Appellees’ Brief

Trejo v. Loya, et. al.

Description: This brief was filed in the Dallas Court of Appeals in response to an appellate brief filed by the Defendants at trial.  The Defendants were appealing a $1.2M verdict obtained by Heygood, Orr & Pearson against a property owner and property manager for the death of a young girl struck and killed by a pickup truck while crossing an apartment parking lot.  The issues in the appeal included issues of negligence, causation, respondeat superior liability, the existence of duties to licensees and invitees, allocation of liability, joint and several liability and the allegedly improper admission of evidence. This brief was filed by Heygood, Orr & Pearson on behalf of their client.

No. 05-11-00194-CV

IN THE COURT OF APPEALS FOR THE

FIFTH JUDICIAL DISTRICT OF TEXAS AT DALLAS

____________________

MARY ANN LOYA, PREMIER PROPERTY MANAGEMENT, L.L.C.,

S2S CROSBY CREEK ASSOCIATES, L.P. and

MS THE TRAILS ASSOCIATES, L.P.,

Appellants

v.

WILBERTO and ENNY TREJO,

Appellees

__________________________________________________________________

On Appeal from the 298th Judicial District Court

Dallas County, Texas

Cause No. DC-07-06202-M

(Honorable Emily Tobolowsky)

__________________________________________________________________

APPELLEES’ BRIEF

__________________________________________________________________

ISSUES PRESENTED

  1. Whether there was legally and factually sufficient evidence of Loya’s negligence and its proximate cause of the collision.
  2. Whether Appellants owed a duty to persons such as Sheyla Trejo.
  3. Whether there was legally and factually sufficient evidence that the acts or omissions of Premier and the property owners proximately caused the collision.
  4. Whether there was legally and factually sufficient evidence of Premier’s liability under a respondent superior theory.
  5. Whether the jury’s failure to find Maria Trejo negligent was against the great weight and preponderance of the evidence.
  6. Whether the jury’s allocation of liability was supported by the evidence.
  7. Whether the admission of photographs of adjacent properties that was cumulative of admissible witness testimony amounted to reversible error.
  8. Whether a defendant found jointly and severally liable under Chapter 33 of the Texas Civil Practice and Remedies Code is jointly and severally liable for all damages, including those attributable to a responsible third party.

 

STATEMENT OF FACTS

Sheyla Trejo was four years old when she was struck and killed by a pickup truck driven by Mary Loya while Sheyla was crossing the parking lot of the Crosby Creek Apartments in Carrollton, Texas.  PX 2.  Sheyla had been staying at the apartment of her aunt, Maria Trejo, while her father was at work and her mother was at the hospital.  RR 3:63-64.  Sheyla was being watched by her other aunt, Vilma Rivas, while Maria Trejo went to work.  RR 3:64.  Sheyla’s teenage cousins, Carolina and Ines, were also at home that day since it was Spring Break and they were off of school.  RR 3:42-43, 64.

Mary Loya worked as a housekeeper at Crosby Creek Apartments, where she also lived.  RR 3:111, 174-75.  She was an employee of Premier Property Management, L.L.C. (“Premier”), a property management company that managed the Crosby Creek Apartments.  Id.; Appendix A at 98.  The Crosby Creek Apartments were owned by S2S Crosby Creek Associates, L.P. (“S2S”) and MS The Trails Associates, L.P. (“MS The Trails”).  RR 4:49-51.  Sondra Hernandez was the on-site property manager for Premier.  RR 3:111-12.  She was 26 years old, had no college degree, no property management certification and no training at all in property management.  RR 3:112-13.

At around 3:00 p.m. on March 16, 2007, Sondra Hernandez told Faustino Florentino, a “make-ready” man who handled repairs at Crosby Creek as an employee of Premier, that he needed to get a “roto-rooter” machine from another property so he could use it to unclog a toilet at one of the apartments at Crosby Creek.  RR 3:116-17, 161, 164-65, 189-90.  The clogged toilet was an “emergency” and needed immediate attention.  RR 3:164.  The only Premier employees at Crosby Creek were Hernandez, Florentino and Loya.  RR 3:165.  Hernandez admitted that Florentino specifically needed a truck to haul the roto-rooter because of its size.  RR 3:117.   Hernandez knew that Florentino had no truck and no other way to haul the roto-rooter on his own.  RR 3:191.  Hernandez also knew that Loya had a truck and had used it before in her job.   RR 3:114-15, 117, 184, 190-91.  As Appellants admit, “Loya’s was the only truck available.”  Appellants’ Brief at 22; RR 3:165.

Loya testified that prior to March 16, 2007, she had previously driven Florentino in her truck as part of his job.  RR 3:181-83.  No one ever told Loya she could not drive her truck as part of her job or to help her fellow Premier employees do their job.  RR 3:115, 117, 184; Appendix A at 23, 24, 144.  In fact, she was expected to help her fellow employees if they needed help with their jobs.  RR 3:117.  There were no rules or regulations prohibiting Loya from using her truck.  Appendix A at 46-47, 144.

Sometime around 3:30 p.m., Florentino asked Loya to drive him to get the roto-rooter machine and she agreed.  RR 3:163-64.  The only time records produced by Premier indicate that Loya worked from 8:00 to 12:00 and 1:00 to 5:00 that day.  RR 3:122-23; Appendix A at 29-31, 37-38; PX3.  After picking up the roto-rooter machine and dropping Florentino back at Crosby Creek, Loya was driving through the apartment parking lot toward the office.  PX1; RR 3:197, 199-200.

The apartments at Crosby Creek were very close to the parking lot.  RR 3:186; RR 4:23-24.  There was no play area for the many children that lived there; in fact, the complex was “mostly parking lot.”  RR 3:126; RR 4:20.  As a result, children were known to play in and around the parking lot and the surrounding sidewalks.  RR 3:42, 184-88; Appendix A at 87-88.  The parking lots at Crosby Creek had no speed bumps, no speed limit signs and no “children at play” signs.  RR 3:128, 188; Appendix A at 14-16.  There was no speed limit at Crosby Creek.  RR 3:125, 127, 128; Appendix A at 57-58.

At around 3:30 p.m., Carolina Trejo returned to her mother’s apartment from work.  RR 3:65.  She was going to get her mother and drive to the hospital to pick up Enny Trejo, Sheyla’s mother.  RR 3:66.  When Carolina entered the apartment, Sheyla was eating lunch at the kitchen table with Vilma Rivas and Maria Trejo, her adult aunts. RR 3:66-67; RR 5:76.  After a few minutes, Vilma got up from the table to breast-feed her baby.  RR 3:68.  Later, Maria got up from the table to change out of her work clothes before leaving for the hospital.  RR 3:68.  Carolina told her mother she would wait for her in the car and left the apartment, closing the door behind her.  RR 3:69.  A few seconds later, Maria heard the door open again.  Seconds later, she heard screams from outside and ran from the apartment to see what had happened.  RR 3:69-70.  She saw Sheyla lying on the ground several feet behind Loya’s pickup truck in a pool of blood. RR 3:70-71.  By the time she got to Sheyla, she was dead.  RR 3:71.

At trial, Mary Loya testified that she never saw Sheyla before striking her with her pickup truck.  RR 3:212-15.  She testified that moments before the collision, she heard people outside talking and looked up and to the right toward the people, taking her eyes off the road.  RR 3:201-05.  Seconds later, she felt a bump and applied her brakes.  RR 3:206.  The bump was Loya running over Sheyla Trejo.  RR 3:206.  By the time she stopped her truck, she had hit Sheyla, knocked her down and run over her with her rear wheels, crushing her and causing her death.  RR 3:206; RR 4:144; RR 4:148-50; PX2.  Her truck stopped some 20 feet past where Sheyla lie in a pool of blood.  RR 4:144, 147.

At trial, Appellees called a property management expert, Robert Miller, who  testified that the standard of care for an apartment complex like Crosby Creek required the complex to have speed bumps and a posted speed limit of 5 miles per hour.  RR 4:17-24.  He testified that Crosby Creek, which had no speed limit, no speed bumps and no warning signs, posed an unreasonable risk of harm to pedestrians like Sheyla Trejo.  RR 4:26.  By contrast, Appellants had no property management expert.  Instead they called accident reconstructionist Hal Watson to testify that speed bumps are “rarely used” in apartment complexes.  RR 4:93-94.   Watson was cross-examined with photos taken of three apartment complexes immediately adjacent to Crosby Creek.  RR 4:94-96; PX 40.  Those photos were produced before trial, were not relied upon by Plaintiff’s expert witnesses and were cumulative of the testimony of Maria Trejo, who testified she had visited the adjacent complexes and was familiar with their parking lots.  RR 3:43-45, 57, 58.  Those photos showed that of the three apartment complexes adjacent to Crosby Creek, three had speed bumps, two had posted speed limits and one had warnings signs.  RR 3:59-63; PX40.  Crosby Creek had none of these safety measures. RR 3:128, 188.

During trial, Hal Watson testified Mary Loya had been traveling between 7 mph and 10 mph at the time of the collision.  RR 4:68, 73, 77.  All of his calculations, however, had been performed using a distance from point of impact to point of rest of Loya’s truck of 18 feet.  RR 4:70-71, 107-08.  During cross-examination, Watson admitted that the 18 foot distance was not accurate and had been based on the mistaken assumption that Sheyla was struck at a point about three feet behind Loya’s truck where there was a pool of blood.  RR 4:109-111, 117; PX20.  That point, however, was simply where Sheyla’s body came to rest and did not account for the distance she would have been propelled by the force of the impact.  RR 4:115-117; RR 5:17-18; PX2.  More importantly, it ignored the fact that Sheyla entered the parking lot between a white Ford Taurus and a dark green Toyota SUV after taking a straight path from the apartment.  RR 3:69, 70, 108, 109; RR 4:108-09, 112, 164; PX20.  The pool of blood, by contrast, was some eleven feet further down the parking lot on a straight line from between the white Ford Taurus and a light brown SUV parked on the other side of the Taurusl.  RR 4:112-13; PX20.  Correcting for the mistaken point of impact, Hal Watson agreed that the distance from point of impact to point of rest of the truck was closer to 31 feet – not the 18 feet he had used or the 16 feet Carrollton police officer Ron McCraw had used.

RR4: 113-15, 132, 164-65.  When this mistake was corrected, Watson agreed that Loya was driving faster than 11 mph at the time of the collision and as fast as 16 mph if he used a lower perception/reaction time.  RR4:129-136, 142, 143-150; PX63.

