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

OPINION ON REHEARING

Appellant, Maethenia Jordan, moved for rehearing en banc of our opinion of May 19, 2005. See Tex. R. App. P. 49.7. Appellees, Sava, Inc. and John D. Moore, filed a response to the motion. We grant the motion for rehearing, withdraw our opinion and judgment of May 19, 2005, and issue this opinion and accompanying judgment in their stead. ⁽¹⁾

Jordan appeals a take-nothing judgment rendered in her personal injury suit against Sava, Inc. and Moore. In seven issues, Jordan contends (1) the trial court erred in denying her challenges for cause of two jurors who admitted bias; (2) everyday rush-hour traffic in Houston does not constitute a "sudden emergency" justifying a jury instruction; (3) counsel for Moore and Sava, Inc. improperly embellished and mischaracterized the court's charge; (4) an "eggshell skull" instruction should have been given to the jury; (5) the trial court should not have rendered a directed verdict for Sava, Inc.; (6) the jury's answer to question one, regarding Moore's liability, was wrong as a matter of law and was against the great weight and preponderance of the evidence; and (7) the jury's answer to question two, regarding damages, was against the great weight and preponderance of the evidence. We conclude that the trial court erred by including a sudden emergency instruction in the jury charge because the undisputed evidence shows that Moore's actions before encountering stopped traffic on the freeway demonstrated a failure to use ordinary care. We further conclude that the trial court's error was harmful. We thus need not address Jordan's remaining issues. We reverse and remand.

Facts

On September 20, 1999, Moore was driving an 18-wheel tractor-trailer rig, without a trailer, on Loop 610 North in Houston during rush-hour traffic. The speed limits were a minimum of 40 and a maximum of 55 miles per hour; Moore's speed was approximately 45 mph. As Moore crested a hill just before the Wayside exit, he came upon a motionless line of cars in his lane, waiting to exit. The car directly in front of Moore swerved into the left lane; Moore swerved into the emergency lane to the right of the exit lane. Moore shifted down and intentionally "rode the guardrail" as he proceeded, to augment his attempt to bring the rig to a stop, but drove over some grass on the side of the road that caused the rig to skid. Moore passed as many as fifteen cars before the emergency lane merged into the exit lane and ended. On the right of the emergency lane was a drop-off over an embankment. When he realized he was running out of room as the emergency lane ended, Moore thought he could steer through an opening of ten to twelve feet between Jordan's Ford Expedition and the car behind her. Instead, his tractor-trailer cab collided with the rear end of Jordan's Expedition, spinning the Expedition 180 degrees. The tractor trailer traveled across the freeway and came to rest against the divider between the oncoming lanes of traffic.

Moore and his front-seat passenger, Jesse McGraw, an EMT, checked on Jordan and her passenger and called EMS. Jordan was taken to a local hospital by ambulance. She had injured her back, resulting in a number of physical and practical impairments to her life. A police officer who happened to be traveling along this route stopped to investigate the accident. He issued Moore a citation for "failure to control speed," but did not cite him for speeding.

Jordan sued Moore for negligence and sued the company that owned the tractor-trailer, Sava, Inc., for, among other causes of action, negligent entrustment under the doctrine of respondeat superior. After a jury trial in which the jury determined that Moore was not liable, the trial court rendered a take-nothing judgment for Jordan.

In her second issue, Jordan contends that the trial court erred in submitting a "sudden emergency" instruction to the jury over her objection because Moore was negligent in not maintaining a safe following distance between his truck and the car in front of him immediately before the collision.

A trial court has broad discretion in determining its instructions to the jury. Evans v. Allwhite, 111 S.W.3d 282, 284 (Tex. App.--Texarkana 2003, no pet.); Francis v. Cogdell, 803 S.W.2d 868, 871 (Tex. App.--Houston [1st Dist.] 1991, no writ). 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. DeLeon v. Pickens, 933 S.W.2d 286, 290 (Tex. App.--Corpus Christi 1996, writ denied); Charter Oak Fire Ins. Co. v. Taylor, 658 S.W.2d 227, 229 (Tex. App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.).

