. Wommack testified that approximately 79,000 vehicles per day travel on IH-35 between Austin and San Antonio. It is an extremely dangerous stretch of highway because there are only two lanes in some areas, such as New Braunfels, and the volume is simply too much. He further testified that more 18-wheelers than cars travel that stretch of highway at night. (Tr. 428-430).
Mr. Phang exited the vehicle and urged his wife to do the same. However, she was afraid and "did not know what to do." (Tr. 453-454). Mr. Phang walked about 15 feet behind their vehicle and tried to wave all traffic into the right lane. There were 3-4 cars and trucks immediately behind them which had completely stopped and turned on their emergency blinkers, but those vehicles merged into the right lane and continued down the interstate without any difficulty whatsoever. (Tr. 454-455). Many other vehicles followed, and Mr. Phang testified that about 20 other cars and trucks were able to slow down, merge and take other reasonable action to safely pass them with no difficulty whatsoever. (Tr. 454-456).
Mr. Babcock, who was driving an 18-wheeler on behalf of Verspeeten, was southbound in the left lane of IH-35. The reason he was in the left lane, and the length of time he was in the left lane, are disputed. However, he did not see Mr. Phang until he was about 70 feet away, and simply lifted his foot off the gas pedal and steered slightly to the right. (Tr. 176-177, 211). His 18-wheeler brushed by Mr. Phang, causing relatively minor injuries. (Tr. 457). He then saw the Phang vehicle and applied his brakes at the point of impact, or immediately before. (Tr. 175, 183, 225). He was traveling approximately 50-55 mph at the time of the collision. Mrs. Huynh suffered serious injuries, and died the next day.
8. Negligence.
To prevail on a claim for negligence, the Plaintiffs must prove: (1) the existence of a duty; (2) a breach of that duty; (3) proximate cause; and (4) damages. Gutierrez v. Excel Corp., 106 F.3d 683, 686 (5th Cir. 1997); Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). In this case, Plaintiffs claim that Larry Babcock was negligent in failing to keep a proper lookout, failing to timely apply his brakes, and in driving in the passing lane in a construction zone. They allege that such negligence proximately caused the accident and injuries resulting therefrom.
A. Driving in the left lane.
There was conflicting testimony about why Mr. Babcock was driving in the left lane, and how long he had been driving in the left lane. The only eyewitnesses were Mr. Babcock, Mr. Phang and Ms. Debora Hiiuvain, a former employee of Verspeeten.
Ms. Hiiuvain testified that two Verspeeten trucks were traveling to Laredo. Ms. Hiiuvain and her team driver, Jay McCauley, were driving in one truck, and switching drivers every 5 hours. Mr. Babcock and his team driver, Jay Cromie, were driving in another truck, and switching drivers every 10 hours. (P Exh. 6-C, p. 35). They had stopped to take a break at a truck stop on the north side of New Braunfels. Ms. Hiiuvain's team driver had been driving prior to the break. They switched drivers at the truck stop and Ms. Hiiuvain began driving. Mr. Babcock had been driving about 5 hours, but he did not switch with his team driver. (P Exh. 6-C, p. 35). After their break, they resumed their trip and proceeded down 111-35. Mr. Babcock was leading, and Ms. Hiiuvain was following. She had warned Mr. Babcock to go slower because they were entering a construction zone. (P Exh. 6-C, pp. 82-83).
They approached some trucks in the right lane that were slowing down. During deposition, Ms. Hiiuvain testified they had slowed down "a little bit". In an earlier recorded statement, she stated they had slowed down "considerably." (P Exh. 6-A; P Exh. 6-C, pp. 19, 78-79). At that point, Mr. Babcock radioed her and said he was going to pass them. (P Exh. 6-C, p. 51-52, 54). Mr. Babcock then pulled into the left lane to pass them and she followed. Ms. Hiiuvain saw the other trucks in the right lane applying their brakes to slow down, but Mr. Babcock did not. (P Exh. 6-C, pp. 27, 45, 47-49). Then, all of a sudden, Mr. Babcock slammed on his brakes and radioed her that he had struck a car. (P Exh. 6-C, p. 21). In her earlier statement, Ms. Hiiuvain stated that "[h]e just came around one of the trucks and just hit it," indicating they had moved into the left lane immediately before the collision occurred. (P Exh. 6-A). However, she stated during deposition that they had been in the left lane about 4-5 minutes when the collision occurred. (P Exh. 6-C, pp. 19-20, 55-57).
