Opinion issued December 14, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00554-CV

MAETHENIA JORDAN, Appellant

V.

SAVA, INC. & JOHN D. MOORE, Appellees

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2000-52097

DISSENTING OPINION ON REHEARING

I respectfully dissent. I believe the trial judge was within his discretion in submitting an instruction on sudden emergency to the jury and the original panel opinion was correct.

As the majority acknowledges, Moore was driving within the speed limit when he crested a hill on a busy freeway and came upon a motionless line of cars in his lane waiting to exit; the car directly in front of him swerved into the left lane; and Moore then swerved into the emergency lane, traveled some distance, and hit Jordan's car. The majority concludes, however, that the accident in which Jordan was injured could not have been a sudden emergency, because, as a matter of law, Moore was driving negligently before the emergency arose.

According to the majority, "Moore was between two and three car lengths away from the car in front of him when they crested the hill," "his truck took between 120 and 250 feet to stop when it was traveling without a trailer at 40 miles per hour," and "250 feet is the equivalent of 10 to 12 car lengths." Therefore, because a driver must legally maintain a distance sufficiently safe to stop at all times--regardless of the speed of the vehicles, traffic, the conditions of the highway, or the cause of the driver's failure to stop--Moore was driving negligently as a matter of law, i.e., he was negligent per se. Because I believe the majority improperly concludes that it is negligence per se for a driver to fail to maintain a distance sufficient to stop when an emergency arises, regardless of the circumstances, and that it, therefore, erroneously concludes that the trial court erred in giving a sudden emergency instruction, I respectfully dissent.

Standard of Review of Sudden Emergency

A sudden emergency instruction advises the jurors that if the evidence shows that conditions beyond the party's control caused the accident in question or that the conduct of some person not a party to the litigation caused it, the jury does not have to place blame on a party. Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 432 (Tex. 2005). The purpose of the instruction is to advise the jurors, in an appropriate case, "that they do not have to place blame on a party to the suit, if the evidence shows that conditions beyond the party's control caused the accident in question." Id.

For an instruction on sudden emergency to be proper, the evidence must support the elements of the sudden emergency defense, i.e., that (1) an emergency situation arose suddenly and unexpectedly; (2) the emergency situation was not proximately caused by the negligent act or omission of the person whose conduct is under inquiry; and (3) after an emergency situation arose that to a reasonable person would have required immediate action without time for deliberation, the person acted as a person of ordinary prudence would have acted under the same or similar circumstances. See Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995); Evans v. Allwhite, 111 S.W.3d 282, 286 (Tex. App.--Texarkana 2003, no pet.); Priest v. Myers, 598 S.W.2d 359, 363 (Tex. App.--Houston [14th Dist.] 1980, no writ); see also Dillard, 157 S.W.3d at 432 n.4.

If there is conflicting evidence regarding whether there was a sudden emergency, the trial court should submit the requested instruction. Oldham v. Thomas, 864 S.W.2d 121, 127 (Tex. App.--Houston [14th Dist.] 1993), aff'd in part & rev'd in part on other grounds, 895 S.W.2d 352 (Tex. 1995). Indeed, if there is any support in the evidence for a sudden emergency instruction, the instruction is properly given. Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998); Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995); Francis v. Cogdell, 803 S.W.2d 868, 871 (Tex. App.--Houston [1st Dist.] 1991, no writ). A trial court has "great latitude" in determining its instructions to the jury. Knighten, 976 S.W.2d at 676; Evans, 111 S.W.3d at 284; Francis, 803 S.W.2d at 870; see also Dillard, 157 S.W.3d at 432-34 (discussing overlapping nature of inferential rebuttal instructions used when defendants blame occurrence on something or someone other than themselves). Thus, if a doctrine has been pleaded, and there is some evidence of probative value to support its application, the trial court has a duty to instruct the jury to assist it in reaching its verdict. See DeLeon v. Pickens, 933 S.W.2d 286, 290-91 (Tex. App.--Corpus Christi 1996, writ denied) (quoting former Tex. R. App. P. 81(b)(1)); Charter Oak Fire Ins. Co. v. Taylor, 658 S.W.2d 227, 229 (Tex. App.--Houston [1st Dist.] 1983, no writ). On appeal, the reviewing court must examine the pleadings, the evidence presented, and the jury charge; any error regarding a requested instruction will not be deemed reversible unless it "was reasonably calculated to cause and probably did cause rendition of an improper judgment." DeLeon, 933 S.W.2d at 290; see Knighten, 976 S.W.2d at 676.

