Thomas v. Uzoka

• Decision Date: 28 May 2009
• Docket Number: No. 14-08-00182-CV.,14-08-00182-CV.
• Citation: 290 S.W.3d 437
• Parties: Lakeisha THOMAS, Appellant, v. Ugochi UZOKA, Appellee.
• Court: Texas Court of Appeals

290 S.W.3d 437

Lakeisha THOMAS, Appellant, v. Ugochi UZOKA, Appellee.

No. 14-08-00182-CV.

Court of Appeals of Texas, Houston (14th Dist.).

May 28, 2009.

Rehearing Overruled July 30, 2009.

Kimberley M. Spurlock, Carrie Holman Westbrook, Humble, Diana L. Faust, Dallas, for appellant.

Eric D. Nielsen, Andy Taylor, for appellee.

Panel consists of Justices YATES and SULLIVAN, and Senior Justice HUDSON.^*

OPINION

KENT C. SULLIVAN, Justice.

This appeal arises from a jury verdict in favor of appellee, Ugochi Uzoka ("Ugochi"), whose husband Onyebu Christopher Ozuka ("Chris") died in a head-on automobile collision. The driver of the other vehicle involved in the accident, appellant Lakeisha Thomas ("Thomas"), pleaded guilty to criminal charges arising from the accident but now brings four issues to challenge the jury's verdict in this corresponding civil action. First, she contends the trial court should have instructed the jury that Chris's non-use of a seat belt amounted to negligence per se. Second, she claims that the expert opinions of the two investigating police officers are scientifically unreliable and should have been excluded. Third, she challenges the factual and legal sufficiency of the evidence supporting the jury's findings that she was negligent and that her conduct was ninety-eight percent responsible for Chris's death. Fourth, she argues that the damages awarded by the jury are excessive. We find no merit in these issues. Therefore, we affirm the judgment.

BACKGROUND

The automobile accident occurred on May 14, 2004. That afternoon, Chris, a taxi-cab driver with Yellow Cab, was proceeding south on Elysian, a four-lane road that uses an eight-inch-high concrete median to divide the two northbound and two southbound lanes. Thomas was driving in the opposite direction, northbound, in a Nissan pickup truck. Allegedly, Thomas's truck came over the concrete median into oncoming traffic, causing a head-on collision with Chris's taxi. Chris, who was not wearing a seat belt, died at the scene from a blunt-force impact to the chest. Thomas was taken to the hospital.

The accident was investigated by the Houston Police Department, and Thomas was charged with, and pleaded guilty to, criminally negligent homicide. She also stipulated to the truth of the State's allegations that she "unlawfully ... cause[d] the death of Onyebu [Chris] Uzoka ... by criminal negligence, namely by failing to control speed, failing to maintain a single lane of traffic and exceeding the posted speed limit."¹

Chris's surviving widow, Ugochi Uzoka, sued Thomas for wrongful death. She alleged that Thomas caused the collision by negligently swerving into oncoming traffic. She further accused Thomas of speeding. Thomas denied both allegations, instead claiming that Chris's taxi had crossed the median. She also asserted that, by failing to wear his seat belt, Chris was negligent.

The case proceeded to a jury trial in October 2007. Ugochi produced the expert testimony of two officers with the Houston Police Department, both of whom supported Ugochi's version of the facts. Officer Douglas Ertons ("Ertons"), who conducted the accident investigation, opined that Thomas's vehicle caused the impact by swerving in front of Chris's taxi. Officer Rolando Saenz ("Saenz"), an expert in the field of accident reconstruction, then testified that, according to his calculations, Thomas was driving sixty-eight miles per hour at the time of the collision. The posted speed limit was forty-five miles per hour. Under cross-examination, Thomas admitted that, arising out of this event, she pleaded guilty to a charge of criminally negligent homicide and that she stipulated to the State's specific allegations that she was speeding and that she failed to maintain a single lane of traffic.

Over Ugochi's objection, the trial court submitted Chris's comparative negligence to the jury and permitted Thomas to argue that the failure to wear a seat belt amounted to negligence. However, the court rejected a proposed instruction, requested by Thomas, indicating that the non-use of a seat belt constitutes negligence per se.

In its verdict, the jury found both drivers' negligence proximately caused Chris's death. The jury apportioned proportionate responsibility at ninety-eight percent for Thomas and two percent for Chris. To compensate Ugochi for past and future pecuniary loss, mental anguish, and loss of companionship and society, the jury awarded $810,000 in damages. Thomas has timely appealed the judgment.