The jury deliberated for several hours over a two-day period and returned a verdict for the Appellees in the approximate amount of $1 million.  They assessed liability 5% to Loya, 5% to Maria Trejo, 30% to the apartment owners and 60% to Premier Property Management.  CR 247-58.  The Trial Court entered a judgment consistent with the verdict.  CR 259-62.  Appellants filed a Motion for New Trial and a Motion for J.N.O.V., both of which were denied.  CR 290-93.  This appeal then ensued.  CR 294.


 

SUMMARY OF THE ARGUMENT

The jury had ample evidence to support their conclusion that Mary Loya was negligent by, among other things, driving too fast, failing to keep a proper lookout, failing to perceive Sheyla until she had struck and killed her and looking away from the roadway immediately before the collision.  Loya was aware that children often played in and around the parking lot at Crosby Creek and yet she was traveling at least 11 mph —  a speed she testified was “too fast” — and failing to keep a proper lookout at the time of the collision. Had she been driving slower and paying attention, she could have avoided the collision.

Appellants Premier, S2S and MS The Trails owed Sheyla Trejo a duty as an invitee to make their premises safe and warn of any condition that made the premises unreasonably dangerous.  The alleged knowledge of the condition of the parking lot by Sheyla’s “caretakers” had no bearing on Appellants’ duty but was relevant only to their alleged contributory negligence.  The jury properly determined that Appellants’ duty to make their premises safe encompassed the installation of speed bumps, speed limit signs and/or warning signs and this conclusion was supported by the uncontroverted testimony of Appellees’ property management expert.

There was legally and factually sufficient evidence that the acts or omissions of Premier, S2S and Ms The Trails proximately caused the accident.  The evidence supported the conclusion that Loya was driving at least 11 mph at the time of the collision and not paying attention.  Adherence to a 5 mph speed limit would have avoided the accident entirely.  And the presence of speed bumps and warning signs would have both physically slowed down Loya’s truck and provided her a reminder of the presence of young children in the parking lot.  Lastly a pedestrian/vehicle collision in the busy parking lot of Crosby Creek was entirely foreseeable.

There was legally and factually sufficient evidence of Premier’s liability under a respondeat superior theory.  The facts showed that Loya’s driving Florentino to pick up a roto-rooter machine was within the scope of her general authority, in furtherance of Premier’s business and for the accomplishment of the objective for which she was hired, which included helping her co-workers.   Moreover, there was a fact question as to whether Loya was still on the clock at the time of the collision.  And even if she was not, the evidence supported a finding that she was on a “special mission” such that Premier was liable for her actions.

The jury’s assessment of liability and its failure to find Maria Trejo negligent were supported by the evidence.  While Sheyla was staying at Maria’s apartment, her aunt, Vilma Rivas, was babysitting her.  As for the assessment of liability, it was supported by the evidence and a jury’s allocation of liability should not be disturbed on appeal.

The admission of photographs of adjacent properties did not constitute reversible error.  The Trial Court properly found that Appellees  had  good cause for their inadvertent failure to produce the photos until one week before trial and that the  photos did not unfairly surprise or prejudice Appellants.  Even if admission of the photos was error, such error was harmless since the photos were cumulative of the testimony of Maria Trejo regarding the condition of the adjacent properties in March 2007.

Lastly, under Chapter 33 of the Texas Civil Practice and Remedies Code, Premier was properly held jointly and severally liable for the damages attributable to Vilma Rivas because the jury assessed 60% of the responsibility to Premier.  The plain language of the statute and the applicable case law supports joint and several liability under these facts.

ARGUMENT AND AUTHORITIES

  1. I. There was legally and factually sufficient evidence of Mary Loya’s negligence and its proximate cause of the collision.

 

Appellants’ first argument is that the Trial Court erred in denying their Motion for J.N.O.V. and Motion for New Trial because there was legal and factually insufficient evidence that Mary Loya was negligent and that her negligence proximately caused the fatal collision between her truck and Sheyla Trejo.  Their argument, however, is based on a distortion of the record that ignores basic facts adduced at trial and reaches conclusions at odds with the uncontroverted evidence.  When all of the evidence is examined, it is apparent that the jury had much more than a scintilla of evidence to support their conclusion that Mary Loya was negligent by, among other things, driving too fast, failing to keep a proper lookout, failing to perceive Sheyla until she had struck and killed her and looking away from the roadway immediately before the collision.  Among the uncontroverted evidence supporting the jury’s verdict is the following:

●         Many families and children lived at Crosby Creek apartments;

 

●         Mary Loya lived and worked at the Crosby Creek apartments – she was familiar with the fact that the residents were mostly families with young children;

 

●         Crosby Creek was “mostly parking lot” and lacked any playground or play area for the many children that lived there;

●         As a result, children were known to play in and around the parking lot and the surrounding sidewalks;

 

●         Mary Loya testified that she saw children riding their bikes and playing in the parking lot frequently;

 

●         Mary Loya testified that two children crossed her path by walking across the parking lot  in front of her truck in the seconds before the collision;

 

●         Mary Loya testified that she took her eyes off the road before running over Sheyla Trejo because she heard some people talking to her right;

 

●         Mary Loya testified that she “never saw Sheyla” – the first time she saw her was after she “felt a bump;”

 

●         Robert Miller, Appellees’ property management expert, testified that Crosby Creek should have had a posted speed limit of 5 mph;

 

●         Mary Loya testified that she was “driving too fast” if she was going over 10 mph in the parking lot;

 

●         Hal Watson, Appellants’ own expert, agreed that if Sheyla Trejo took a straight path across the parking lot, the point of impact to point of rest of Loya’s truck was 31 feet, not the 18 feet he used to calculate speed.

 

●         Based on this corrected measurement of 31 feet, Watson agreed that:

 

●         Mary Loya was driving over 11 mph at the time of the collision;

 

●         If Loya had been driving 10 mph or less, she would not have run over Sheyla Trejo with her rear tires, killing her.

 

RR 3:42, 69, 70, 108, 109, 111, 112, 126, 174-75, 184, 186, 188; RR4:20, 23, 24, 113-115, 129-134, 136, 142, 143-150, 164-65; PX2; PX4; PX20; PX63, PX64,PX 65.

All of these facts raised questions for the jury as to whether Loya was negligent in driving too fast, not keeping a proper lookout and not keeping her eyes on road.  All of these facts supported the conclusion that had Loya been driving 10 mph or less, the accident would have been avoided or, at a minimum, Sheyla Trejo would not have been killed.  All of these facts supported the jury’s verdict finding that Loya was negligent and that her negligence proximately caused Sheyla Trejo’s untimely death.

  1. A. The jury’s finding that Loya was negligent and that her negligence proximately caused the collision was supported by evidence that Mary Loya was traveling more than 10 mph at the time of the collision, a speed she admitted would have been “too fast” for the busy parking lot at the Crosby Creek Apartments.

 

In their Brief, Appellants question the jury’s verdict by noting that police officer Ron McCraw testified that he did not have all of the information he needed to determine whether the collision could have been avoided.  Appellants’ Brief at 8-9.  But this fact misses the point and is misleading given the facts of the case.  Officer McCraw admitted that he did not conduct an accident investigation.  RR 5:12.  He admitted that he did not even conduct the lesser investigation known as “crash reporting.”  Id. As a result, he never even sought to determine Loya’s speed, her braking distance, her perception/reaction time or the distance from the point of impact to point of rest of her truck.  RR 5:13-15, 17, 18, 20.  He stated that in order to determine whether the accident was avoidable, he would need such information. RR 5:30-32, 36, 37, 43-45; PX 70.

Unlike Officer McCraw, Appellees’ expert, Hal Watson, testified that he was able to determine whether the accident was avoidable.  RR 4:77.  He testified that he was able to determine Mary Loya’s speed.  RR 4:68, 73.  He rendered an opinion regarding the proper perception/reaction time to use.  RR: 127-28.  He calculated braking distance.  RR 4:70.  And he calculated (albeit erroneously) the point of impact to point of rest of Loya’s truck.  RR 4:72-73, 108.  Using this data and a standard formula for determining speed, Watson initially calculated Loya’s speed at somewhere between 7 and 10 mph.  RR 4:107-08.  Watson later admitted, however, that he had used the wrong distance for the point of impact to point of rest.  Correcting for this mistake, even Watson admitted that Mary Loya was likely driving over 11 mph at the time of the collision, a speed Loya herself admitted would have been “too fast.”  RR 3:208; RR 4:129-131, 136; PX63.

  1. 1. Appellants’ own expert agreed that the most reasonable inference from the uncontroverted facts was that Sheyla Trejo entered the parking lot between a white Ford Taurus and a dark green Toyota SUV and walked in a straight path before being hit by Loya’s truck.

 

Appellants argue that “any conclusion about where Sheyla entered the parking lot could only have been based on surmise and suspicion.”  Appellants’ Brief at 13.  This is simply false.  The circumstantial evidence clearly supported the conclusion that Sheyla came out of Maria Trejo’s apartment door and ran straight between a white Ford Taurus and a dark green Toyota SUV, following the same path her cousin had just taken.  PX 20 (with illustrations added).  Among the circumstantial evidence supporting this conclusion was the following:

●         A straight path from the front door of the apartment where Sheyla was staying would go between the white Taurus and the green Toyota SUV;

 

●         Sheyla followed her cousin, Carolina, who walked between the white Taurus and the dark green Toyota SUV, out of the apartment;

 

●         The shortest path for Sheyla from the apartment door to where her cousin Carolina had stopped on the far side of the parking lot would be between the white Taurus and the dark green Toyota SUV; and

 

●         A path between the white Taurus and the dark green Toyota SUV would account for the fact that Sheyla was thrown forward by the collision before coming to rest in a pool of blood.

 

PX20; RR 4:108-09; RR 4:109; RR 4:115-117; RR 5:17-18; PX2; Appellants’ Brief at 10 (“it appears that the more direct path from the front door of Maria’s apartment to the driveway would have been between the Ford Taurus and a Toyota 4Runner SUV”).

