Jordan v. Sava, Inc.

• Decision Date: 12 April 2007
• Docket Number: No. 01-03-00554-CV.,01-03-00554-CV.
• Citation: 222 S.W.3d 840
• Parties: Maethenia JORDAN, Appellant, v. SAVA, INC. and John D. Moore, Appellees.
• Court: Texas Court of Appeals

222 S.W.3d 840

Maethenia JORDAN, Appellant, v. SAVA, INC. and John D. Moore, Appellees.

No. 01-03-00554-CV.

Court of Appeals of Texas, Houston (1st Dist.).

April 12, 2007.

Rehearing Overruled April 12, 2007.

Charles Thomas Schmidt, Jenifer C. Melby, Schmidt & Hoffer, L.L.P., Houston, TX, for Appellant.

Jack McKinley, Robert L. Ramey, Ramey, Chandler, McKinley & Zito, P.C., Houston, TX, for Appellees.

Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.

OPINION ON REHEARING

EVELYN V. KEYES, Justice.

On December 14, 2006 we issued an opinion on rehearing that granted the motion for rehearing of our opinion of May 19, 2005, filed by appellant, Maethenia Jordan. See TEX.R.APP. P. 49.7.¹ A dissenting opinion was also issued on December 14, 2006. Appellees, Sava, Inc. and John D. Moore, filed a response to the motion for rehearing. On January 5, 2007, we sua sponte withdrew the December 14, 2006 opinion on rehearing, dissenting opinion, and accompanying judgment to consider this case in light of Bed, Bath & Beyond, Inc. v. Urista, which was recently decided by the Texas Supreme Court. See 211 S.W.3d 753 (Tex.2006). We now deny the motion for rehearing, withdraw our opinion and judgment of May 19, 2005, and issue this opinion on rehearing and accompanying judgment in their stead.

Appellant, Maethenia Jordan, appeals a take-nothing judgment rendered in her personal injury suit against appellees, Sava, Inc. and John D. 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) Moore's and Sava, Inc.'s counsel 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 affirm.

Facts

On September 20, 1999, Moore was driving a tractor-trailer rig, minus the trailer, on Loop 610 North in Houston. The speed limits were a minimum of 40 and a maximum of 55 mph; Moore's speed was approximately 45 mph.² As Moore crested a hill just before the Wayside exit, he came upon a motionless line of cars in the same 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 he drove over some grass on the side of the road that caused the rig to skid slightly. Moore passed as many as eight to 15 cars before the emergency lane merged into the exit lane and ended. To the right of the emergency lane was a drop-off over an embankment. When Moore realized he was running out of room as the emergency lane merged with Jordan's lane, Moore thought he could steer through an opening of 10 to 12 feet between Jordan's Ford Expedition and the car behind it. Instead, his tractor-trailer cab collided with the rear end of Jordan's Expedition, spinning the Expedition 180 degrees before traveling across the freeway and coming to rest against the divider between the oncoming lanes of traffic.³

Moore and his front-seat passenger, Jesse McGraw, an emergency medical technician (EMT), checked on Jordan and her passenger and called Emergency Medical Services (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 with prejudice.

Challenges to Venire Members

In her first issue, Jordan contends the trial court erred by denying her challenges for cause to two jurors who she contends were biased in favor of Moore, thereby forcing her to use peremptory strikes on these jurors instead of on two other jurors whom she found objectionable.