"The purpose of [a sudden emergency instruction] is to advise the jurors, in the 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[.]" Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 432 (Tex. 2005). If there is any 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); see Francis, 803 S.W.2d at 871 (holding that if there is "any support in the evidence for an instruction, the instruction is properly given") (emphasis in original).

The sudden emergency instruction submitted to the jury in this case 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. Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995). For an instruction on sudden emergency to be proper, however, the evidence must support the elements of the sudden emergency defense: (1) an emergency situation arose suddenly; (2) the emergency was unexpected; (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. Evans, 111 S.W.3d at 286; see also Thomas, 895 S.W.2d at 360; Priest v. Myers, 598 S.W.2d 359, 363 (Tex. App.--Houston [14th Dist.] 1980, no pet.); see also Dillard, 157 S.W.3d at 432 n.4. Thus, to determine whether a sudden emergency instruction was proper here, we must determine whether the evidence raised a fact issue for the jury as to each of the elements of sudden emergency. If not, a jury finding of sudden emergency was precluded as a matter of law, and the instruction was improper.

A. Defendant's Negligence and Proximate Cause

To justify submission of a sudden emergency instruction, evidence in the record must show 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. The sudden emergency doctrine does not apply in a rear-end collision case in which the defendant is "deemed negligent" for failing to maintain a proper distance from the vehicle in front. DeLeon, 933 S.W.2d at 294; see also Oldham, 864 S.W.2d at 127. When the defendant fails to maintain a proper distance from the vehicle in front of him, "the alleged 'emergency' is created by the defendant's conduct which occurred before the emergency [arose] rather than after." DeLeon, 933 S.W.2d at 294; see also Oldham, 864 S.W.2d at 126 (stating that sudden emergency instruction is not available when "party attempting to invoke the doctrine is negligent before the emergency arises").

Initially, the jury was instructed on negligence and proximate cause as follows:

"Negligence," means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

"Ordinary care" means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.

"Proximate cause" means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.

There may be more than one proximate cause of an event, but if an act or omission of any person not a party to the suit was the "sole proximate cause" of an occurrence, then no act or omission of any other person could have been a proximate cause.

This language follows the Texas Pattern Jury Charges on negligence, proximate cause and sole proximate cause. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges PJC 2.1, 2.4, 3.2 (2003) (emphasis in original). Next, the jury was given the instruction on sudden emergency. Jury Question 1 asked whether appellant's negligence proximately caused "the occurrence in question." The jury responded, "No." We must determine, therefore, whether the "sudden emergency" instruction was erroneously included in the court's charge under the facts shown by the record.

Jordan relies on Priest v. Meyers, 598 S.W.2d 359, 363-64 (Tex. Civ. 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.), in support of her contention that the submitted instruction was improper because of Moore's negligence in following the car in front of him too closely before the emergency. In Priest, a rear-end collision case, the jury found that the defendant "failed to maintain an assured clear distance between his vehicle and the [plaintiff's] vehicle, but that such failure was not a proximate cause of the collision." Priest, 598 S.W.2d at 360. The plaintiff had been traveling on Highway 59 in Houston during rush hour and almost stopped because traffic ahead was congested and had come to a standstill. Id. at 362. At the same time, the defendant looked over his shoulder in anticipation of changing lanes and subsequently rear-ended the plaintiff. Id. The appellate court held that the trial court erred in giving a sudden emergency instruction because "as a matter of law the failure of the defendant to maintain an assured clear distance between his car and that of the plaintiffs was a proximate cause of the collision." Id. The court stated,

[A]ny reasonably prudent person should have foreseen that in late afternoon, rush-hour, going-home traffic on a crowded freeway in Houston, traffic ahead for some reason might have to make a sudden or quicker than normal stop and that, under those circumstances, a collision would occur if he did not exercise ordinary care to maintain a safe distance between his car and the one just ahead.

Id. at 363.