The jury was properly instructed that any fact could be established by either direct or circumstantial evidence.  CR 248; see also Prudential Ins. Co. v. Krayer, 366 S.W.2d 779, 780 (Tex. 1963) (“an ultimate fact may be conclusively shown by wholly circumstantial evidence.”).  Based on the circumstantial evidence laid out above, Appellants’ own expert testified:

Q.        Now, in your deposition testimony, and in your testimony here a moment ago with Mr. Miller, you agree that Sheyla Trejo came out from between this white Taurus and this dark-colored Toyota 4Runner, correct?

 

A.        That seems the most logical.

 

RR 4:108-09.  And Watson’s calculations were based on the presumption that Sheyla ran in a straight path from the apartment before being hit by Mary Loya’s pickup truck.  RR 4:69, 70, 108, 109, 112, 114, 155, 164, 169; Appellants’ Brief at 12 (“Watson used a 50th percentile running speed to estimate that, if Sheyla emerged from between the cars on a line perpendicular to the length of the driveway and at a straight line, she reached the impact point in slightly less than 1.5 seconds.”) (emphasis added).

  1. 2. Appellants’ own expert agreed that the most reasonable inference from the uncontroverted facts was that Sheyla Trejo was thrown after being hit by Mary Loya’s truck.

 

Appellants argue that it was speculative for the jury to conclude that Sheyla was thrown forward or dragged as a result of the collision to where she was ultimately found in a pool of blood.[1] According to Appellants, the investigating police officer concluded that “there was no ‘throw distance.”  Appellants’ Brief at 9.  This is simply false.  Officer McCraw testified that there was insufficient evidence for him to calculate the throw distance, not that he believed Sheyla was not thrown forward by the force of the collision.  RR 5:17-18.  And Hal Watson, Appellants’ own expert, agreed that the most reasonable inference from the uncontroverted facts was that Sheyla Trejo was thrown after being hit by Mary Loya’s truck.  RR 4:115-117.  In fact, he specifically added two feet to McCraw’s 16 foot number to come up with his 18 foot number in order to account for throw distance.  RR 4:110.  Subsequently, upon being shown the error in using the 16 foot figure to begin with, Watson admitted the throw distance (or drag distance) was closer to 14 feet.  RR 4:117.  He explained that “whatever the speed of the truck is, [Sheyla] is going to be propelled along the pavement at that speed.”  RR 4:115.  Appellants’ argument that any conclusion that Sheyla was thrown or dragged by the collision was speculative ignores the evidence admitted at trial and the testimony of their own expert and should be rejected.

  1. 3. Appellants’ own expert agreed that the most reasonable inference from the uncontroverted facts was that the distance from point of impact to point of rest of Loya’s truck was approximately 31 feet, not the 18 feet he originally used to calculate Loya’s speed.

 

Appellants’ own expert, Hal Watson, admitted at trial that “the most logical” conclusion from the evidence was that Sheyla Trejo followed her cousin Carolina and emerged into the Crosby Creek parking lot between a white Ford Taurus and a dark green Toyota 4Runner.  RR 4:108-09.   To calculate the distance from the point of impact to the point of rest of Mary Loya’s truck, Watson admitted that you would perform the following calculation:

●         Take the length of the truck of 17 feet;

 

●         Add three feet for the distance from the back of the truck to the pool of

blood where Sheyla was found;

 

●         Add two feet for the distance from the pool of blood to the white lines separating the parking spaces; and

 

●         Add nine feet for the width of the parking spaces.

 

RR 4:109-115.   Using this data, Watson agreed that the most reasonable inference from the uncontroverted facts was that the distance from point of impact to point of rest was approximately 31 feet (17+3+2+9), not the 16 foot distance the police hypothesized  or the 18 feet Watson originally used to calculate Loya’s speed.  RR 4:108-115.

  1. 4. Appellants’ own expert agreed that the most reasonable inference from the uncontroverted facts was that Loya was traveling greater than 11 mph at the time of the collision and possibly as fast as 16 mph.

 

Appellants’ own Brief admits that if Sheyla came into the parking lot between the white Ford Taurus and the dark green Toyota SUV — as their own expert testified was the “most logical” scenario – “Loya would have been going more than 10 m.p.h.”  Appellants’ Brief at 13.  Appellants’ expert, Hal Watson, agreed.  Using the corrected 31 foot distance from point of impact to point of rest, his proposed 1.5 second perception/reaction time and a standard speed-calculation formula, he testified that Loya was driving slightly faster than 11 mph at the time of the collision.  RR 4:129-131, 136; PX 63. [2] He also admitted that if Loya had been driving at 10 mph and had seen Sheyla when she came into plain view in the parking lot, she would not have run over Sheyla with her rear      wheels, killing her. RR 4:144-150; PX 65.

The evidence at trial also established that if Mary Loya’s perception/reaction time was .75 seconds or less, then she was going at least 16 mph at the time of the collision.  RR 4:136; PX 63.  The evidence also demonstrated that if Loya’s perception/reaction time were 1.0 seconds or less, she could have avoided the collision altogether if she had been driving 10 mph and paying attention.  RR 4:142-43; PX 64.  Appellants challenge the perception/reaction times on which these conclusions are based as speculative.  Appellants’ Brief at 12-13.  But Appellants’ expert, Hal Watson, admitted that a .75 second perception/reaction time is applicable when a driver is “on a heightened state of alert” or “expecting something.”  RR 4:133.  Although Appellants argue that “there was no evidence that any children were actually present” such that Loya should have expected a child to cross her path, Loya testified that many children lived at Crosby Creek, that she often saw children playing in and near the parking lot and that she saw children walk across the parking lot “every day.”  RR 3:184-188.  More importantly, she also testified that moments before she hit Sheyla, two young girls actually walked in front of her truck as they crossed the parking lot.  RR 3:200-201.  These facts clearly support the application of a “heightened state of alert” perception/reaction time of .75 seconds.  See, e.g., RR 5:86 (Appellees’ accident reconstruction expert, A.O. Pipkin, testified that Loya’s perception/reaction time would have been between .75 seconds and 1.0 second).  While Appellants challenge this conclusion, their own expert, Hal Watson admitted that he had no opinion as to what Loya’s actual perception/reaction time was.  RR 4:134.  Thus, the jury was free to come to their own conclusion about the appropriate perception/reaction time under the facts of this case.

Under the facts of the case, there was ample evidence to support the jury’s finding of negligence.  As for proximate cause, as stated above, Hal Watson admitted that if Loya had been traveling at 10 mph or less, that she would not have struck Sheyla with the rear wheels of her truck.  RR 4:144-149.  And the police report concluded that it was the rear wheels that crushed Sheyla’s skull, causing her death.  RR 4:149; PX2.  Watson also admitted that if Loya’s perception/reaction time was 1.0 seconds or less and she saw Sheyla when she first came into plain view, she could have avoided the collision altogether if she had been driving 10 mph or less.  RR 4:142-143; PX 64.

While Appellants claim in their Brief that “Loya would not have been able to apply her brakes in time to avoid striking [Sheyla] even if she had seen Sheyla the moment she became visible,” they fail to cite to any evidence in the record supporting this conclusion.  Appellants’ Brief at 12.  And elsewhere, again failing to cite the record, Appellants conclude that the accident was only “virtually unavoidable.”  Appellants’ Brief at 11.  More importantly, both of these conflicting assertions are refuted by the physical evidence and the testimony of Appellants’ own expert, all of which clearly supported the jury’s finding of proximate cause.[3] Here, the jury heard uncontroverted testimony that the collision could have been avoided if Loya had been driving at a safe speed and paying attention.  This testimony clearly supported a finding of proximate cause, an issue uniquely within the province of the trier of fact.  See, e.g., Craven v. Pennington, No. A14-91-01084-CV, 1992 Tex. App. LEXIS 1838 at *10 (Tex. App.—Houston [14th Dist.] July 2, 1992, writ denied) (“Proximate cause questions are particularly within the province of the fact finder and must be affirmed absent exceptional circumstances”).

  1. B. The jury’s finding that Loya was negligent and that her negligence proximately caused the collision was supported by evidence that Mary Loya took her eyes off the road immediately before she struck and killed Sheyla Trejo.

 

Mary Loya testified at trial that immediately before she struck and killed Sheyla Trejo, she looked up and away from the road when she head Jackie Banda calling out to Sheyla’s cousin.  RR 3:202-04.  But at the time of the accident, Loya never told the investigating police officer that she was distracted or heard someone yell right before the collision.  RR 5:23-24.  Rather, she simply told the officer that she never saw Sheyla before she hit her.  Id. The jury was free to reject Loya’s testimony that a conversation occurring outside her truck between two neighbors somehow distracted her.

Even if the jury accepted Loya’s testimony tat she was distracted, there was ample evidence that Loya was negligent in taking her eyes off the road while driving in a busy parking lot where children where known to play.  In fact, Appellees’ expert testified that Loya was negligent, explaining that she could have quickly glanced to the side to see who was talking without taking her eyes off the road.  RR 5:85.  The jury apparently agreed.

Appellants, however, assert that, as a matter of law, Loya did not act unreasonably by taking her eyes off the road and cite Thurmond v. Pepper, 119 S.W.3d 900 (Tex. Civ. App.—Galveston 1938, writ dism’d) for the proposition that “self-preservation is the first law of nature.”  Appellants’ Brief at 15.  But in Thurmond, the defendant truck driver saw the decedent’s vehicle approaching across the center line and took evasive action to avoid a head-on collision.  Id. at 901. The court noted that defendant was afraid that if he slammed on his brakes, he would be impaled by the load of pipes he was hauling and that the defendant’s “efforts to extricate himself from the dangers attendant upon a collision were also efforts to extricate deceased from such dangers.” Id. at 901-02.  The facts in Thurmond are obviously far afield from the facts of this case.  At no point did Mary Loya ever testify that she felt in danger or threatened by the people speaking outside her truck.  At no point did she take any action aimed at “self-preservation.”  Rather, she looked away from the road while driving too fast in a busy apartment parking lot and never saw Sheyla Trejo until she struck and killed her.

Appellants also cite the case of Hernandez v. Allen, 429 S.W.2d 643, 644 (Tex. Civ. App.—Tyler 1968, writ ref’d n.r.e.).  In that case, the defendant was driving at a proper rate of speed between two cars parked on opposite sides of the street when he heard a “sudden, unexpected, terrifying scream” from a woman who was “screaming about somebody was going to cut her throat.”  Id. at 644-45.  Under these facts, — far different than the instant case, where Jackie Banda and Carolina Trejo were merely talking — the jury found the defendant was not negligent.  Although Appellants’ Brief states that the court explained that the driver acted prudently, the court stated that the jury found that Allen had acted prudently and that the jury’ findings were not contrary to the overwhelming weight and preponderance of the evidence.  Id. at 644 (emphasis added).