Standard of Review

A person is disqualified to serve as a petit juror if he has a prejudice for or against a party in the case. TEX. GOV'T CODE ANN. § 62.105(4) (Vernon 2005). A person may be disqualified if the prejudice extends to the subject matter of the litigation, including damages for pain and suffering. See Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963); see also Houghton v. Port Terminal R.R. Ass'n, 999 S.W.2d 39, 45-46 (Tex.App.-Houston [14th Dist.] 1999, no pet.). We review a trial court's decision to disqualify a panel member under an abuse of discretion standard. Buls v. Fuselier, 55 S.W.3d 204, 210 (Tex.App.-Texarkana 2001, no pet.). A trial court abuses its discretion in refusing to disqualify a venire member only if the record shows that the venire member was not able or willing to set aside personal beliefs to act impartially. Id. at 210. A trial court's overruling a challenge for cause carries with it an implied finding that bias does not exist to the degree that it constitutes disqualification. Id. at 209-10. Thus, when the evidence does not conclusively establish a venire member's disqualification, we consider the evidence in the light most favorable to the trial court's ruling. Id. at 210.

Venire Member Number 17

During voir dire, venire member 17 expressed reservations about awarding a plaintiff damages for pain and suffering. The following colloquy took place:

[Counsel]: [I]n terms of an award above and beyond just medical bills, whether they have seen a doctor or not, would you have a hard time doing that?

[No. 17]: Yes.

[Counsel]: [G]iven that you feel that way . . . do you think you could be an impartial juror, given the fact that you have those beliefs when at the end of this trial you will be asked—there will be a blank for pain and suffering and mental anguish.

[No. 17]: That is pretty tough. I haven't heard the case yet. Yes, I think I would have trouble. Would it affect me? Yes, because that is just the way I believe. That is the way I would feel.

Shortly thereafter, the trial court individually questioned this venire member, as follows:

[Court]: I think what we are dealing with here is the law allows the prevailing party who has suffered a personal injury in a proper case to recover their medical bills from a party that caused them that injury if certain findings are made. Assuming all of that, what he is asking you about is one of the things that the law allows you to recover. You can recover your medical bills, you can recover lost wages if you miss work because you were laid up. But if you suffer pain, the law allows you to be compensated in the proper case. If you have suffered mental anguish, the law allows you to be compensated for that in the proper case. The question is: can you award that in the proper case or can you sit here and say, I believe in awarding A, B, and C, but I don't believe in D?

[No. 17]: I think I would follow the instructions. Would it be real difficult for me to say, yes, I believe someone needs money for pain and suffering? Probably that would be a difficult thing. I am a pretty reasonable person. I just . . .

[Counsel]: There is nothing wrong with that.

[No. 17]: It is just really I can see the wages and all that stuff. I have dealt with my father who was a doctor. It seems like sometimes people are just getting a little out of hand with prices and that is one area that I can see would get out of hand because there is no way to measure it.

[Counsel]: Are you going to penalize Ms. Jordan for it?

[No. 17]: No, I won't penalize her.

After the trial court denied Jordan's challenge for cause, Jordan used a peremptory strike to exclude venire member 17 from the jury.

Venire member 17's replies to the trial court's inquiries do not demonstrate that she would not have been able to set aside her personal beliefs to act impartially, thus penalizing Jordan. Accordingly, the trial court did not abuse its discretion in denying the challenge for cause to venire member 17. See Buls, 55 S.W.3d at 210 (holding that, trial court abuses discretion in refusing to disqualify only when record shows venire member unable or unwilling to act impartially); see also Sosa v. Cardenas, 20 S.W.3d 8, 11-13 (Tex.App.-San Antonio 2000, no pet.) (affirming trial court's denial of challenges for cause of several jurors who indicated bias against awarding damages for mental anguish, but agreed it would depend on evidence presented, and jurors did not indicate they would not follow court's instructions).

Venire Member Number 20

In regard to venire member 20, there was little in the record to reflect her alleged bias. The following colloquy is the only one that occurred:

[Counsel]: You raised your hand.

[No. 20]: I think everybody suffers on a daily basis on pain and they don't get compensation.

[Counsel]: What if you had severe pain that prevented you from going to work?

[No. 20]: Well, you have your medical and everything is paid for. Pain and suffering, somebody is giving you something for pain and suffering, and therapy. Not really. I don't think that pain and suffering would be something that you would get unless it was a child or grandma or somebody that was with you and it is...