In Deviney, the defendant had been traveling along the outside lane of Loop 410, a controlled access road in San Antonio with two eastbound lanes. Deviney, 496 S.W.2d at 163. Another vehicle then entered the outside lane from the service road, and the defendant switched lanes to avoid hitting the oncoming car. Id. He subsequently discovered the plaintiff's vehicle stopped in front of him, but was unable to stop and thus rear-ended the plaintiff's car. Id. The court of appeals noted that a sudden emergency instruction would be appropriate when raised by the evidence, "since '[the instruction] is invoked to lower the legal standard of care which a party must exercise to the point where conduct which otherwise might be regarded as negligent or contributorily negligent is not so regarded.'" Id. at 166 (quoting Yarborough v. Berner, 467 S.W.2d 188, 192 (Tex. 1971)). The court held, however, that no evidence raised the issue of sudden emergency because the condition--that of the plaintiff stopping in the inner lane--did not arise suddenly and unexpectedly. Id.

The record shows the following undisputed evidence that Moore was following the vehicle in front of him too closely before the collision: ⁽²⁾

• •Moore came over the hill, traveling at approximately 35 to 50 miles per hour, while following another car.

• •When the car that Moore was following and Moore's truck crested the hill, they slammed on their brakes. Moore was forced to drive onto the shoulder of the road to avoid hitting the car in front of him. Moore stated,

He slammed on his brakes and he went to the left. And I slammed my brake lights and I hit the shoulder. If I had went to the left, I would have run over him. If I would have stayed in that lane, I would have ran right in the back of the car, the last car.

• •Moore was between two and three car lengths away from the car in front of him when they crested the hill, traveling between 40 and 45 miles per hour.

• •Moore's truck took between 120 and 250 feet to stop when it was traveling without a trailer at 40 miles per hour.

• •250 feet is the equivalent of 10 to 12 car lengths, whereas Moore was only two to three car lengths away from the car in front of him when they crested the hill.

• •Moore's truck had a long stopping distance.

• •Moore was not following the car in front of him at a "safe following distance."

• •Moore admitted that if he had veered to the left to avoid hitting the traffic on the other side of the hill, he would have run over the car in front of him "[b]ecause I was following too close, probably, and I wasn't--I would not have been able to stop as fast as he would."

Furthermore, the collision occurred during rush hour, and Moore was familiar with "normal traffic situations in Houston" and was familiar with that part of Loop 610. ⁽³⁾

We conclude that as a matter of law, Moore's failure to maintain an assured clear distance between his truck and the car in front of him before they crested the hill was a proximate cause of the collision, because the evidence shows both that Moore was negligent by following the car in front of him too closely before they came upon the stopped traffic and that, had Moore not been following the car in front of him too closely, he could have gone to the left and avoided hitting Jordan. ⁽⁴⁾ See DeLeon, 933 S.W.2d at 294; Oldham, 864 S.W.2d at 127; Priest, 598 S.W.2d at 362. Specifically, Moore should have foreseen that "in late afternoon, rush-hour, going-home traffic on a crowded freeway in Houston," the car in front of him might be forced to make a sudden stop, and a collision might occur "if he did not exercise ordinary care to maintain a safe distance between" his truck and the car just ahead of him. Priest, 598 S.W.2d at 363. Thus, Moore is "deemed negligent" for his failure to maintain a proper distance from the vehicle in front before they crested the hill. DeLeon, 933 S.W.2d at 294; see also Oldham, 864 S.W.2d at 127. Because we conclude that Moore's following too closely was a proximate cause of the collision, we need not address the other three elements of the sudden emergency defense. ⁽⁵⁾ We therefore conclude that the trial court erred in submitting the sudden emergency instruction.

B. Harmful Error

An incorrect jury instruction will not warrant reversal unless it probably caused the rendition of an improper judgment or error in the charge prevents the appellant from properly presenting its case to the court of appeals. See Tex. R. App. P. 44.1 (a)(1)-(2). We review the entire record to determine whether the instruction amounted to reversible error. See Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001).

Here, as set forth above, the undisputed evidence shows that Moore was following the car in front of him too closely immediately before the collision. Despite this testimony, Moore and Sava, Inc. did not introduce any evidence to contradict the evidence presented by Jordan that Moore was following too closely.