Discussion

Negligence Per Se

This case is virtually identical in material respects to Knighten, a Texas Supreme Court case involving a three-party rear-end collision that occurred when it was raining and the streets were wet. 976 S.W.2d at 674. Knighten, the plaintiff, had to stop suddenly because the car in front of her stopped without warning, after which a truck hit her from behind and was hit by a second truck, causing the first truck to strike her a second time. Id. The trial court refused a negligence per se instruction, submitted an instruction on sudden emergency, and rendered a take-nothing judgment for the defendants on the basis of a jury verdict that none of the drivers was negligent. Id. at 675. The court of appeals held that the trial court erred in refusing the negligence per se instruction, in refusing a trial amendment to allege negligence per se, and in submitting the jury instruction on sudden emergency. Id. The supreme court concluded "that the trial court's rulings were not erroneous and that the court of appeal erred in holding to the contrary." Id. Accordingly, it reversed and rendered a take-nothing judgment for the defendants. Id.

The defendants in Knighten argued that the court of appeals misapplied the standard of care in article 6701d of the Texas Civil Statutes, which had, by the time of the opinion, been repealed and codified as section 545.062(a) of the Texas Transportation Code, entitled "Following Distance." See Knighten, 976 S.W.2d at 675 (quoting former article 6701d). In language virtually identical to former article 6701d, current section 545.062(a) provides:

An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.

Tex. Transp. Code Ann. § 545.062(a) (Vernon 1999).

The supreme court agreed with the defendants' construction of the law. It held that "a statute that requires a driver [to] proceed safely imposes on the driver a duty of reasonable care, thus precluding a negligence per se instruction." Knighten, 976 S.W.2d at 675. In rejecting Knighten's argument that a sudden emergency instruction was improper, the supreme court stated, "The trial court has great latitude and considerable discretion to determine necessary and proper jury instructions . . . . If an instruction might aid the jury in answering the issues presented to them, or if there is any support in the evidence for an instruction, the instruction is proper." Id. at 676. Here, like the court of appeals in Knighten, the majority creates a per se negligence rule of law based on its interpretation of the implied requirement of Texas transportation law that a driver following another vehicle must "maintain an assured clear distance between the two vehicles." See Tex. Transp. Code Ann. § 545.062(a). Also like the Knighten court of appeals, the majority fails to take into account the limitation on the "assured clear distance" requirement, namely that the rule is to be applied reasonably, "considering the speed of the vehicles, traffic, and the conditions of the highway," so that a negligence per se rule cannot be implied. See Knighten, 976 S.W.2d at 676.

Rather than relying on Knighten, the panel relies on argument by analogy to "deemed negligence" cases. It cites DeLeon, 933 S.W.2d at 290, and Oldham, 864 S.W.2d at 127, for the proposition that "[t]he sudden emergency doctrine does not apply in a rear-end collision case where the defendant is 'deemed negligent' for failing to maintain a proper distance from the vehicle in front." DeLeon and Oldham both go on to state, however, that an instruction on sudden emergency is not improper in a rear-end collision case when there is conflicting evidence as to whether the defendant's actions prior to the emergency situation were negligent. DeLeon, 933 S.W.2d at 294; Oldham, 864 S.W.2d at 127. Because the record contains conflicting evidence as to whether Moore was driving negligently before the emergency arose, I would find DeLeon and Oldham inapposite. In my view, Dillard and Knighten control this case.

Propriety of Sudden Emergency Instruction in This Case

Here, the sudden emergency instruction submitted to the jury stated,

"Emergency" means if a person is confronted by an "emergency" arising suddenly and unexpectedly, which was not proximately caused by any negligence on his part and which, to a reasonable person, requires immediate action without time for deliberation, his conduct in such an emergency is not negligence or failure to use ordinary care if, after such emergency, arises, he acts as a person of ordinary prudence would have acted under the same or similar circumstances.