Lastly, Appellants cite the case of Clodfelter v. Martin, 562 S.W.2d 491 (Tex. Civ. App.—Corpus Christ 1977, no writ) for the proposition that “a driver’s glancing at a speedometer and passenger before a collision does not compel a finding of improper lookout.”  Appellants’ Brief at 16.  Of course, Appellees are not arguing that the facts of this case “compelled” a certain result.  Rather, Appellees are merely arguing that the facts of this case supported the submission of Loya’s negligence to the jury and supported the jury’s ultimate conclusion that she was negligent.  As the court in Clodfelter recognized:

It is within the jury’s province to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in testimony of any one witness as well as testimony of different witnesses.  Further it is within the jury’s province to believe one witness and disbelieve another, or to believe part of the testimony of a witness and disbelieve any other part.  Ordinarily, proper lookout in an automobile negligence case is a question for the jury.

 

Id. at 493 (emphasis added); see also Brown v. Goldstein, 685 S.W.2d 640, 642 (Tex. 1985) (“it is unclear from the evidence if Adele was cognizant of the guardrail until after she hit it.  The Goldsteins, during oral argument, suggested that there was no causal connection between Adele’s failure to keep a proper lookout and the accident.  Although this may be true, that question is a fact issue to be decided by the jury.”).

  1. C. The jury’s finding that Loya was negligent and that her negligence proximately caused the collision was supported by evidence that Mary Loya failed to even perceive Sheyla Trejo until after she hit her.

 

Mary Loya testified at trial that immediately before she struck and killed Sheyla Trejo, she looked up and away from the road when she head people talking outside.  Specifically, she looked up and to the right where Jackie Banda was on an apartment balcony.  Appellants’ expert admitted that Sheyla Trejo would have been clearly visible for nearly fifteen feet before the collision.  RR 4:103.  He also admitted that if Mary Loya was driving 10 mph, she would have been able to see Sheyla from a distance of at least 27 feet.  RR 4:103-04.  Despite these facts, Mary Loya never saw Sheyla Trejo, who entered the parking lot to her left.  RR 3:213-15.  She testified that her first awareness of Sheyla was the “bump” from having run her over.  RR 3:206, 231.  The foregoing evidence raised an issue of fact for the jury as to whether Maria Trejo was negligent in failing to maintain a proper lookout.

Appellants respond by claiming that “physical evidence conclusively established that Loya’s field of vision was partially obstructed by a mirror and the A-pillar between the truck’s windshield and the windows.”  Appellants’ Brief at 14.  This statement, however, is a complete distortion of the trial record.  In truth, Mary Loya herself testified that nothing – including the height of her truck, the rearview mirror or the A-pillar – interfered with her ability to see Sheyla.  RR 3:212-13.  Loya similarly testified in her deposition that nothing obstructed her view of Sheyla Trejo.  RR 4:86-87, 90-91.  Confronted with this testimony, Appellants’ expert, Hal Watson, testified that he could not state for certain whether Loya’s view of Sheyla Trejo would have been blocked at all by the mirror or A-pillar.  RR 4:91.

  1. II. Appellants Premier, S2S and MS The Trails clearly owed a duty to invitees like Sheyla Trejo.

 

  1. A. Sheyla Trejo was an invitee, not a licensee.

Appellants argue that the property owners (S2S and MS The Trails) and property manager (Premier) owed no duty to Sheyla Trejo.  Their entire analysis, however, is based on the flawed assumption that Sheyla was a licensee rather than an invitee.  Appellants’ Brief at 27-29.  Under clear Texas law, however, Sheyla, as a guest of one of the apartment residents, was a licenseeSee, e.g., Dickinson Arms-REO, L.P. v. Campbell, 4 S.W.3d 333, 336 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (“the duty owed by a landlord to its tenant is the duty owed to an invitee, and this duty of the landlord extends to the tenant’s invited guests.”) (citing Parker v. Highland Park, 565 S.W.2d 512 (Tex. 1978)). [4]

Although they now argue that Sheyla was an invitee, Appellants previously agreed that Sheyla was a licensee by agreeing to submit a jury charge taken from Section 66.4 of the Texas Pattern Jury Charge that clearly reflects a licensee standard of care.  CR 250; Texas P.J.C. 66.4, Comments (“PJC 66.4 is a broad-form question that should be appropriate in most premises liability cases in which it is undisputed that the plaintiff was an invitee.”); Perez v. DNT Global Star, LLC, 339 S.W.3d 692, 699 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (noting that TPJC 66.4 provides the “question recommended for a premises liability case when the plaintiff is an invitee.”).  Having  agreed to submit the case under an invitee standard, Appellants cannot now claim that Appellees were required to offer evidence that “the licensee did not actually know about the alleged dangerous condition,” an element of a licensee’s claim.  Appellants’ Brief at 28.  See, e.g., Tribble & Stephens Co. v. Consol. Servs., Inc., 744 S.W.2d 945, 949 (Tex. App.–San Antonio 1987, writ denied) (defendant waived the right to complain on appeal that the plaintiff offered insufficient evidence of the proper measure of damages because defendant failed to object to the measure of damages submitted to the jury).

  1. B. The alleged knowledge by “Sheyla’s caretakers” of Crosby Creek’s lack of warning signs, speed limits and speed bumps did not negate Appellants’ duties.

 

Appellants also claim that they could not have owed a duty to Sheyla Trejo because Maria Trejo and Vilma Rivas were aware that Crosby Creek Apartments had no speed limit signs, speed bumps or warning signs.  Appellants’ Brief at 28-29.  This position is untenable for several reasons.  First, because “Sheyla’s caretakers” were not the claimants in this case, their alleged knowledge of the dangerous condition could not possibly affect Appellants’ duties, but would only be relevant for purposes of assessing Maria Trejo’s and Vilma Rivas’ alleged negligence.  Second, because Sheyla was a licensee, any supposed knowledge of the dangerous condition was irrelevant.  Finally, and most importantly, Appellants’ position ignores the fact that under current Texas law, a plaintiff’s knowledge of the danger goes only to their potential contributory negligence:

we have expressly abolished a “no-duty” doctrine  previously applicable to open and obvious dangers known to the invitee.  Instead, a plaintiff’s knowledge of a dangerous condition is relevant to determining his comparative negligence but does not operate as a complete bar to recovery as a matter of law by relieving the defendant of its duty to reduce or eliminate the unreasonable risk of harm.  “A plaintiff’s knowledge, whether it is derived from a warning or from the facts, even if the facts display the danger openly and obviously, is a matter that bears upon his own negligence; it should not affect the defendant’s duty.”

 

Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 773 (Tex. 2010) (citing Parker v. Highland Park, 565 S.W.2d 512 (Tex. 1978)).

  1. C. Appellants had a duty to make the premises safe by installing sped bumps, speed limit signs and warning signs.

 

Appellants were required under Texas law to make the condition of the parking lot reasonably safe.  See, e.g., Double Eagle Resorts v. Mott, 216 S.W.3d 890, 895 (Tex. App.—Beaumont 2007, no pet.).  The uncontroverted testimony of Appellees’ expert witness, Robert Miller, was that the parking lot at Crosby Creek was unreasonably dangerous because it lacked speed limit signs, warning signs and speed bumps.  RR 4:17-26.  Appellants offered no testimony to rebut these opinions.

Rather than directly challenge the legal or factual sufficiency of the evidence, Appellants contend that – as a matter of law – no duty exists to install speed bumps or other devices in a residential parking lot.  Appellants’ Brief at 29-31.   In support, Appellants cite three Georgia cases each of which applied Georgia’s “superior knowledge” requirement under which a landlord is liable only for defects of which he has knowledge and the tenant does not.  See Johnson v. Green Growth I, LLC, 699 S.E.2d 109, 111 (Ga. App. 2010) (explaining that “[i]t is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted.”); Roth v. Wu, 405 S.E.2d 741, 742 (Ga. App. 1991) (“The true ground of liability is the landowner’s superior knowledge of the perilous condition”); Commerce Properties v. Linthicum, 434 S.E.2d 769, 771 (Ga. App. 1993) (“a landlord is not liable for injuries to his tenant or to the members of the latter’s family for injuries resulting from an obvious or patent defect existing at the time of the rental agreement as to which both the landlord and the tenant had equal knowledge or equal means of knowing”).  Appellants assert that “the rationale of the Georgia courts is completely consistent with a landowner’s standard of care to a licensee in Texas.”  Appellants’ Brief at 31.  While this may be true, it is wholly irrelevant since Sheyla Trejo was an invitee, not a licensee.

Lastly, other courts have specifically held that a property owner may have a duty to install traffic control devices such as speed bumps in a parking lot.  In Jackson v. Ray Kruse Constr. Co., 708 S.W.2d 664 (Mo. 1986), parents sued when their four year old daughter was hit by a bicycle in an apartment parking lot.  The plaintiffs’ expert testified that the defendants were negligent in failing to install speed bumps.  Id. at 666.  The jury found in the plaintiffs’ favor, but the trial court set aside the verdict and the court of appeals affirmed.  The Missouri Supreme Court reversed, finding that the existence of a duty to install traffic control devices in the parking lot was a question for the jury:

With the state of the record as it is, the jury could find that the defendants had notice of a condition which required the installation of a speed bump and were negligent for failing to provide it.  It would be contrary to the course of the law for us to substitute our judgment for that of the jury . . . .

 

Id. at 667, 669.

Similarly, in Bangert v. Wal-Mart Stores, 695 N.E.2d 56 (Ill. App. 1998), a pedestrian hit by a car in a Wal-Mart parking lot brought a negligence  action claiming the store was negligent in failing to use traffic control devices such as speed bumps to make the lot safe.  The trial court granted summary judgment holding that Wal-Mart owed the pedestrian no duty.  The appellate court reversed, finding that Wal-Mart had a duty to keep the parking lot safe for use by pedestrians:

We agree with Wal-Mart and the trial court that the existence of traffic in a store’s parking lot is an obvious danger.  The proper query, however, is not whether there is an obvious danger, but whether Wal-Mart’s duty to use reasonable care with regard to its premises extends to the duty to maintain traffic- and/or pedestrian-control devices for the protection of its patrons.