Moreover, the record before us suggests that the jury relied on the sudden emergency instruction in answering "No" to the negligence liability question. Although neither party disputed that Moore followed the car too closely in front of him before the accident, each party characterized Moore's conduct differently. Jordan described Moore's conduct as negligence. Moore, on the other hand, referred to his conduct as an "accident" or an "emergency situation." ⁽⁶⁾ Moore's trial counsel emphasized the sudden emergency theory in closing arguments to the jury, stating at one point as follows:

If this [sudden emergency] instruction wasn't in here, then I wouldn't be talking to you about an emergency. It would not be permitted for me to talk about an emergency, if it wasn't proper. The reason it is proper is because the fact situation is exactly what we are talking about as motorists. This could apply to an accident or any other type of an emergency situation. He is confronted by an emergency arising suddenly and unexpectedly. That is true. Absolutely, it is true. He could not see what the traffic conditions were like over the hill. And it wasn't caused by anything that he did.

The record demonstrates that Moore and Sava persistently injected the sudden emergency theory during trial. The jury's consideration of this theory was thus likely to be influenced by the erroneous sudden emergency instruction. See Priest, 598 S.W.2d at 364 (holding erroneous sudden emergency instruction harmful when evidence at trial established as matter of law that defendant's failure to maintain "assured clear distance" between his car and another was proximate cause of collision). Although we have noted that the jury probably relied on the sudden emergency instruction, we cannot, however, know for certain whether this occurred.

An inferential rebuttal theory, such as the sudden emergency theory, presents an inconsistent theory from the claim relied on by the opposing party for recovery or relief. Urista v. Bed, Bath, & Beyond, Inc., 132 S.W.3d 517, 523 (Tex. App.--Houston [1st Dist.] 2004, pet. granted). The single, broad-form liability question here inquired, "Did the negligence, if any, of John D. Moore proximately cause the occurrence in question?" In addition to defining "negligence," the same question instructed the jury that,

"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 single, broad-form question thus included the two following theories: negligence and "sudden emergency." See id. No one disputes that the first theory was proper. As addressed above, the second theory was error.

Because our system of justice compels that parties be judged by a jury that has been properly instructed in the law, harmful error occurs when (1) a single, broad-form liability question erroneously commingles valid and invalid theories, (2) the appellant objects timely and specifically, and (3) it cannot be determined whether the erroneously submitted theory formed the sole basis of the jury's finding. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000); Urista, 132 S.W.3d at 523. With regard to the third prong of this analysis, the supreme court stated as follows:

[T]he best the [reviewing] court can do is to determine that some evidence could have supported the jury's conclusion on a legally valid theory. To hold this error harmless would allow a defendant to be held liable without a judicial determination that a factfinder actually found that the defendant should be held liable on proper, legal grounds.

Casteel, 22 S.W.3d at 388. Given these circumstances, the supreme court concluded that the trial court's error probably prevented the appealing party from properly presenting his case to the court of appeals. Casteel, 22 S.W.3d at 388 (citing Tex. R. App. P. 61.1, 44.1(a)); Urista, 132 S.W.3d at 523.

Here, the single, broad-form liability question erroneously commingled a valid negligence theory with an erroneous inferential rebuttal instruction that injected an invalid theory of sudden emergency. Although Jordan objected timely and specifically, the trial court overruled her objection. Although we have concluded it likely, on reviewing the record, that the erroneous instruction formed the sole basis for the jury's finding that Moore was not negligent, we cannot determine this conclusively. See Urista, 132 S.W.3d at 523. Therefore, the trial court's error in including the instruction probably prevented Jordan from presenting her case to this Court, and remand for a new trial is proper. See Casteel, 22 S.W.3d at 390; Urista, 132 S.W.3d at 523; Tex. R. App. P. 44.1(a)(2).

We sustain Jordan's second issue. Because of our disposition of this issue, we need not address Jordan's remaining issues.

We reverse the judgment of the trial court and remand the cause for a new trial.

Elsa R. Alcala

Justice

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

1. We therefore dismiss as moot the motion for en banc reconsideration.

a man came up over the top of the hill, not knowing what was on the other side, going at a speed limit, crests the hill and he is confronted with an emergency situation, and he does everything that he could do and there is nowhere to stop, and he hit someone.