NEGLIGENCE PER SE

Appellant's second issue, which we address first, deals with Chris's failure to wear a seat belt, in violation of section 545.413 of the Texas Transportation Code. See Tex. Transp. Code Ann. § 545.413(a) (Vernon Supp. 2008). Thomas contends that Chris's non-use of a safety belt amounted to negligence per se because (1) Chris was in the class of persons that section 545.413(a) is designed to protect, and (2) his injury was of a type that the statute was intended to prevent. See Perry v. S.N., 973 S.W.2d 301, 305 (Tex.1998). Therefore, Thomas asked the trial court to submit the following jury instruction: "The law requires an adult to wear a safety belt while in the front seat of a vehicle during its operation. A failure to comply with this law is negligence in itself."

The trial court refused the requested instruction but submitted Chris's comparative negligence under a broad-form question asking whether the negligence of either party proximately caused Chris's death. Although the jury found Chris negligent, Thomas still appeals the omission of the requested negligence per se instruction. However, appellant has not shown that the omission probably caused the rendition of an improper judgment. Therefore, we will overrule her second issue.

A. Standard of Review

A trial court must submit to the jury any instructions that are proper and necessary to enable the jury to render a verdict. Tex.R. Civ. P. 277. An instruction is proper if it might assist the jury in answering the submitted questions, correctly states the law,² and enjoys support in the pleadings and evidence. Rigdon Marine Corp. v. Roberts, 270 S.W.3d 220, 228 (Tex.App.-Texarkana 2008, pet. denied). However, the jury should not be burdened with surplus instructions, even those that accurately state the law. Arocha v. State Farm Mut. Auto. Ins. Co., 203 S.W.3d 443, 445 (Tex.App.-Houston [14th Dist.] 2006, no pet.).

A trial court has considerable discretion to submit necessary and proper jury instructions. See id.; Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470 (Tex.App.-San Antonio 1998, pet. denied). Therefore, we review a trial court's decision to refuse a particular instruction under an abuse of discretion standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006). When a trial court refuses to submit a requested instruction on an issue raised by the pleadings and evidence, we are to determine whether the instruction was reasonably necessary to enable the jury to render a proper verdict. Id. If so, the refusal to submit a requested instruction will constitute reversible error only if the omission probably caused the rendition of an improper judgment. Id.

B. Harm Analysis

We open our discussion with a brief overview of negligence per se and, when submitted, its effect on the jury charge. Generally, negligence per se is a common-law tort concept in which a person's expected standard of conduct is defined by a statute instead of the reasonably-prudent-person test usually found in "pure" common-law negligence claims. See Smith v. Merritt, 940 S.W.2d 602, 607 (Tex.1997). When negligence per se is submitted, the jury is not asked to decide whether the person acted as a reasonably prudent person would have acted under the same or similar circumstances, because the statute itself identifies the appropriate standard of conduct as a matter of law. Durham v. Zarcades, 270 S.W.3d 708, 718 (Tex.App.-Fort Worth 2008, no pet.); Goode v. Bauer, 109 S.W.3d 788, 791 (Tex. App.-Corpus Christi 2003, pet. denied) ("The effect of declaring conduct as negligence per se is that the conduct constitutes negligence as a matter of law."). Instead, unless an excuse for the statutory violation is proffered, the jury need decide only (1) whether the statute was violated and, if so, (2) whether the statutory violation was a proximate cause of the injury. Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex.1979); Durham, 270 S.W.3d at 719.

Negligence per se is not a separate cause of action that exists independently of a common-law negligence cause of action. Zavala v. Trujillo, 883 S.W.2d 242, 246 (Tex.App.-El Paso 1994, writ denied). Rather, negligence per se is merely one method of proving a breach of duty, a requisite element of any negligence cause of action. Reynolds v. Murphy, 188 S.W.3d 252, 267 n. 20 (Tex.App.-Fort Worth 2006, pet. denied) (quoting Zavala, 883 S.W.2d at 246). Here, while that specific option was not available to Thomas, the trial court granted her request to submit Chris's non-use of a seat belt through a broad-form negligence question and, in fact, the jury found Chris negligent. Thus, because the requested instruction would not have produced a different outcome, we cannot conclude that Thomas was harmed by the omission of the requested instruction.³ See Mieth v. Ranchquest, Inc., 177 S.W.3d 296, 305 (Tex. App.-Houston [1st Dist.] 2005, no pet.) ("[T]he trial court abused its discretion by refusing to submit an instruction on negligence per se. However, because the jury found [the defendant] negligent under the common-law definition, the trial court's error was harmless.").⁴

Thomas responds that she was harmed by the omission because, had the jury known that the non-use of a safety belt is prohibited by statute, it might have assigned a higher percentage of responsibility to Chris, thereby reducing the amount of Thomas's liability for the damages...