VIA Metro. Transit v. Garcia

• Decision Date: 05 December 2012
• Docket Number: No. 04–11–00459–CV.,04–11–00459–CV.
• Citation: 397 S.W.3d 702
• Parties: VIA METROPOLITAN TRANSIT, Appellant v. Gerald Anthony GARCIA, Appellee.
• Court: Texas Court of Appeals

397 S.W.3d 702

VIA METROPOLITAN TRANSIT, Appellant

v.Gerald Anthony GARCIA, Appellee.

No. 04–11–00459–CV.

Court of Appeals of Texas, San Antonio.

Dec. 5, 2012.

Nissa M. Dunn, Law Offices of Nissa Dunn, P.C., San Antonio, TX, for Appellant.

John Milano, Jr., Law Office of John Milano, Jr., Richardson, TX, Arthur Stanley Bernstein, LeGrand & Bernstein, P.C., Mark Kosanovich, Fitzpatrick & Kosanovich, P.C., San Antonio, TX, for Appellee.

Sitting: REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice.

OPINION

Opinion by: REBECCA SIMMONS, Justice.

Gerald Anthony Garcia brought a negligence action against VIA Metropolitan Transit. The jury found VIA negligent and awarded damages to Garcia. In a single issue, VIA contends the trial court erred in refusing to submit to the jury its requested questions on Garcia's negligence and proportionate responsibility. We affirm the trial court's judgment.

BACKGROUND

On October 5, 2004, Garcia, a motorcycle traffic officer with the San Antonio Police Department, responded to a request for assistance from an officer who had been hit by a vehicle. Officer Garcia testified that when he arrived at the accident scene at the intersection of Basse Road and Blanco Road, there was heavy traffic congestion. In an effort to relieve the congestion and to prevent further accidents, Officer Garcia began directing traffic.

After several minutes, Garcia observed a VIA van stopped in a southbound lane of Blanco Road. Garcia made eye contact with the van driver, Edward Bates, and the driver acknowledged him. Garcia then “motioned for the VIA [van] to proceed southbound.” The VIA van began moving southbound as directed by Garcia. Both Garcia and Bates agree that while the van was still transiting the intersection, Garcia turned his head (not his body) to look at the drivers in the northbound lanes, and he directed them to proceed northbound. While Garcia's head was turned towards the northbound traffic, the van struck Garcia with its mirror. Bates claimed he was traveling at approximately 5–10 miles per hour when the mirror struck Officer Garcia in the left shoulder. The impact propelled Garcia several feet from where he stood. He fell to the ground and grabbed his shoulder in pain. Bates offered no explanation for the incident other than he did not see Garcia at the moment of impact.

Garcia sued VIA alleging the van operator's negligence proximately caused his injuries. Specifically, Garcia alleged the van operator was negligent in failing to (1) maintain a proper lookout, (2) apply the brakes in a timely manner, and (3) maneuver the van to avoid hitting Garcia. Citing section 544.007 of the Texas Transportation Code, Garcia also alleged the van operator was negligent per se in failing to yield the right-of-way to a pedestrian lawfully in an intersection. VIA generally denied Garcia's allegations, and asserted several defenses, including negligence by Garcia in failing to keep a proper lookout.

The case was tried to a jury. VIA asked the trial court to submit questions to the jury on Garcia's alleged negligence and proportionate responsibility, but the trial court refused. After deliberating, the jury found VIA's negligence proximately caused Garcia's injuries and found damages in the amount of $119,100.92. The trial court determined prejudgment interest to be approximately $30,507.00. However, based on the verdict and the parties' stipulations that VIA's liability was limited by the Texas Tort Claims Act, the trial court rendered judgment in favor of Garcia and awarded him $100,000.00 in actual damages, and any post-judgment interest accrued until paid. It taxed costs of court against VIA. VIA appealed.

Right to Jury Questions

In its sole issue on appeal, VIA contends the trial court erred by refusing to submit its requested jury questions regarding Garcia's negligence and his proportionate responsibility. VIA asserts there was evidence to support the requested submissions and that it submitted the requested questions in substantially correct form.