Mr. Babcock's testimony at trial was substantially different from Ms. Hiiuvain's testimony, and somewhat inconsistent with his prior deposition testimony. He did not recall Ms. Hiiuvain telling him to be careful because they were approaching a construction zone. (Tr. 154). However, he conceded that he was personally familiar with that area, and that construction zones do pose a hazard. (Tr. 154-155). He did not recall other trucks in the right lane slowing down or telling Ms. Hiiuvain that he was going to pass the other trucks. (Tr. 165-166, 174). In fact, he did not remember that he was in the left lane for the purpose of passing other vehicles. (Tr. 158-159, 165, 167). He initially stated that he was traveling in the left lane because he thought there was a sign directing all truck drivers to use the left lane. (Tr. 159-160, 164). However, after realizing that no such sign existed and that the only signage stated "left lane for passing only," Mr. Babcock conceded that he had been wrong. (P Exh. 11, P Exh. 12; Tr. 167-169). Mr. Babcock agreed that trucks should not pass in construction zones, and acknowledged at trial that he "had no business being in the left lane" if he was not passing. (Tr. 151-153, 169). Mr. Babcock believed he had been traveling in the left lane for about 1/4 mile, positioned about 50 feet to the left and rear of three 18-wheelers in the right lane, just before the accident. (Tr. 159, 186, 188, 194-195).
Mr. Phang, who was watching all oncoming traffic to warn them, testified that he saw Mr. Babcock's truck enter the left lane, and that he was "going fast." He said there were about three vehicles in front of Babcock in the right lane when he changed lanes. (Tr. 457, 491-492).
Defendants' accident reconstruction expert, Dr. Clark McDonald, testified that Mr. Babcock probably would have been at least 900 feet from the point of impact before initiating a lane change, assuming there was 100 feet between vehicles prior to passing and there was a speed differential of 10 mph between them. (Tr. 570, 677). He further opined that driving in the left lane, whether passing or not, was not negligent. (Tr. 575).
Plaintiffs' accident reconstruction expert, Dr. Joe Thornhill, testified that Mr. Babcock could have been as close as 600 feet from the point of impact when he initiated a lane change. (Tr. 323). He further stated that Mr. Babcock should not have been in the left lane if he was not passing; and, if he was passing, he was not being reasonably prudent in doing so. (Tr. 268-278).
Under ordinary circumstances, the Court would not conclude that changing lanes and/or traveling in the left lane in a construction zone, standing alone, constitutes negligence. Under the circumstances in this case, however, Mr. Babcock clearly placed himself in a position of risk and he failed to appreciate the gravity of such risk. He knew that driving in a construction zone at night presented a hazardous situation, and that he should be cautious. Nevertheless, he changed lanes to pass other vehicles when the other vehicles were slowing down. Once he changed lanes, and traveled alongside other 18-wheelers, he left no space for maneuvering. (P Exh. 6-C, p. 65; Tr. 268-271). Mr. Babcock should have avoided this hazardous situation by simply staying in the right lane and reducing his speed. If he had done so, the accident would not have happened. (Tr. 205).
B. Failure to keep a proper look-out.
Regardless of when Mr. Babcock changed lanes, he still had a duty to keep a proper look-out. This was especially important when driving at night in a construction zone, because Mr. Babcock needed to be alert to every possible hazard. Both Mr. Babcock and Dr. McDonald agreed that a stalled car is a hazard, and Dr. McDonald further agreed that stalled cars in the roadway should be anticipated in the exercise of ordinary care. (Tr. 169-170, 618-619). Despite being presented with several signs of an oncoming hazard, Mr. Babcock failed to see them and/or failed to respond to them. (Tr. 284-386).
No static or immutable rule exists regarding proper lookout. Taylor v. Bair, 414 F.2d 815, 819 (5th Cir. 1969). It just depends on the particular circumstances in each case. See id.
As discussed above, Ms. Hiiuvain testified that vehicles in the right lane slowed down, and Mr. Babcock chose to pass them rather than reduce his speed. Ms. Hiiuvain clearly remembered seeing brake lights on other vehicles in the right lane prior to the collision, yet Mr. Babcock somehow failed to see them. (P Exh. 6-C, pp. 27, 45, 47-49; Tr. 170, 172-174, 183-184, 194). When Mr. Babcock approached Mr. Phang, he failed to recognize that Mr. Phang was warning him of a hazardous condition. (Tr. 197-198). Finally, Mr. Babcock failed to see the Phang vehicle when it should have been visible to him. (Tr. 177-179, 181-183, 197-199, 204).
During deposition, Mr. Babcock stated that he did not realize what Mr. Phang was doing, and that he thought maybe he was trying to commit suicide. (P Exh. 6-D, p. 9).