 

* * * * *
Wal-Mart can still expect that its customers will exercise reasonable care for their own safety. However, there may be obvious dangers to customers that defendant has a duty to try and remedy.  Whether the condition of the parking area served as adequate notice of its danger or whether additional safety measures were necessary to satisfy Wal-Mart’s duty are questions properly left to the trier of fact.

 

Id. at 59.

Finally, in the case of Kendrick v. New Concept Housing, Inc., No. 95-1321, 1996 U.S. Dist. LEXIS 11024 at *4 (E.D. La. Aug. 1, 1996), the parents of a six year old child who  was struck by a car in apartment parking lot after emerging from between two parked cars brought suit against the owner of the apartments.  The apartment owner moved for summary judgment.  The court denied the property owner’s summary judgment motion, stating that “the determination of whether the condition of the parking lot created an unreasonably risk of harm of vehicles in the travel lanes hitting pedestrians is a question of fact for the jury.”  Id. at *4.  For all of the reasons set forth above, Appellants’ “no duty” argument should be rejected.

  1. D. The jury’s verdict was supported by expert testimony.

 

Appellants complain that Appellees’ expert offered no evidence regarding the duty of an apartment owner who hires a property manager.  Appellants’ Brief at 31, n.17; Id. at 39, n. 18.  But the negligence question in the jury charge relating to the owners, a question Appellants agreed to, focused on the condition of the premises, not the actions of the property owners.  CR 250 (emphasis original).  The jury charge thus defined the owners’ duty as being a duty to warn of or make safe any dangerous condition on the premises.  CR 250.         Appellees’ expert testified that the parking lot of the Crosby Creek Apartments posed an unreasonable risk of harm.   RR 4:26.  It was unquestioned that the owners knew or should have known of the condition of their property.  And the evidence was uncontradicted that the owners neither warned of the dangerous condition nor made it safe.  There was ample evidence of the owners’ duty and their violation of that duty.[5]

III.      There was legally and factually sufficient evidence that the acts or omissions

of Premier and the property owners proximately caused the collision.

 

A.        There was legally and factually sufficient evidence of proximate cause.

Appellants also claim that there was legally and factually insufficient evidence that any negligence of Premier or the property owners proximately caused the collision.

“When reviewing the record to determine if there is legally sufficient evidence to support the jury’s finding of causation, the court views the evidence in a light that tends to support the jury’s finding of causation and disregards all evidence and inferences to the contrary.”  Bay Rock Operating Co. v. St. Paul Surplus Lines Ins. Co., 298 S.W.3d 216, 227 (Tex. App.—San Antonio 2009, pet. denied).  When conducting a factual sufficiency review, courts are to “consider and weigh all the evidence and set aside the verdict only if the jury’s finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.”  Id.

Here, there was ample evidence at trial that the acts and omissions of Premier, S2S and MS The Trails proximately caused the collision.  Appellees’ property management expert testified that the parking lot at Crosby Creek was unreasonably dangerous.  RR 4:26.  He testified that the parking lot should have had a posted speed limit of 5 mph, speed bumps and warning signs (like those at the adjacent properties).  RR 4:17, 24-25.  Not only did Appellees present evidence that residential parking lots in general should have speed bumps, speed limits and warning signs, they offered specific evidence as to why the parking lot at Crosby Creek was particularly in need of such devices:

●         The apartments at Crosby Creek were very close to the parking lot;

 

●         There was no play area for the many children that lived there;

 

●         The complex was “mostly parking lot;”

 

●         Children were known to play in and around the parking lot and the

surrounding sidewalks;

 

●         According to the Carrolton Police Report, in the parking lot, “visibility to

the north and south are obstructed by parked vehicles.”

 

RR 3:42, 126, 184-88; RR 4:20, 23-24; Appendix A at 87-88; PX2; PX4.  None of this evidence was challenged by Appellants.

Appellees’ expert testified that speed bumps are a “deterrent” to driving too fast and that they also physically slow the speed of a vehicle.  RR 4:17, 24.  He explained that warning signs make people aware of a present danger.  RR 4:24.  Property manager Carol El-Hageibrahim testified that speed limit signs and speed bumps are intended to make sure that vehicles are not driving too fast through residential parking lots.  Appendix A at 14, 16.    And Appellees presented a scientific study showing that children who lived near a speed hump had a 53-60% reduction in the odds of being struck by a car.  RR 4:101.

Most importantly, Appellees offered substantial evidence that Mary Loya was driving at least 11 mph and perhaps as fast as 16 mph at the time of the collision.  RR4:129-131, 136; PX63.  Appellees’ property management expert testified that Crosby Creek should have had a posted speed limit of 5 mph.  RR 4:17, 24-25.  Had such a speed limit been posted, the jury was entitled to infer that Loya would have been driving 5 mph (and certainly less than 10 mph).  See, e.g., Texas Dep’t of Transp. v. Fontenot, 151 S.W.3d 753, 765 (Tex. App.—Beaumont 2004, pet. denied) (court rejected TXDOT’s argument that evidence was legally and factually insufficient to show that its failure to post a sign warning of water on the road proximately caused accident, holding that “[t]he jury could infer that Fontenot would have reacted to a warning sign by slowing down”).  Had she been driving at such a speed, Loya could have avoided the accident altogether or at least could have avoided killing Sheyla Trejo by running over her with her rear tires.  RR4:129-131, 133, 134, 136, 142, 143-150; PX64; PX 65.  Under these facts, the failure of Premier, S2S and MS The Trials to post a 5 mph speed limit and have speed bumps and warning signs cannot be said to be mere “remote, metaphysical causal connections” to the collision.  Appellants’ Brief at 32.[6]

B.        Loya’s testimony did not preclude a finding of causation.

Appellants claim that there can be no proximate cause because Loya testified that she knew she was not supposed to drive faster than 10 mph.  Appellants’ Brief at 35.  This claim should be rejected for a number of reasons.  First, Loya merely admitted at trial that if she had been driving more than 10 mph, that she was going too fast for the circumstances.  RR 3:208.  Her after-the-fact realization – occurring only after she had struck and killed Sheyla Trejo – that 10 mph would be too fast a speed for the Crosby Creek parking lot does not negate causation.  Second, Loya did not testify that she understood she was not supposed to drive over 10 mph at Crosby Creek and did not testify that Crosby Creek had a 10 mph speed limit or rule.[7] In fact, both Sondra Hernandez and Carol El-Hageibrahim admitted that Crosby Creek had no speed limit, posted or not, formal or informal.  RR 3:125, 127, 128; Appendix A at 57-58.  Lastly, even if Loya had testified that she knew back in March 2007 that she was not supposed to drive faster than 10 mph, Appellees’ expert testified that the Crosby Creek apartments should have had a speed limit of 5 mph, not 10 mph.  RR 4:17, 24-25.  Thus, Loya’s alleged knowledge that she should drive less than 10 mph was wholly irrelevant.

Appellants also claim that there could be no proximate cause because Loya came to a complete stop before she struck Sheyla Trejo and that she still could have reached  a speed of 7 to 10 mph after slowing for a speed bump.  Appellants’ Brief at 36-37.  But the evidence established Loya was driving at least 11 mph and as fast as 16 mph at the time of the collision.  And Appellees’ case was based not solely on the absence of speed bumps, but also on the absence of warning signs and a 5 mph posted speed limit.  Lastly, the jury was entitled to disbelieve Loya’s testimony that she came to a complete stop before striking Sheyla and had ample reason to do so.  As her own attorney admitted, Loya was a terrible witness at trial:

You know, I think everybody in this room agrees that this lady right here is a horrible witness.  She may be the worst witness I have ever seen in over 20 years of law practice.  I don’t think anybody disputes it.  I don’t think she would dispute it.  She’s not a good witness.

 

RR 5:124.  Because of her lack of credibility, not to mention the impossibility of reaching a speed of 11 mph in a few feet from a dead stop, the jury had ample reason to disbelieve Loya’s testimony that she came to a complete stop before accelerating and striking Sheyla Trejo.  Simply put, nothing in Mary Loya’s testimony would preclude an appropriate finding of proximate cause under the facts of this case.

C.        Relevant case law supports the existence of proximate cause.

 

In Poloski v. Wal-Mart Stores, Inc., 68 S.W.3d 445 (Mo. App. 2001), a woman was struck and killed by a car while walking in a Wal-Mart parking lot.  The evidence showed that the driver was traveling 15 to 20 mph and had looked to her left for a parking spot as the decedent crossed the parking lot from her right.  The driver never saw the decedent until she had struck and killed her.  The decedents’ family claimed that Wal-Mart was negligent in failing to install speed bumps in the parking lot.  The court of appeals affirmed a verdict for the plaintiffs, finding that there was evidence of proximate cause based on the speed of the driver, the layout of the parking lot and the fact that cars and merchandise on the sidewalk (like the parked cars in this case) obstructed the driver’s view of pedestrians approaching the parking lot.  Ultimately, the court concluded, no expert testimony was needed to establish Wal-Mart’s negligence and the issue was properly left to the discretion of the jury.  Id. at 450.

In Clifton v. Brown, 484 S.W.2d 884 (Ark. 1982), the parents of a six year-old child struck by a car while crossing the street in a trailer park sued the trailer park’s owner.   The jury found that the owner was negligent in failing to install speed limit signs and speed bumps and in failing to enforce its 5 mph speed limit policy and that such negligence was a proximate cause of the collision).   The court of appeals affirmed, finding evidence of proximate cause.

Finally, in Jackson v. Ray Kruse Constr., 708 S.W.2d 664 (Mo. 1986), parents of a four year-old hit by a bicycle in an apartment parking lot alleged that the apartment owner and operator were negligent in failing to install speed bumps in the apartment parking lot that would have prevented a bicyclist from exceeding 10 mph.  Id. at 666.  On appeal to the Missouri Supreme Court, the defendants argued that there was inadequate evidence of proximate cause.  Similar to the claims made by Appellants herein, they asserted that the bicycle could have been traveling 10 mph when it crossed the proposed speed bump and then accelerated to its purported speed of 16 mph by the time of the collision, thereby negating causation.  Despite these claims, the court reversed, finding that “the jury could properly find that a speed bump would have slowed the cyclist” and noting that the law of causation deals in probabilities not certainties.  Id. at 667-68.