Garcia responds that VIA failed to produce any evidence of Garcia's negligence in part because there was no testimony concerning the standard of care of a traffic officer directing traffic or that Officer Garcia breached that standard of care. Furthermore, Garcia asserts that VIA's requested jury questions were not tendered in substantially correct form and were therefore properly refused.¹

Standards of Review

A trial court must submit to the jury the questions “which are raised by the written pleadings and the evidence.” Tex.R. Civ. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex.2002). The rule imposes “a substantive, nondiscretionary directive to trial courts [that requires] them to submit requested questions to the jury if the pleadings and any evidence support them.” City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 746 (Tex.App.-Fort Worth 2008, pet. dism'd) (citing Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992)). Accordingly, we review the trial court's refusal to submit questions de novo. Fin. Ins. Co. v. Ragsdale, 166 S.W.3d 922, 926 (Tex.App.-El Paso 2005, no pet.); see Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex.1992) (per curiam) (holding it is reversible error to deny submission of a question raised by the pleadings and the evidence).

In determining whether expert testimony is necessary, we also apply a de novo standard of review. See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex.2004).

Analysis

A. Traffic Officer's Duty and Standard of Care

To determine whether the trial court erred by refusing to submit the negligence and proportionate responsibility questions requested by VIA, we must examine the record for evidence of Garcia's negligence. See Elbaor, 845 S.W.2d at 243. To support the submission of the question of Garcia's negligence to the jury, VIA had to produce some evidence that (1) Garcia owed a legal duty to VIA; (2) Garcia breached that duty; and (3) damages proximately resulted from the breach. See id. (requiring some evidence to warrant submission of a question); Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 663 (Tex.1999) (Baker, J., concurring) (negligence elements). We turn then to the duty owed by Officer Garcia to look out for his safety and the appropriate standard of care owed to the public.

1. VIA's Argument

VIA contends Garcia had a duty to exercise ordinary care for his own safety while he was in the intersection. VIA points to testimony of an eyewitness that Garcia turned his head away from the VIA van before it hit him.² VIA asserts that the witness testimony is evidence that Garcia breached his duty when he failed to keep a proper lookout by (1) choosing to direct traffic in a manner in which the traffic passed both in front of and behind him, and (2) turning his head in the opposite direction after he made eye contact with the VIA van's driver and motioned the van to proceed southbound through the intersection.

2. Garcia's Argument

Garcia responds that the standard of care applicable to a traffic officer is different than that applicable to a pedestrian. He asserts that because traffic control requiresspecialized training, expert testimony is required. Garcia insists that VIA failed to produce expert testimony establishing (1) the standard of care for a traffic officer acting under the duty to direct traffic and (2) that Garcia committed an act or omission that breached that duty.

We first address the standard of care applicable to Garcia and then examine whether expert testimony was necessary to establish the standard and breach.

3. Duty of Care

“The existence of a duty is a question of law for the court to decide from the particular facts of the case.” Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 289 (Tex.1996). Texas has long recognized the duty of every adult to exercise ordinary care for his own safety, including the duty to keep a proper lookout. See Lopez v. Lone Star Beer, Inc. of Corpus Christi, 465 S.W.2d 774, 779 (Tex.Civ.App.-Corpus Christi 1971, writ ref'd n.r.e.). This duty has been applied to pedestrians, motorists, and street workmen. See Murphy v. Hammons, 509 S.W.2d 845, 845–46 (Tex.1974) (pedestrian); Montes v. Pendergrass, 61 S.W.3d 505, 509 (Tex.App.-San Antonio 2001, no pet.) (motorists); Lopez, 465 S.W.2d at 779 (street workmen). But we find no cases that describe the standard of care owed by a police officer performing his duty to direct traffic.

VIA compares Garcia's duty to that of a pedestrian to exercise ordinary care for his safety and keep a proper lookout, and directs us to cases involving accidents between vehicles and pedestrians in which there was some evidence to support the pedestrian's failure to keep a proper lookout. E.g., Montes, 61 S.W.3d at 509. But none of VIA's cited cases involve a police officer charged with the duty to direct traffic at a busy intersection. VIA concludes that “Garcia had a duty to exercise ordinary care for his own safety, regardless of the fact that he was lawfully in the intersection directing traffic as part of his duties as a police officer.” But we are not persuaded that Garcia's standard of care in directing traffic at a busy intersection is the same as a pedestrian's to keep a proper lookout while crossing the street.

At trial, the parties agreed that Garcia was acting in his role as a police officer charged with directing traffic at the intersection when he was struck by the VIA van. As noted above, VIA contends Garcia was negligent because he (1) controlled the intersection, (2) could have stopped the northbound traffic until the southbound VIA van cleared the intersection, and (3) deliberately turned his attention away from the VIA van before it passed by the point where he was standing to direct traffic. VIA characterizes this case as one involving an “accident between a bus and a pedestrian.” But its negligence claims relate to actions Garcia...