It is undisputed that the Phang vehicle was totally disabled, with no lights or emergency flashers. However, the car did have reflectors across the back of the vehicle. Dr. Thornhill testified that such reflectors maybe seen from several hundred feet away, yet Mr. Babcock failed to see them. (Tr. 257, 265-266) It is also undisputed that Mr. Babcock was driving with low beam headlights, which illuminate up to 250 feet, yet he failed to see the vehicle. Dr. Thornhill also testified, and Mr. Babcock acknowledged, that lights from the vehicles in the right lane would have provided further illumination of oncoming hazards for vehicles in the left lane. (Tr. 266, 359) Finally, there is no evidence whatsoever that anything was obstructing Mr. Babcock's view. Although Mr. Babcock and Dr. McDonald characterized Mr. Phang as a " distraction," Mr. Babcock should have realized that Mr. Phang was a warning, and he should have heeded that warning. (P Exh. D-6, p. 40, Tr. 624). After hearing all the evidence, the Court cannot understand how Mr. Babcock saw Mr. Phang (who is a very small man), but failed to see the Mitsubishi, which was only 15-30 feet beyond him. (P Exh. 6-D, p. 34; Tr. 177-179, 181-183, 197-199, 204). In any event, he should have seen it sooner and could have seen it sooner if he had been keeping a proper look-out.
Dr. McDonald admitted only that it was "possible" to see reflex reflectors further than 250 feet; he would not concede that it was "probable." (Tr. 623).
As noted above, Mr. Babcock testified that he was traveling 50 feet behind three 18-wheelers in the right lane immediately before the accident. Each 18-wheeler is about 70 feet long, and presumably there was at least 70 feet between them. Therefore, the truck traveling in front was probably at least 350 feet in front of Mr. Babcock's truck. The headlights of all three trucks, along with the headlights of Mt. Babcock's truck, should have provided sufficient illumination.
C. Failure to timely apply brakes.
As noted above, Mr. Babcock testified that he was about 70 feet away from Mr. Phang when he saw him. Rather than apply his brakes, he chose to simply take his foot off the accelerator. He did not apply his brakes until impact, or immediately before impact. He was traveling about 50-55 mph at the time. Although Mr. Babcock should have seen both Mr. Phang and the Mitsubishi sooner, he also made a deliberate decision not to apply his brakes even after he saw Mr. Phang. His initial failure to act, combined with his decision not to brake even after he should have realized there was danger ahead, was fatal.
Dr. Thornhill testified (and Mr. Babcock agreed during deposition) that he could have avoided the collision if he had fully applied his brakes at 200 feet. (P Exh. D-6, pp. 54-56; Tr. 683-685). Dr. Thornhill further testified that Mr. Babcock could have even applied his brakes at 90% for 200 feet, and he would have been traveling at only 7.8 mph, rather than 50 mph, at the point of impact. Alternatively, if Mr. Babcock had applied his brakes at 90% for 240 feet, he could have avoided hitting the Phang vehicle. (Tr. 683-689). Although defense counsel pointed out that this calculation did not include perception/reaction time prior to brake application, the totality of the evidence shows that Mr. Babcock could have seen and perceived a hazard, and reacted by fully applying his brakes in sufficient time to avoid the accident if he had been keeping a proper look-out. (Tr. 370-371; 384-386).
In sum, the evidence shows that at least 20 other drivers exercised ordinary care and successfully avoided a collision with the Phang vehicle. Mr. Babcock did not. He was passing and/or traveling alongside three other 18-wheelers in a construction zone, with little or no room for maneuvering. He failed to reduce the speed of his own truck, even though he was traveling in a construction zone at night and other vehicles were slowing down. He failed to see any brake lights on vehicles traveling beside or in front of him, even though the evidence shows that other vehicles were, in fact, applying their brakes. He failed to recognize and heed the warning of Mr. Phang (by standing on the side of the interstate and waving his arms); he failed to see the Mitsubishi Mirage, or its reflectors, at a reasonable distance; and, he failed to timely apply his brakes. Such actions constitute negligence, which proximately caused the accident and resulting injuries.