In the one case cited by Appellants, Morrison v. Flintosh, 163 A.D.2d 646, 558 N.Y.S.2d 690 (N.Y. 1990), the court affirmed a summary judgment in favor of a mobile home park where evidence showed that a bicyclist hit by a car was negligent in driving on the wrong side of the road and that his negligence was the sole cause of the collision.  The court also noted that because the car that struck the bicyclist was only driving 3 to 5 mph that speed limit signs and speed bumps would have made no difference.  Here, Sheyla Trejo was incapable of negligence and the evidence showed that Loya was driving at least 11 mph, well in excess of the 5 mph speed limit that should have been posted.

  1. D. The negligence of Premier and the property owners did more than “furnish a condition” that made the collision possible.

 

Appellants claim that the acts and omissions of the property owners and property manager merely “furnished a condition” which made the collision possible.  But none of the cases they cite are even remotely analogous to the facts of this case.  See, e.g., Lear Sieigler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991) (failure of flashing yellow arrow sign pulled by truck was not cause of collision where driver that struck sign had fallen asleep at the wheel and could not have seen the yellow arrow had sign been working); Union Pump v. Albritton, 898 S.W.2d 773, 776 (Tex. 1995) (defect that caused fire in pump was not proximate cause of slip and fall that occurred hours after the fire was extinguished when worker slipped off pipe rack); General Motors v. Iracheta, 161 S.W.3d 462 (Tex. 2005) (design defect that allowed gas to siphon from fuel system was not cause of second fie occurring well after initial “flash fire” caused by the defect); TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 241 (Tex. 2010) (driver’s illegal immigrant status did not proximately cause collision between SUV and 18-wheeler);  Western Invsts., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005) (allegedly inadequate security at apartment complex could not have caused sexual assault where child willingly entered apartment of neighbor); HIS Cedars Treatment Center v. Mason, 143 S.W.3d 794, 801-02 (Tex. 2004) (allegedly negligent discharge of patient from psychiatric ward was not proximate cause of her injuries suffered two days later while passenger in car involved in a one-car accident).  And in most of the cases, the forces generated by the defendant’s negligence had “come to rest” before the act that caused the injury or damages had begun.  Here, by contrast, there was no temporal interruption between Appellees’ negligence and the actions of Mary Loya.  For all of the reasons set forth above, the acts and omissions of the Premier, S2S and MS The Trails did more than “furnish a condition” which made the collision possible.

E.        The evidence supported a finding of foreseeability.

 

Finally, Appellants claim that there was legally and factually insufficient evidence of the foreseeability element of proximate cause.  They assert that they could not have foreseen the “extraordinary confluence of events that led to this accident.” Appellants’ Brief at 38.  But there was nothing “extraordinary” about the events that led to the collision.  Rather, a woman who was driving too fast in a residential parking lot where children were known to play struck and killed a young girl.  And even if one could fairly characterize the chain of events as “extraordinary,” the law does not require Appellees to have foreseen these precise events.  “Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable.” Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); see also County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) (“foreseeability does not require that the exact sequence of events that produced an injury be foreseeable.”).  As the jury was properly instructed, to be a proximate cause of an event, the acts or omissions complained of need only be such “that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.”  CR 249 (emphasis added).

The cases cited by Appellants are easily distinguishable.  In Watkins v. Davis, 308 S.W.2d 906 (Tex. Civ. App. – Dallas 1957, writ ref’d n.r.e.), the court held that it was not foreseeable that an unoccupied, parked truck would “suddenly lunge forward,” crash through a 2000 pound icebox and injure a customer shopping inside the defendant’s grocery store.  And in Hendricks v. Todora, 722 S.W.2d 458 (Tex. App. – Dallas 1986, writ ref’d n.r.e.), the court concluded that the criminally reckless act of a drunk driver in crashing through a club’s glass wall was not foreseeable, holding that “an occupier of land is not liable to an invitee for a sudden and unexpected criminal attack when there has been no history of other violent crimes in the area.” Id. at 463.

Courts in cases involving facts more analogous to the instant case have routinely upheld findings of foreseeability.  See, e.g, Miller v. Southland Corp., No. 07-82-0045-CV, 1983 Tex. App. LEXIS 4913 at *10-11 (Tex. App.—Amarillo 1983, no writ) (court denied summary judgment, finding evidence that collision between car and customer on sidewalk was foreseeable even though there had been no prior similar incidents);  Pipgras v. Hart, 832 S.W.2d 360, 364 (Tex. App.—Fort Worth 1992, writ denied) (court upheld finding of foreseeability where driver in apartment parking lot struck concrete column abutting sidewalk, causing it to fall and injure minor child); McAllen Kentucky Fried Chicken No. 1 v. Leal, 627 S.W.2d 480, 482 (Tex. App.—Corpus Christi 1981, writ ref’d n.r.e.) (court affirmed jury verdict in favor of store customer injured inside store when car hit store’s outside wall, finding there was evidence that accident was foreseeable even though “over a period of eight years the twenty stores with similar type of drive-ways and sidewalks had never had an incident of that type”);  Brookshire Bros. v. Lewis, 911 S.W.2d 791, 795 (Tex. App.—Tyler 1995, writ denied) (court upheld jury’s finding of foreseeability in case in which a grocery store customer was injured when a car crashed through the front wall of the store).  Whether the collision or some similar event was foreseeable was a fact issue the jury properly resolved in Appellees’ favor.

  1. IV. There was legally and factually sufficient evidence of Premier’s liability under a respondent superior theory.

 

  1. A. The Court need not address this issue.

A court need not address issues which would not affect the trial court’s judgment.  See, e.g., Brewer v. Simental, No. 07-10-00155-CV, 2010 Tex. App. LEXIS 8332 at *16 (Tex. App.—Amarillo Oct. 15, 2010) (“ At the end of the day, we need not reach this issue for it does not alter the disposition of the case.”).  Here, the jury found Premier liable for its own negligence and apportioned 60% of the liability to Premier and 5% to Loya.  CR 250-52.  Because Premier was found more than 50% liable, the Judgment held  Premier jointly and severally liable for all of Appellees’ damages.  CR 262; Tex. Civ. Prac. Rem. Code Ann. § 33.013.  Even if the jury improperly found Loya to be acting in the course and scope of her employment, it would not affect the Judgment; Premier would still be jointly and severally liable for the 5% liability assessed against Loya because of the 60% liability assessed against Premier.  Because disposition of this issue would not affect the Trial Court’s judgment, this Court need not address it.

  1. B. There was legally and factually sufficient evidence that Mary Loya was acting in the course and scope of her employment with Premier at the time of the collision.

 

Premier contends that Appellees presented legally and factually insufficient evidence of respondeat superior liability.  Under the theory of respondeat superior, an employer is vicariously liable for the negligent acts of its employee if the employee’s actions were within the course and scope of his employment. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007).  Whether an employee’s acts fall within the “course and scope” of his employment is generally a question of fact. See, e.g., GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618, 42 Tex. Sup. Ct. J. 907 (Tex. 1999).

The evidence at trial showed that Loya was an employee of Premier who worked at Crosby Creek as a housekeeper.  RR 3:111, 174-75; Appendix A at 12, 78, 98.   Loya had previously used her truck to haul cleaning supplies as part of her job, and Premier had no rule or regulation prohibiting Loya from doing so.  RR 3:115, 177-79; Appendix A at 23, 144.  Loya had also previously driven co-worker Faustino Florentino in her truck to assist him with his job, and she was expected to assist her colleagues when needed.   RR 3:117, 181-83.  Sondra Hernandez, Loya’s direct supervisor, knew that Loya used her truck for her work and never told her that she could not do so.  RR 3:114-15, 184.

On the date of the collision, Sondra Hernandez asked Premier employee Faustino Florentino to get a roto-rooter machine from another property in order to unclog a toilet at one of the Crosby Creek apartments.  RR 3:116-17, 190-91, 164.  The clogged toilet was an “emergency” and needed immediate attention.  RR 3:164.  The only Premier employees at Crosby Creek were Hernandez, Florentino and Loya.  RR 3:165.  Hernandez admitted that Florentino specifically needed a truck to haul the roto-rooter because of its size.  RR 3:117.   Hernandez knew that Florentino had no truck and no other way to haul the roto-rooter on his own.  RR 3:191.  Hernandez also knew that Loya had a truck and had used it before in her job.   RR 3:114-15, 184.  And as Appellants admit in their Brief, “Loya’s was the only truck available.”  Appellants’ Brief at 22; RR 3:165.   Under these facts the jury could rightfully have inferred that Hernandez expected, or even requested, Loya to drive Florentino to pick up the roto-rooter.

Regardless of whether she specifically told Loya to drive Florentino, Hernandez admitted that Loya driving Florentino to get the roto-rooter was in furtherance of Premier’s business.  RR 3:118.  And Hernandez’s boss, Carol El-Hageibrahim, admitted that Premier benefitted from Loya driving Florentino.  Appendix A at 22.  After picking up the roto-rooter machine and dropping Florentino back off at Crosby Creek, Loya was driving through the parking lot toward the apartment complex office.  PX1; RR 3:197, 199-200.  Seconds later, she ran over and killed Sheyla Trejo.  RR 3:206.

The foregoing facts provide legally and factually sufficient evidence to support the jury’s finding that Mary Loya was acting in the course and scope of her employment at the time of the collision.  Her actions were within the scope of her general authority, in furtherance of Premier’s business and for the accomplishment of the objective for which she was hired, which included helping her co-workers.   As such, she was acting in the course and scope of her employment as a matter of law.  See, e.g., Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002).

In response to the uncontroverted facts set out above, Premier cites to a collection of inapposite cases stating the general rule that an employee is not acting in the course and scope of his employment while driving to or from work. See Wilson v. H.E. Butt Grocery Co., 758 S.W.2d 904, 907 (Tex. App.—Corpus Christi 1988, no writ); Upton v. Gensco, Inc., 962 S.W.2d 620, 621-622 (Tex. App. – Fort Worth 1997, pet. denied); London v. Texas Power & Light Co., 620 S.W.2d 718, 720 (Tex. Civ. App. – Dallas 1981, no writ).  But in the instant case, Loya was nor driving to or from a remote jobsite where she would perform all of her work for the day.  Rather, in this case, the driving was the work.   The cases cited by Appellants are inapplicable and do not alter the fact that Loya was acting in the course and scope of her employment.