The instruction was in the form approved by the Texas Supreme Court. See Thomas, 895 S.W.2d at 360. The majority holds that the sudden emergency instruction was improper, however, because Moore must be deemed to have proximately caused the accident because he was following the vehicle in front of him too closely. I believe that the evidence raised a fact issue for the jury as to each of the elements of sudden emergency, hence as to Moore's culpability for the accident, and that the instruction was, therefore, properly given.

(1) Sudden and Unexpected Situation

The sudden and unexpected situation pled in this case was Moore's coming upon a line of cars stopped in the exit lane of the freeway just over the crest of an overpass.

In Reinhart, the Texas Supreme Court found no error in the submission of both an "unavoidable accident" instruction and a sudden emergency instruction when a driver rear-ended a car stopped on the blind side of an overpass. 906 S.W.2d at 472; ⁽¹⁾ see also Knighten, 976 S.W.2d at 676 (sudden emergency instruction did not cause rendition of improper judgment when defendant ran into plaintiff from behind after plaintiff abruptly applied her brakes on wet street in rain); Francis, 803 S.W.2d at 871 (testimony that rear-end collision was caused by plaintiff suddenly slamming on brakes while light was yellow during morning rush hour in rain on wet and slick roads supported trial court's instruction on sudden emergency); Bounds v. Scurlock Oil Co., 730 S.W.2d 68, 71 (Tex. App.--Corpus Christi 1987, writ ref'd n.r.e.) (sudden emergency instruction not error when driver who struck car on shoulder was traveling around curve just before accident and had been "blinded" by headlights of oncoming car); Crowley v. Babolcsay, 611 S.W.2d 492, 494 (Tex. App.--Austin 1981, writ ref'd n.r.e.) (sudden emergency instruction warranted when evidence showed defendant swerved into wrong side of road to pass car in front of him, leading to head-on collision with plaintiff on top of "blind" hill on rainy afternoon).

I would conclude that the "sudden emergency" alleged here--Moore's coming upon stopped vehicles on the blind side of an overpass on a freeway--falls within the scope of a sudden emergency situation.

(2) Defendant's Negligence and Proximate Cause

To justify submission of a sudden emergency instruction, there also had to be evidence in the record that Moore was not driving negligently under the conditions prevailing before the emergency arose, i.e., before he came over the crest of the overpass and saw the stopped cars in front of him and, therefore, that his wrongful actions did not proximately cause the accident.

There was conflicting evidence as to whether Moore was driving too fast or too close to the vehicle in front of him under the circumstances that existed prior to his coming over the overpass. Jordan characterized the road conditions as being standard rush-hour, bumper-to-bumper traffic, implying that stoppages on the freeway were to be expected. However, this characterization was not wholly supported by the record. Other than references at different points during trial that the accident occurred in the afternoon or in the evening, the exact time of the accident was not specified, except by Jordan, who stated that it was "somewhere between five and six." Jordan also testified, however, that the traffic was "busy going both directions," not that there were sudden stoppages on the freeway.

Moore was driving between 35 and 50 miles per hour, which was well within the 40-55 mile per hour speed limit. The freeway was busy, and he was traveling at the same speed as the car in front of him when both crested the overpass. There was evidence that the car in front of him swerved into the left lane. Moore testified that he saw neither stopped vehicles nor vehicles slowing down ahead of him before he came down the blind side of the overpass and that he saw no brake lights from vehicles ahead of him that would indicate heavy traffic or vehicles. Moore also testified that he did not see any indication of congestion prior to encountering the emergency, as any congestion that existed was on the blind side of the overpass. Nor was there any other evidence that traffic was stopped on the freeway on the blind side of the overpass other than the line of cars that Moore came upon over the top of the hill in the exit lane to Wayside. Moore's front-seat passenger, Jesse McGraw, an EMT, testified that Moore was driving carefully before the accident and that neither Jordan nor Moore was at fault.