This case is similar to Peck v. Century Concrete Products, Inc., 375 S.W.2d 459 (Tex.Civ.App.-Fort Worth 1964, writ ref d n.r.e.). That case also involved a stalled vehicle that was struck from the rear. As in this case, the collision occurred at a relatively high speed, and there was no effort to avoid the accident until the last moment before impact. Prior to the collision, several other vehicles traveling in the same direction were able to and did see the stalled vehicle, and safely passed it. The court therein stated, in part:
While Peck was not required to anticipate negligent or unlawful conduct on the part of others, he was not entitled to close his eyes to that which was plainly visible and which would have been observed by a person of ordinary prudence similarly situated. . . Every driver who uses the highways of this State is charged with the responsibility of maintaining a proper lookout for his own safety. . . Seldom, if ever, may one predict with any certainty the dangers that a proper lookout will reveal. Certainly it is to be expected that stalled, parked or disabled vehicles may be parked on or near the pavement. These and many other obstacles . . . must be anticipated by the prudent driver in the exercise of ordinary care.Id. at 462.
9. Unavoidable accident.
Defendants allege that the occurrence in question was an "unavoidable accident." This doctrine is applicable only when there is evidence that the event was proximately caused by a nonhuman condition and not by the negligence of any party to the event. Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 803 (Tex. 1992); Reinhart v. Young, 906 S.W.2d 471 (Tex. 1995). For example, it may apply in cases involving environmental conditions such as fog, snow, sleet, wet or slick pavement, or obstruction of view. Reinhart, 906 S.W.2d at 471; Hill, 849 S.W.2d at 803. It may also apply in a case involving a very young child, who is legally incapable of negligence. Reinhart, 906 S.W.2d at 471; Hill, 849 S.W.2d at 803.
In this case, the accident did take place in a construction zone at night, but the skies were clear and the pavement was dry. There is no evidence whatsoever that anything obstructed Mr. Babcock's view. Nor was there any unexpected act of God or environmental condition that may have caused the accident. Darkness occurs every 10-12 hours in Texas, and does not make an accident unavoidable. Ordonez v. M.W. McCurdy Co. Inc., 984 S.W.2d 264, 272 (Tex.App.-Houston [1St Dist.] 1998, no writ) (darkness does not constitute an environmental or physical condition justifying the application of the doctrine). There is simply no extrinsic or uncontrollable event which justifies the application of the doctrine in this case. Moreover, the conduct of Mr. Babcock, as discussed above, negates any argument that the accident was unavoidable. At least 20 other vehicles avoided colliding with the Phang vehicle, and Mr. Babcock could have avoided the collision if he had been driving in a reasonably prudent manner.
To hold otherwise would mean that any driver who negligently causes an accident at night could simply blame it on darkness, and his or her action would be excusable.
10. Sudden emergency.
Defendants also contend that Mr. Babcock's conduct should be excused under the doctrine of "sudden emergency." The doctrine is not applicable, however, if the defendant's negligence caused the emergency in question to arise. Trezza v. Dame, 370 F.2d 1006, 1008 (5th Cir. 1967). Stated another way, the defendant "is obligated to establish that his negligence, if any, did not (a) concur in bringing about the perilous situation — or did not (b) contribute to the creation of the startled, dazed or confused condition of his mind." Higgonbotham v. Ritchie, 367 S.W.2d 210, 211 (Tex.App.-Fort Worth 1963, no writ).
In this case, Defendants contend the "emergency" arose when Mr. Phang's vehicle stalled on the interstate. If this were true, any actions or failure to act by any drivers approaching a stalled vehicle would be excused because they were simply responding to an "emergency." As noted above, both Mr. Babcock and Dr. McDonald agreed that a stalled car is a hazard, and Dr. McDonald further agreed that stalled cars in the roadway should be anticipated in the exercise of ordinary care. (Tr. 169-170, 618-619). An "emergency", on the other hand, is something that arises suddenly and unexpectedly, and requires the person responding to the emergency to take immediate action without full deliberation.
The Court cannot agree that a stalled vehicle, even in the interstate, creates a "sudden emergency" requiring application of the doctrine. The evidence shows that at least 20 other drivers managed to recognize the hazard in sufficient time to deliberate and avoid a collision. However, Mr. Babcock was not using ordinary care, and he created an emergency when he approached a hazardous situation and failed to keep a proper lookout. Because Mr. Babcock's negligence caused the emergency in question, the doctrine is not applicable. See DeLeon v. Pickens, 933 S.W.2d 286, 293 (Tex.App.-Corpus Christi 1996, writ denied) ("We agree that the sudden emergency doctrine is not applicable in cases . . . where the respective defendants are deemed negligent for either failing to maintain a proper distance from the preceding vehicle, or failing to keep a proper lookout") (citations omitted).
11. Sole proximate cause.
Defendants further assert that the driver of the 18-wheeler that first struck the right front fender of the Phang vehicle was the sole proximate cause of the accident; or, alternatively, that liability should be apportioned with some percentage of liability being attributed to the third party truck driver.
