Lucilia Hernandez v. Carol Sheppard Kaplan

NUMBER 13-02-091-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG LUCILIA HERNANDEZ, Appellant, v. CAROL SHEPPARD KAPLAN, Appellee. On appeal from County Court at Law Court No. 1 of Nueces County, Texas. MEMORANDUM OPINION Before Justices Yañez, Castillo, and Garza Memorandum Opinion by Justice Yañez This is a car collision case. The appellant, Lucilia Hernandez, was rear-ended by Roberto Ortiz, who appellant alleges was first hit by Carol Kaplan, appellee. The jury found in favor of Kaplan on the liability questions and found that Hernandez suffered no damages. Hernandez appeals the take-nothing judgment. We affirm. In her single issue, Hernandez asserts the evidence is factually insufficient to support the jury’s findings and that the trial court erred in denying her motion for new trial because the jury’s verdict was against the great weight and preponderance of the evidence. Standard of Review “In reviewing factual sufficiency challenges, this Court must examine all of the evidence and, having considered and weighed all the evidence, set aside the finding only if the evidence is so weak or the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.” Neese v. Dietz, 845 S.W.2d 311, 313 (Tex. App.–Houston [1st Dist.] 1992, writ denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). “This Court cannot substitute its opinion for that of the trier of fact and determine that it would reach a different conclusion.” Neese, 845 S.W.2d at 313. Analysis Appellant asserts that the evidence is factually insufficient to support the jury’s findings (no negligence, no damages) because the evidence conclusively established as a matter of law that defendant was negligent and that her negligence was a proximate cause of the collision. Jury question number one asked, “Did the negligence, if any, of the persons named below proximately cause the occurrence in question.” The jury answered, “No.” The jury charge included the following relevant definitions: “Negligence” means failure to use ordinary care; that is to say, failure 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. “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; and 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. “Ordinary Care” means that degree of care, which would be used by a person of ordinary prudence under the same or similar circumstances. Three witnesses to the accident testified at trial: Hernandez, Ortiz, and Kaplan. Hernandez testified that she stopped her Pontiac Grand Am behind other vehicles in traffic and was hit from behind by Ortiz’s Ford Bronco. Ortiz, through a deposition read into the record, testified that Kaplan’s Honda Accord hit the back of his Bronco and caused the Bronco to then hit Hernandez’s Grand Am. “Texas courts have held that the mere occurrence of a rear-end automobile accident is not of itself evidence of negligence as a matter of law.” Id. at 314; DeLeon v. Pickens, 933 S.W.2d 286, 289 (Tex. App.–Corpus Christi 1996, writ denied). The plaintiff must prove specific acts of negligence on the part of the following driver and must also prove proximate cause. Neese, 845 S.W.2d at 314. In this case, there were conflicting accounts of whether Ortiz or Kaplan was responsible for the collision with Hernandez. Kaplan testified that she saw Ortiz’s Bronco stopped in front of her too late to avoid a collision, so she “slammed on” her brakes and her Accord “went underneath him.” Kaplan admitted that she was negligent in running into the back of Ortiz’s Bronco. She testified that Ortiz’s Bronco did not move forward on their collision. She testified that she did know whether or not Ortiz’s Bronco struck the back of Hernandez’s Grand Am before she struck the Bronco. The investigating officer testified that the photographs of the damage to the vehicles were consistent with Kaplan’s account. Ortiz testified that, in the collision, his body first moved forward (away from the seat), then backwards (into the seat). Hernandez testified that her body first moved backwards then forward. At trial, appellee’s counsel argued that the testimony of Hernandez and Ortiz was inconsistent with Kaplan having caused the accident because Ortiz’s body movement was consistent with his Bronco striking Hernandez’s Grand Am before his Bronco was struck by Kaplan’s Accord. Appellee argued that if Ortiz’s Bronco had been struck first, his body, like Hernandez’s body, would have initially been pressed into the seat. “The conflicts in the evidence and the credibility of the witnesses were for the jury to resolve, not this Court.” Id. at 314-15 (citing Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex. App.–Houston [1st Dist.] 1984, writ ref’d n.r.e.)). Furthermore, “[t]he jury is not only the judge of the facts and circumstances proven, but may also draw reasonable inferences and deductions from the evidence adduced before it.” Id. at 314 (citing Gaitan v. Reyes Salvatierra, 485 S.W.2d 602, 604 (Tex. Civ. App.–San Antonio 1972, no writ)). The jury heard all of the evidence, observed the witnesses and exhibits, and absolved appellee of any negligence. Id. The evidence outlined above supports such an answer. The record does not show that the evidence is so contrary to the jury’s finding on negligence that this finding is clearly wrong or manifestly unjust. Id. We hold the evidence is factually sufficient to support the jury’s answer on negligence. Having affirmed the jury’s finding of no negligence, it follows that their finding of zero damages was also supported by factually sufficient evidence. Appellant also asserts that the trial court erred in denying her motion for new trial based on the jury’s verdict being against the great weight and preponderance of the evidence. In reviewing a trial court’s ruling on a motion for new trial, the standard is abuse of discretion. Director v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). Considering our holding that the evidence is factually sufficient, the trial court did not abuse its discretion in denying the motion for new trial. Having considered appellant’s assertions, we overrule appellant’s single issue. The judgment of the trial court is affirmed. LINDA REYNA YAÑEZ Justice Opinion delivered and filed this the 29th day of January, 2004.