Moore acknowledged that it would take at least 100 feet to stop his cab at 40 miles per hour, and he testified that he was probably following the car in front of him too closely. Moreover, the record reflects that he received a citation for "failure to control speed." However, the officer who saw the accident and cited Moore for failing to control his speed testified that he did not measure the skid marks or the point of impact of the vehicles and did not know what distance separated Moore's and Jordan's vehicles; rather, the evidence of Moore's failure to control speed was "[t]he evidence of him striking the stopped vehicle." Thus, I would conclude there was a fact question as to whether Moore was driving negligently under the conditions existing before the emergency situation arose and thus as to whether his own negligence proximately caused the accident.

Jordan and the majority rely on Priest v. Meyers, 598 S.W.2d 359, 363-64 (Tex. App.--Houston [14th Dist] 1980, no writ), and Deviney v. McLendon, 496 S.W.2d 161, 166 (Tex. App.--Beaumont 1973, writ ref'd n.r.e.), as support for the contention that the submitted instruction was improper because of Moore's negligence prior to the emergency. These cases are both distinguishable. In Priest, the driver who struck the car directly in front of him was looking back over his shoulder at the time of impact. 598 S.W.2d at 361. In Deviney, the driver was entering a freeway ramp when he changed lanes and hit the car directly in front of him in the lane into which he had he moved. 496 S.W.2d at 163. In both Priest and Deviney, the evidence established that the drivers failed to keep a proper lookout, and there was nothing to suggest that their forward view was in any way obstructed.

Here, in contrast, Moore had no visual cues to warn him that he was about to encounter a line of stopped cars--he was cresting a blind overpass and saw no brake lights as he did so. Nor does the evidence establish as a matter of law that he was following the car in front of him too closely for the traffic conditions that existed prior to his cresting the hill. See DeLeon, 933 S.W.2d at 294 (concluding sudden emergency doctrine was inapplicable in cases like Deviney and Priest when defendant's deemed negligence prior to emergency caused collision, but sudden emergency instruction was not error when fact issue existed as to defendant's negligence in failing to maintain safe distance prior to emergency). Because the record contains conflicting evidence as to whether Moore was driving too closely to the vehicle in front to stop safely before the emergency arose, "considering the speed of the vehicles, traffic, and the conditions of the highway," I would hold that Deviney and Priest do not apply.

(3) Ordinary Prudence Under Emergency Conditions

The undisputed evidence establishes that Moore acted after the emergency arose as a person of ordinary prudence would have acted under the same or similar circumstances. Moore and McGraw both testified that the line of stopped cars was so close when Jordan crested the hill that evasive action was necessary. Jordan likewise admitted that evasive action to avoid a collision is necessary when a driver comes over an overpass and finds traffic stopped in his lane. The undisputed evidence establishes that when Moore came over the overpass in the exit lane and saw the stopped cars directly in front of him he immediately took the necessary evasive action--swerving to the right into the emergency lane to avoid hitting the stopped cars in front of him or the traffic in the left-hand lane, shifting down and riding the guard rail to slow his rig as he traveled past the cars in the exit lane, and attempting to take advantage of an opening between Jordan's vehicle and the car in front of her when the emergency lane merged into Jordan's lane, rather than heading over the embankment. Nevertheless, Moore hit Jordan's car.

In sum, I would conclude, as the panel did in its original opinion issued May 19, 2005, that there is evidence in the record from which the jury could reasonably have inferred that (1) the line of stopped cars on the blind side of the overpass created a sudden and unexpected emergency situation that to a reasonable person would have required immediate action without time for deliberation; (2) the collision was not proximately caused by Moore's negligence prior to the emergency situation; and (3) Moore's actions after the emergency situation arose did not differ from those of a person of ordinary prudence under the same or similar circumstances.

Accordingly, I would hold that there was evidence of probative value to support submission of the sudden emergency instruction to the jury and that the trial court did not err in submitting the instruction.

For this reason, and for the reasons set out in the original May 15, 2005 opinion, I would affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.

Justice Keyes, dissenting.

1.