"Sole proximate cause" means the only proximate cause, and applies to neither the conduct of the plaintiff nor that of the defendant, but to a third party who is alleged to be responsible for the accident. See First Assembly of God Inc. v. Texas Utilities Elec. Co., 52 S.W.3d 482, 493 (Tex.App.-Dallas 2001, no pet.); See also Rankin v. Atwood Vacuum Machine Co., 831 S.W.2d 463, 465 (Tex.App.-Houston [14th Dist.] 1992, writ denied per curiam); see also American Jet, Inc. v. Leyendecker, 683 S.W.2d 121, 126 (Tex.App.-San Antonio 1984, no writ).
In this case, there is no evidence to support a finding that the third party truck driver was the sole proximate cause of the accident, or that any portion of liability may be attributed to his conduct. Unfortunately, that truck driver continued driving down the interstate after his 18-wheeler struck the Phang vehicle. The only eyewitness to the incident was Mr. Phang, who testified that he did not know exactly how the 18-wheeler hit him. He could only say that he did not do anything to cause the 18-wheeler to hit his vehicle. (Tr. 494-495). Ms. Hiiuvain stated that a driver of another 18-wheeler that stopped after the accident told her that the trailer of the 18-wheeler that struck the Phang vehicle had been swaying back and forth. (P Exh. 6-C, pp. 62-63). However, there is no evidence to support such statement, which is merely hearsay. Nor is there any evidence to show that the driver of the 18-wheeler did something negligent to cause his trailer to sway and hit the Phang vehicle. The mere occurrence of a collision is not evidence of negligence. See Bodine v. Welder's Equip. Co., 520 S.W.2d 407, 413 (Tex.Civ.App.-Corpus Christi 1975, writ ref'd n.r.e.); see also Roth v. Brillhart, 512 S.W.2d 57, 61 (Tex.Civ.App.-Amarillo 1974, no writ). Because there is no evidence that the third party driver of the 18-wheeler which first struck the Phang vehicle was negligent, the Court cannot conclude that his conduct was a proximate cause of the accident.
12. Contributory negligence.
A. Mr. Phang.
Defendants contend Mr. Phang was negligent, and that his negligence was a proximate cause of his damages. Specifically, Defendants claim that Mr. Phang was negligent in causing the first accident with the third party truck driver and/or standing in the left lane of the interstate behind his stalled vehicle to wave traffic into the right lane.
With regard to the first accident, Defendants state "[a]rguably, that contact [between vehicles] had to have been caused by either Plaintiff or the other driver and its is reasonable to conclude that one or both must have been negligent." (Dkt. #36, p. 6). Again, the mere occurrence of a collision is not evidence of negligence, and the Court cannot simply assume that Mr. Phang negligently caused the first accident. Mr. Phang was the only eyewitness to that accident, and he testified that he did not do anything to cause the accident. (Tr. 494-495). There is no other evidence about the first accident, and the Court cannot possibly make a finding of negligence without some facts to support such a finding.
With regard to Mr. Phang standing behind his vehicle to warn oncoming traffic, Defendants state that "[w]hile Mr. Phang's intentions were understandable, his actions were not prudent." (Dkt. #36, p. 6). Under Texas law, there is no presumption that an injured person is guilty of contributory or comparative negligence merely because an accident happened. On the contrary, it will be presumed that the injured person was exercising due care for his or her own safety when the accident occurred. Bodine, 520 S.W.2d at 413. Likewise, contributory negligence is not established by evidence which is equally consistent with the exercise of care by the plaintiff, or where the inference of due care is just as reasonable as the inference of the absence thereof Mobil Oil Co. v. Dodd, 528 S.W.2d 297, 301 (Tex.Civ.App.-Corpus Christi 1975, writ ref d n.r.e.); Dewhurst v. South Texas Rendering Co., 232 S.W.2d 135, 137 (Tex.Civ.App.-San Antonio 1950, writ ref'd n.r.e.). In this case, Mr. Phang was faced with a very difficult situation, and was he was trying to avoid another collision (and protect his wife, his vehicle and other drivers) by standing behind his car and waving traffic around it. Dr. Thornhill testified that Mr. Phang was prudent in warning oncoming traffic, and Dr. McDonald did not find fault in Mr. Phang's actions. (Tr. 248, 254-255, 388, 598). Lt. John Wommack, the police officer who investigated the accident, testified that "he probably made the best judgment he could at the moment." (Tr. 425-426). Considering the circumstances, the Court cannot conclude that Mr. Phang failed to act in a reasonable and prudent manner. Some persons of ordinary prudence probably would have done something different, but others would have done the same thing. His actions were not negligent.