  1. C. There was a fact question regarding whether Mary Loya was “on the clock” at the time of the collision.

 

Appellants contend that Loya could not be within the course and scope of her employment because she was “off the clock” at the time of the collision.  Appellants’ Brief at 23-24.  However, the only records produced by Appellants reflected that Loya worked from 8:00 to 12:00 and 1:00 to 5:00 on the day of the accident.  RR 3:122-23; Appendix A at 29-31, 37-38; PX3.  The accident happened at approximately 3:30 p.m., during Loya’s normal working hours.  After the collision, while the events were fresh in her mind and while she was trying to be as accurate and truthful as possible, Loya told the police in a written statement that she had “dropped the maintenance man at the corner and was going to the office” when the collision occurred. RR 3:197-198; PX2.

Premier asserts that the “uncontroverted” testimony of Premier employees Loya, Hernandez and El-Hageibrahim prove that Loya had nonetheless ended her workday early before being asked by Florentino to help transport the roto-rooter machine.  As an initial matter, such testimony is unreliable in light of Loya’s time-sheets and her written statement to the police that she was returning “to the office” at the time of the collision.  RR 3:197-198; PX2.  In any event, the jury was entitled to disbelieve the self-serving testimony of Premier’s employees.  See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (“Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony.  They may choose to believe one witness and disbelieve another.  Reviewing courts cannot impose their own opinions to the contrary.”).  There was a clear fact question for the jury as to whether Loya was on the clock when the collision took place.

  1. D. Even if she was “off the clock” at the time of the collision, the evidence raised a fact issue as to whether Loya was on a special mission for Premier.

 

A “special mission” is an errand in furtherance of the employer’s business undertaken with the express or implied approval of the employer.  Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d 354, 356 (Tex. App.–El Paso 1993, no writ); Gebert v. Clifton, 553 S.W.2d 230, 231-32 (Tex. Civ. App.–Houston [14th Dist.] 1977, writ dism’d w.o.j.).  A special mission “involves work or a work-related activity apart from the employee’s regular job duties.”  Upton v. Gensco, Inc., 962 S.W.2d 620, 621 (Tex. App.—Fort Worth 1997, pet. denied).  If found to be on a special mission, the employee will be considered as still on such a mission while returning from the place to which he went for the benefit of his employer. Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122, 129 (Tex. Civ. App.–Tyler 1977, writ ref’d n.r.e.) (“The rule is that if an employee is sent on a special mission, he is considered as still on such mission while returning from the place to which he was required to go by his employer”); Chevron, 847 S.W.2d at 356 (employee on special mission is in course and scope of employment while returning home from the mission).

In this case, the evidence conclusively showed that even if Loya had completed her workday early on March 16, 2007, she nonetheless embarked on a special mission on behalf of, and with the implied permission of, Premier by assisting Faustino Florentino with his work.  She was known to use her truck for her work, was expected to help her co-workers do their job and was the only person that had the truck Florentino needed to get the rotor-rooter.  RR 3:115, 117, 165, 184; RR 3:165.  Premier had no policies prohibiting Loya from using her truck and she had never been told by Sondra Hernandez or Carol El-Hageibrahim not to use her truck.  RR 3:114-15, 177-79, 184; Appendix A at 23, 24, 46, 47, 144.  And Loya’s driving Florentino unquestionably furthered the business interests of Premier.  RR 3:118; Appendix A at 22.

Even if Loya was “off the clock” and was proceeding “home” instead of “to the office,” because she was on a special mission, Loya was still acting in the course and scope of her employment at the time of the collision.  See, e.g., Arbelaez v. Just Brakes Corp.,149 S.W.3d 717, 720 (Tex. App.–Austin 2004, no pet.) (fact issue as to whether an employee was acting within the scope of employment when he had an accident while making a “breakfast run” for his fellow employees); Chevron, 847 S.W.2d at 356 (employee traveling en route to mandatory seminar was on a special mission); Best Steel Bldgs., 553 S.W.2d at 129 (employees traveling from job site to pick up supplies were on a special mission).  For all of the foregoing reasons, there was legally and factually sufficient evidence that Loya was acting in the course and scope of her employment.

  1. V. The jury’s failure to find Maria Trejo negligent was not against the great weight and preponderance of the evidence.

 

Appellants assert that the jury’s failure to find Maria Trejo negligent was against the great weight and preponderance of the evidence.   However, the facts admitted at trial showed that although Sheyla was at Maria’s apartment, it was Vilma Rivas — not Maria Trejo — who was responsible for babysitting Sheyla.  RR 3:64 (Vilma was babysitting Sheyla because Maria had to work); RR 3:65 (when Maria returned from work, “Vilma was still watching Sheyla”); RR 3:67 (Vilma was “the one who was responsible for babysitting Sheyla that day.”); RR 3:87 (“Vilma was in charge of babysitting that day”); RR 3:100 (on the day of the accident, Vilma Rivas, was babysitting Sheyla); RR 5:76 (“Vilma was taking care of the baby.”).  In fact, in their Brief, Appellants refer to Rivas as the sole “babysitter.”  Appellants’ Brief at 38.

Because she had to work that day and then, after returning home, had to quickly leave to pick up Sheyla’s mother at the hospital, Maria never “undertook Sheyla’s supervision” as Appellants claim.  Appellants Brief at 38.  The jury clearly understood that it was Vilma Rivas, not Maria Trejo, who was responsible for Sheyla on the day of the collision.  Under these facts, it cannot be said that the jury’s failure to find Maria negligent was against the great weight and preponderance of the evidence.

  1. VI. The jury’s allocation of liability was supported by the evidence and cannot be disturbed on appeal.

 

Texas courts have long held that “the jury is given wide latitude in performing its sworn duty to serve as fact finder in allocating responsibility for an accident pursuant to Section 33.003 of the Civil Practice and Remedies Code.”  Rossell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 659 (Tex. App.—Dallas 2002, pet. denied).  “If the evidence is sufficient to support the jury’s negligence finding, the Court may not substitute its judgment for that of the jury, even if the evidence could support a different percentage allocation.” Hampton v. Nguyen, No. 01-10-00473-CV, 2011 Tex. App. LEXIS 5844 at *7-8 (Tex. App.—Houston [1st Dist.] July 28, 2011, no pet. history); Samco Properties, Inc. v. Cheatham, 977 S.W.2d 469, 478 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (“Even if a different percentage allocation could be supported by the evidence, an appellate court may not substitute its judgment for that of the jury.”).

Appellants focus on the fact that the jury assessed much higher blame on the property managers and property owners than on Sheyla’s babysitter, Vilma Rivas.  Appellants’ Brief at 40.  But the jury heard that Rivas simply got up from the kitchen table briefly to feed her baby, leaving Sheyla with another adult, Maria Trejo.  RR 3:67-68.  Maria’s teenage daughters, Ines and Carolina, were also in the apartment.  RR 3:67-68, 102-06; RR 5:76-78, 91-93.  The door to the apartment was closed.  RR 3:69, 81.  When Maria got up briefly to change her shirt, Sheyla apparently followed her cousin, Carolina, out of the apartment before anyone could stop her.  RR 3:89-91.

The actions of Vilma Rivas were, at most a momentary lapse in judgment.  They stand in stark contrast to Appellants’ prolonged, intentional failure to take even the most basic safety precautions at Crosby Creek such as installing speed bumps, speed limit signs and warning signs.  Moreover, while Vilma Rivas momentarily lefty Sheyla with her adult aunt and teenage cousins when she went to feed her baby, the corporate Appellants entrusted the safety of literally hundreds of apartment residents and their guests to a 26 year-old woman with absolutely no property management education, training or experience. RR 3:112-13, 132.  These facts provide ample justification for the jury’s assessment of proportionate responsibility.

  1. VII. The admission of photographs of adjacent properties that was cumulative of witness testimony did not constitute reversible error.

 

  1. A. Even if the Trial Court erred in admitting the photographs, its error was harmless where the photos were merely cumulative of Maria Trejo’s trial testimony regarding the adjacent properties.

 

Appellants complain of the admission of photographs that depicted the parking lots of the apartments immediately adjacent to Crosby Creek.  But at trial, Appellees established that Maria Trejo was personally familiar with the condition of the adjacent properties in March 2007 because she had looked at them when she first moved into Crosby Creek.  RR 3:45, 54-55, 57-58, 72-75.  Appellants never challenged the admissibility of her testimony.  RR 3:57-63.  Given that Maria Trejo had first-hand knowledge that the adjacent properties had speed limit signs, speed bumps and warning signs, the admission of photographs which were merely cumulative of that clearly admissible testimony cannot constitute possibly constitute reversible error.  See, e.g., Rainbo Baking Co. v. Stafford, 787 S.W.2d 41, 42 (Tex. 1990) (“After reviewing the record, however, we are of the opinion that Tunstill’s testimony, to the extent it was probative, was cumulative of other evidence properly admitted at trial.  Therefore, the trial court’s error did not amount to such a denial of the rights of the petitioner as was calculated to cause and probably did cause the rendition of an improper judgment.”); Gee v. Liberty Mutual Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989) (“improper admission of evidence does not as a rule constitute reversible error when there is other competent evidence of the fact in question in the record.”); Vingcard A.S. v. Merri-Mac Hospitality Systems, Inc., 59 S.W.3d 847, 859 (Tex. App.—Fort Worth 2001, pet. denied) (“When the complained-of testimony is cumulative, then any error in its admission is harmless.”).

B.        The Trial Court properly found that Appellees had good cause for inadvertently failing to produce the photographs earlier.

 

“An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling.”  Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).  Here, the Trial Court impliedly found that Appellees had good cause for inadvertently failing to produce the photographs until one week before trial.  Specifically, the evidence showed that the photos were taken after Appellees’ expert prepared his report and were therefore not produced in response to requests for disclosure.  RR 3:50.  Moreover, the evidence showed that that there had been a late change in counsel for Appellees and that the photos were produced one week before trial, as soon as Appellees’ new counsel learned they had not previously been produced.  RR 3:49-51.  These facts justified a finding of good cause.

C.        The Trial Court properly found that the production of the photographs one week before trial did not cause Appellants unfair surprise or prejudice.