B. Mrs. Huynh.
Defendants contend that Mrs. Huynh's injuries, which resulted in her death, were proximately caused by her own negligence in remaining in the Mitsubishi after it stalled on the interstate. Again, when the inference of due care is just as reasonable as the inference of lack of due care, the Court cannot conclude that an injured or deceased plaintiff was negligent at the time of the accident.
Mrs. Huynh was sitting inside a car which had just been struck by an 18-wheeler on a busy interstate under construction. Understandably, she was shaking and crying. Mr. Phang did not believe she was injured and asked her to exit the vehicle. However, Mrs. Huynh was free to exercise her own independent judgment, and she chose to stay in the car. As noted by Lt. Wommack, she "probably made the best call she could at the time." (Tr. 427).
While some persons would have exited the vehicle under the same or similar circumstances, others would have remained in the vehicle. Officer Eric Cuellar, who responded to the accident, testified that he would personally get out of the car, based on his experience; however, "that is not what everybody does." (Tr. 68). Lt. Wommack has 26 years experience investigating accidents, and testified that he sees people remain in their vehicle under similar circumstances, and such conduct is reasonable. (Tr. 426-427). Dr. Thornhill testified that Mrs. Huynh's actions were reasonable, and any ordinary person may have done the same thing. (Tr. 249, 251, 253-255). Dr. McDonald testified that it would have been reasonable to exit the vehicle; however, he never stated that it was unreasonable to remain in the vehicle. (Tr. 585).
Defendants rely on cases involving passengers found to be negligent for remaining in a vehicle after they had an opportunity to exit the vehicle. However, those cases are distinguishable because those passengers were in a situation which they knew to be dangerous and presumably had a safe place to exit the vehicle without endangering themselves. See Webb v. Karsten, 308 S.W.2d 114, 120 (Tex.Civ.App. — Houston 1957, no writ) (teenagers were speeding in a residential district); see also Schiller v. Rice, 246 S.W.2d 607, 615 (Tex. 1952) (driver and passengers stopped at several night clubs for drinks, and the driver became intoxicated). In this case, Mrs. Huynh was not in a safe place for exiting the vehicle. She was in the passenger seat of a car stalled on the left lane of a very busy interstate, which was under construction with concrete barriers on each side. She was forced to decide whether it was safer inside the vehicle — with her husband waving traffic around the vehicle, or outside the vehicle on an interstate with passing 18-wheelers and no shoulders. Under such circumstances, an ordinary person such as Mrs. Huynh may have felt safer in the car, especially when her husband was successfully waving traffic around the car. Because many persons under the same or similar circumstances would have made the same decision, the Court cannot conclude that Mrs. Huynh was negligent for remaining in the car.
13. Damages.
Texas law governs the measure of damages in this case. The Court has based its award on the evidence presented at trial, and it has also looked to Texas and Fifth Circuit cases involving wrongful death and survival damages.
A. Personal injury damages.
Mr. Phang seeks damages for his own personal injuries caused by Mr. Babcock's truck brushing by him. Defendants attempted to raise doubt as to whether there was physical contact between Mr. Phang and the 18-wheeler. However, Mr. Phang was the only person who had personal knowledge of whether he actually made contact with the 18-wheeler and he unequivocally testified that the truck struck him. (Tr. 457, 490). It is undisputed that Mr. Phang sustained injury to his right side and received medical treatment after the accident. (P Exh. P-3). There is sufficient evidence to find that Mr. Phang sustained injuries as the result of Mr. Babcock's 18-wheeler striking or brushing by him, and the following damages are awarded:
1. Medical expenses in the amount of $11,252.25; and
2. Physical pain and suffering in the amount of $2,000.00.
B. Bystander damages.
Mr. Phang was also a bystander and witnessed the fatal collision which resulted in his wife's death. To recover as a bystander, the plaintiff must establish: (1) the plaintiff was located near the scene of the accident, as contrasted with one who was a distance away from it; (2) the plaintiff suffered shock as a result of a direct emotional impact upon the plaintiff from a sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. United Serv's. Auto. Ass'n v. Keith, 970 S.W.2d 540, 541-42 (Tex. 1998) (per curiam). The evidence clearly shows that Mr. Phang is a bystander under this definition, and the shock that Mr. Phang suffered at the time of the accident was obvious. However, as discussed below, Mr. Phang is also entitled to mental anguish damages under his wrongful death claim and he cannot recover twice. Christian v. Charter Oak Fire Ins. Co., 847 S.W.2d 458, 460-461 (Tex.App.-Tyler writ denied) (the recovery of mental anguish damages is limited to the injury, not the number of theories available to recover damages for the injury). Therefore, the Court has not segregated the mental anguish that he suffered as a bystander from the mental anguish that he suffered as a result of his wife's death.