 

The photos at issue were taken after Appellees’ property management expert, Robert Miller, prepared his report, were not furnished to Miller in anticipation of his trial testimony, were not relied upon by Miller in forming his opinions and were not used with Miller at trial.  RR 3:49-50, 53, 55; RR 4:8-49; PX 40.  Rather, the photos were introduced solely to corroborate Maria Trejo’s trial testimony regarding the conditions of the adjacent properties in March 2007, testimony appellants never challenged.  RR 3:45, 54-55, 57-63.  Photos that merely corroborated Trejo’s clearly admissible testimony and were produced in advance of trial cannot be said to have unfairly prejudiced Appellants.

Nor could Appellants have been unfairly surprised by photos of the adjacent properties showing speed limit signs and speed bumps when the absence of those safety devices at Crosby Creek was clearly part of the case from the very beginning.  Before trial, Appellants’ expert, Hal Watson, produced a supplemental expert report in which he opined that “speed bumps are rarely used in apartment complexes.”  RR 4:93-94.  At trial, when confronted with the photos of adjacent properties, Watson admitted that he had been to Crosby Creek to conduct an inspection and take photos and that he could have walked over to the adjacent properties to see if they had safety features like speed bumps, speed limit signs and warning signs.  RR 4:94, 96.  No unfair surprise could exist where, as here, Appellants had the same access to the adjacent properties as did Appellees.  See, e.g., Williams v. County of Dallas, 194 S.W.3d 29, 33 (Tex. App.—Dallas 2006, pet. denied) (trial court did not err in admitting tax return that had not been produced in response to discovery request because the defendant taxpayer “had the same access to public tax records as the taxing units” and there was therefore no unfair surprise or prejudice to the defendant).

Finally, there could be no unfair surprise or prejudice where, as here, the evidence consisted of photographs and was produced at least one week before trial.  Had Appellants, their experts or their attorneys traveled to Crosby Creek after the photos were produced, they would have verified that the photos accurately depicted their condition.  Because the photos accurately depicted the adjacent properties, regardless of when they were produced, Appellants could not have discredited or impeached them.  For all of the foregoing reasons, Appellants were not unfairly surprised or prejudiced by the photos.

D.        This case is easily distinguishable from Lopez.

 

Appellants claim that the photographs of the adjacent properties were responsive to various discovery requests and should have been produced more than thirty days before trial.   Appellants cite Lopez v. La Madeleine of Texas, Inc., 200 S.W.3d 854, 858 (Tex. App.—Dallas 2006, no pet.), in which the defendant actually withdraw its objections to the discovery request at issue yet still refused to produce the videotapes.  Here, by contrast, Appellees properly objected to Appellants’ discovery requests (Supp. R.R. DX-1 at Request Nos. 4, 5, 22, 23; RR 3:49-50) and Appellants never sought or obtained a hearing on those objections, thereby waiving any potential error in the admission of the photos.  See, e.g., State Farm Fire & Casualty Co. v. Morua, 979 S.W.2d 616, 620 (Tex. 1998) (“If appellant was concerned about the reliability of the State’s answers, the more appropriate procedure would have been for appellant to object before trial or file a pre-trial motion to compel under Rule 215(1)(b), or move for sanctions under Rule 215(2)(b).  Prior to trial, appellant neither objected nor filed the appropriate motion under Rule 215.  Thus, appellant cannot now complain.”); Interceramic, Inc. v. South Orient Railroad Co., 999 S.W.2d 920, 930 (Tex. App.—Texarkana 1999, pet. denied) (“In situations where supplemental responses are for some reason inadequate, and the complaining party is aware of the inadequacy before trial but waits until trial to object, the objection is too late and the complaint is waived.”).

This case is also distinguishable from Lopez because here the evidence is undisputed that the failure to produce the photos until one week before trial was inadvertent.  In Lopez, by contrast, the defendant made an intentional, tactical decision to withhold the video at issue.  Also, in Lopez, the video was not produced at all before trial and was instead sprung on the opposing party during the trial itself.  Here, by contrast, the photos were produced one week before trial.  Because the facts are so markedly different, the holding in Lopez does not compel reversal of the Trial court’s judgment.

  1. VIII. A defendant found jointly and severally liable under Chapter 33 of the Texas Civil Practice and Remedies Code is jointly and severally liable for all damages, including those attributable to a responsible third party.

 

Finally, Appellants assert that a defendant found jointly and severally liable under Chapter 33 of the Texas Civil Practice and Remedies Code may not be held jointly and severally liable for the damages attributable to a responsible third party.  Appellants’ Brief at 46-50.  This argument, however, ignores the plain language of Chapter 33 of the Texas Civil Practice and Remedies Code.  Tex. Civ. Prac. & Rem. Code §33.013 (Vernon 2011).  Because Premier was found by the jury to be 60% responsible (CR 252), it was properly held by the Trial Court to be jointly and severally responsible for all of the damages recoverable by Appellees under Section 33.012.  See Bay Rock Operating Co. v. St. Paul Surplus Lines Ins. Co., 298 S.W.3d 216, 233 (Tex. App.—San Antonio 2009, pet. denied) (“the plain language of section 33.013(b)(1) simply does not make the application of joint and several liability dependent upon whether or not another person, such as a responsible third party, can or will ultimately pay for its share of responsibility; the only requirement is that the liable defendant meets the threshold percentage of fault.”).  Appellants’ argument against joint and several liability ignores the plain language of Chapter 33 and the holding in Bay Rock and should be rejected.

CONCLUSION AND PRAYER

Appellees respectfully pray that this Court affirm the judgment of the Trial Court and grant them such other and further relief, at law and in equity, to which they may show themselves justly entitled.

Respectfully submitted,
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Second Floor
Dallas, Texas 75220
(214) 237-9001 (Telephone)
(214) 237-9002 (Telecopier)


[1] The reason this is important is because the police noted a 16 foot distance from area of impact to point of rest of Loya’s truck.  RR 4:110-11.  Hal Watson added two feet to that number to come up with a distance of 18 feet from point of impact (“POI”) to point of rest (“POR).  RR 4:111.  Watson then used that 18 foot number in a standard formula for speed calculation to determine Loya’s speed at the time of the collision was 7 to 10 mph.  RR 4:68, 107-08.  However, when you take into account the fact that Sheyla was actually struck much further back in the parking lot and propelled forward to her final resting place, the same formula shows that Loya was driving at least 11 mph, a speed Loya admitted was “too fast,” and possibly as fast as 16 mph.  RR 4:129-31, 136, 142, 143; PX 63.

[2] Appellants note that the investigating officer determined the collision was a “low speed collision.”  Appellants’ Brief at 10; PX2.  But what they fail to mention was that at trial, the officer explained that “low speed” merely meant that Loya was not driving in excess of 20 mph.  RR 5:41. 46.  He also testified that he never calculated Loya’s speed and had no opinion regarding Loya’s actual speed.  RR 5:32, 36, 41, 46.

[3] While Officer McCraw testified he did not think the accident could be avoided, he also admitted  he had none of the factual information needed to reach such a conclusion.  RR 4:14-15, 30-32, 36-37, 43-45; PX70.  Especially in light of this admission, the jury was free to accept or reject McCraw’s opinions.  See, e.g., Meza v. State, No. 13-01-141-CR, 2002 Tex. App. LEXIS 6171 at *11 (Tex. App.—Corpus Christi Aug. 22, 2002) (“The jury, as the sole judge of credibility, was able to see and hear the officers’ testimony and weigh their credibility.”).  Tellingly, Appellants do not cite McCraw’s testimony in their Brief.

[4] While Appellants cite two cases for the proposition that “minor children who are social guests are licensees,” neither is applicable here.  In each of the cases, the court determined the status of the social guest vis-à-vis their host, not vis-à-vis an apartment owner or property manager.  See Dominguez v. Garcia, 746 S.W.2d 865, 867 (Tex. App.—San Antonio 1988, writ denied) (“under Texas law, social guests are treated as licensees for purposes of determining what duty is owed by a homeowner.”);  Harrod v. Grider, 701 S.W.2d 937, 938 (Tex. App.—Beaumont 1985, no writ) (“In this state, the general rule is a host is held to owe a social guest a duty not to injure him by willful, wanton or gross negligence.”). And neither case turned on the fact that the guest was a minor.

[5] Appellants also claim that the testimony of Appellees’ property management expert “assumed that the Property Manager had the Owner’s authority to make capital improvements such as speed bumps and signage” and that there was no evidence of such authority.  Appellants’ Brief at 31, n.17.  Appellants are simply wrong.   Appellees’ expert never testified that he assumed Premier had the authority to make capital improvements.  Rather, he testified that property managers have a duty to manage a property, make sure it is operating correctly, maintain the property and assure that the property is safe.  RR 4:14-15, 20, 21.  Similarly, both Sondra Hernandez and Carol El-Hageibrahim — employees of Premier acting as the on-site and off-site managers of Crosby Creek — testified that Premier had responsibility for the safety and maintenance of Crosby Creek.  RR 3:132; Appendix A at 98.  Any alleged inability of Premier to fulfill this responsibility would be an affirmative defense on which Premier would have the burden of proof.  See, e.g., Christy v. Blades, 448 S.W.2d 107, 111 (Tex. 1969) (holding that plaintiff truck driver failed to establish his affirmative defense of impossibility of compliance with statute requiring he stop a certain distance from railroad tracks, violation of which the railroad contended established driver’s contributory negligence).

[6] Appellants assert that speed bumps would not have prevented the collision because Loya could still accelerate to 7 to 10 mph between crossing a speed bump and the collision.  Appellants’ Brief at 36.  But evidence showed that Loya was driving between 11 and 16 mph at the time of the collision.  RR4:129-131, 136; PX63.  Moreover, while Appellants point to the lack of expert testimony regarding the effect of speed bumps, other courts have held that such testimony is not necessary.  Poloski v. Wal-Mart Stores, Inc., 68 S.W.3d 445, 450 (Mo. App. 2001) (finding expert testimony that “the presence of speed bumps would have slowed the driver” was not necessary and stating “we are not persuaded that such testimony was necessary and that the inferences to be drawn from the evidence leaves those issues beyond the ken of an average juror.”).

[7] When questioned by her own counsel, Loya initially stated that she did not know what the speed limit was at Crosby Creek.  RR 3:230-12-14.  Her attorney then asked her a leading question regarding whether the speed limit was 10 mph and counsel for Appellees objected.  RR 3:15-21.  When Loya’s counsel again asked her what she understood the speed limit at Crosby Creek was, she answered “slow.”  RR 3:230.  Loya never testified that Crosby Creek had a 10 mph speed limit or rule.