C. Property damages.
The evidence clearly shows that Mr. Phang's vehicle was a total loss. The parties stipulated to the amount of this loss, and Mr. Phang is entitled to the amount of $4,500.00 for property damage to his vehicle.
D. Wrongful death damages.
Plaintiffs are entitled to damages arising from the wrongful death of Mrs. Huynh as follows:
1. Pecuniary loss:
Mr. Phang, Phu Phang and Qui Phang are each entitled to recover damages for the loss of the care, maintenance, support, services, advice, counsel and reasonable contributions of a pecuniary value that, in reasonable probability, they would have received from Mrs. Huynh had she lived. Dr. Carl Hubbard testified on this subject, and opined that the present value of Mrs. Huynh's loss of earning capacity, based on her expected work life, is $91,089.00. (Tr. 399; P Exh. 17-A). He further testified that loss of household services would have a present value of $194,116.00, based on an average of 25 hours per week at $10.00 per hour. (Tr. 400-401; P Exh. 17-A). Mr. Phang and both children testified that Mrs. Huyhn was primarily responsible for the care of the children and the household chores, including the laundry, cooking and cleaning. (Tr. 461-463, 473, 504-508, 517-520). Since her death, Mr. Phang is solely responsible for the children and the household chores, although the children must help with the chores when Mr. Phang is working. (Tr. 507). As a working wife and mother of two children, it is likely that Mrs. Huynh worked even harder at home than she did at her job as an assembler of computer parts, and there is no doubt that she devoted at least 25 hours each week to household services. The hourly rate used in Dr. Hubbard's calculations is very conservative and certainly reasonable. After adding the loss of earning capacity and the loss of household services, and apportioning the total sum between Plaintiffs, the Court distributes the total sum of pecuniary loss to each Plaintiff as follows:
Although Dr. Hubbard calculated losses through the end of Mr. Phang's life expectancy in 18 years, the children would have also benefitted from their mother's earnings and household services during the next 6-7 years before they graduate and leave home. Therefore, the Court apportioned the total amount between the Plaintiff's, awarding 2/3 to Mr. Phang and 1/3 to the children, divided equally between them.
a. Ban Chan Phang: $190,136.00;
b. Phu Minh Phang: $47,534.50;
c. Qui Buu Phang: $47,534.50.
2. Loss of companionship and society:
Mr. Phang, Phu Phang and Qui Phang are each entitled to recover damages for the loss of the positive benefits flowing from the love, comfort, companionship and society that, in reasonable probability, they would have received from Mrs. Huynh had she lived. This element is particularly difficult to assess because the love, comfort, companionship and society that a wife and mother provides is not measurable in money.
As noted above, Mr. Phang and his wife left their friends and relatives and came to this country seeking a better life for themselves and their children. They had no other family to lean on, and relied solely on each other for care, advice, comfort and companionship. The love and advice of a wife and mother is never replaceable; however, some families have relatives to help them through difficult times after a loved one is gone. In this case, the Plaintiffs have no other family in this country, and they cannot turn to a sister, brother, aunt, uncle or grandparent for assistance or advice.
When she was alive, Mrs. Huynh helped the children in their daily routines, from the time they woke up in the morning until they went to bed at night. She took care of them when they were sick; she helped them with their homework; she helped teach them the Vietnamese and Chinese languages; she went to temple with them every Sunday and taught them to pray; she took them shopping to buy their clothes; she went to parks with them for family entertainment; she disciplined them and taught them to be honest; and, she loved and nurtured them from the time they were newborns until the time she died. Mr. Phang testified that "the children were closer to their mother than to me." (Tr. 462). Phu Phang stated, "I think of her every day . . . [s]he mean the world to me because when I around her like she took care of us, she help us and she love us." (Tr. 504). Although soft-spoken and less able to express her feelings, Qui Phang appeared to have suffered the most as the result of her mother's death. She stated that her mother would be the one that she could talk to the most, and her mother would cheer her up when she was sad (Tr. 521-524).
The tremendous loss of love and companionship which Mr. Phang suffers as a husband is also painfully obvious. It appears that Mr. Phang and his wife did virtually everything together. They met and married in South Vietnam, and they both spoke Vietnamese and Chinese. When they came to this country, they came together. They lived with two children in a small, two-bedroom apartment. Because they had no extended family in this country, they relied solely on each other for advice and guidance. She did not drive, so he took her everywhere she need to go. They worked in the same occupation at the same place, and rode to work together. They disciplined the children together, and went on family outings together. They both took the children to temple on Sunday, and prayed together. Mr. Phang testified that "the most important person in my life" is gone. He is lonely without her companionship, and will be alone when the children leave home. He stated that "I love my mother and my father but my wife was [the one] I loved the most." (Tr. 465-467).
Having considered the evidence, the Court awards the following amounts of damages to each Plaintiff for the loss of the positive benefits flowing from the love, comfort, companionship and society that, in reasonable probability, they would have received from Mrs. Huynh had she lived:
a. Ban Chan Phang: $750,000.00;
b. Phu Minh Phang: $800,000.00;
c. Qui Buu Phang: $925,000.00.
3. Mental anguish:
Mr. Phang, Phu Phang and Qui Phang are also entitled to recover damages for the emotional pain, torment and suffering experienced as a result of the death of Mrs. Huynh. Although Mr. Phang had to speak through an interpreter, the tremendous grief that Mr. Phang has suffered, and continues to suffer, was apparent from his testimony and demeanor. He has lost his wife and best friend, and his life has been shattered. He must struggle with his own pain and loneliness while trying to ensure that his children's needs are met. (Tr. 465-467). The children have also suffered a profound loss. Mr. Phang stated that they are sad, but try to hide their crying. (Tr. 467; 508-509). Phu Phang stated that he thinks of his mother every day, and it bothers him that she will not be there to share important milestones in his life. (Tr. 504, 510). Qui still longs for her mother's nurturing when she is troubled. (Tr. 508). She does not have anyone to talk with about things that she discussed with her mother. (Tr. 508, 518, 520-21). For the emotional pain, torment and suffering experienced as a result of the death of Mrs. Huynh, the Court awards the following damages:
a. Ban Chan Phang: $450,000.00;
b. Phu Minh Phang: $350,000.00;
c. Qui Buu Phang: $550,000.00.
E. Survival damages.
The Estate of Muoi Xu Huynh is also awarded the following survival damages:
1. Medical expenses: the parties have stipulated that Mrs. Huynh's reasonable and necessary medical expenses total $37,910.66.
2. Funeral/burial expenses: the parites have stupulated that funeral expenses of $3,924.57 are reasonable and necessary.
3. Conscious pain and suffering: The evidence shows that Mrs. Huynh was, in fact, conscious after the accident for a short period of time. Immediately after impact, Mr. Phang go up and went to his car to find his wife. She opened her eyes, held his hand and wanted to talk, but was unable. (Tr. 457-458). Officer Cuellar, who responded to the accident, also testified that Mrs. Huynh was conscious when he arrived and went to the car. Her eyes were partially open, but he could not recall whether she was able to talk. (Tr. 57-58). The EMS arrived shortly therafter, and Mrs. Huynh lost consciousness, as reflected in their records. (D Exh. D-8). Although Mrs. Huynh was conscious only for a matter of minutes, she obviously suffered tremendous pain. Her injuries were serious and extensive and her death was imminent. Under these circumstances, and award of damages for conscious pain and suffering is appropriate, and the Court awards the amount of $300,000.00.
In sum Plaintiffs Ban Chan Phang, Phu Minh Phang, Qui Buu Phang and the Estate of Muoi Xu Huynh shall recover the total amount of FOUR MILLION FOUR HUNDRED SIXTY-NINE THOUSAND SEVEN HUNDRED NINETY-TWO AND 48/100 ($4,469.792.48) DOLLARS from Defendants Larry Alan Babcock and Verspeeten Cartage Limited as damages incurred herein.
14. Ad Litem fees, interest and costs:
The Court further find that Defendants shall pay reasonable and necessary fees of the attorney ad litem, who has been appointed to represent the interest of the children. Defendants shall also pay taxable court costs, pre-judgment interest to be calculated upon entry of judgment, and post-judgment interest at a rate to be determined upon entry of judgement.
Within ten (10) days from the date below, the parties shall file an advisory to the Court. If the parties have reached a settlement agreement, they shall notify the Court in the advisory and file the appropriate dismissal papers within thirty (30) days from the date below. If they do not reach a settlement agreement within ten (10) days from the date below, the parties shall file an advisory containing their calculation of prejudgment interest.
The Court shall enter a separate order regarding attorney ad litem fees within fifteen (15) days from the date below.