Kilgore Mechanical, LLC and Dale Carl Dodson II v. Luz Shafiee

Affirmed and Memorandum Opinion filed May 12, 2011. In The Fourteenth Court of Appeals NO. 14-10-00295-CV Kilgore Mechanical, LLC and Dale Carl Dodson II, Appellants v. Luz Shafiee, Appellee On Appeal from the 234th District Court Harris County, Texas Trial Court Cause No. 2008-05283 MEMORANDUM OPINION A jury found appellants Kilgore Mechanical, LLC (“Kilgore”) and Dale Carl Dodson, II liable for damages arising out of a traffic accident in which Dodson, in his company vehicle, rear-ended the vehicle of appellee Luz Shafiee, and a judgment was entered accordingly. In their appeal, appellants allege that (1) the trial court erred in admitting the expert testimony of the investigating officer on the issue of causation, (2) the trial court erred in refusing appellants’ request for a jury instruction regarding sudden emergency, (3) without the testimony of the investigating officer, the evidence presented was insufficient to support the jury’s finding of liability, and (4) the jury’s finding of liability was against the great weight of the evidence and was manifestly unjust. We affirm the judgment. BACKGROUND On the morning of December 10, 2007, Shafiee was traveling in her car in the far left lane of traffic on the Sam Houston Tollway in Houston. While proceeding in stop-and-go traffic, Shafiee’s car was struck in the rear by a service truck belonging to Kilgore and driven by Kilgore’s employee, Dodson. Officer B. M. Dugas responded to the site of the accident. Dugas determined that Dodson was at fault but did not cite him for a traffic violation. Shafiee later filed suit alleging that Dodson’s negligence was the proximate cause of her injuries. In a pre-trial motion, appellants challenged Dugas’s qualifications to testify as an expert as to the cause of the accident. Shafiee responsed that she was offering Dugas as either an expert or lay witness. In the deposition excerpts attached to the motions, Dugas stated that she had been an officer with the Houston Police Department for fourteen years, had undergone ongoing accident training as a patrol officer, and had responded to about thirty accidents per year as a patrol officer. During a pre-trial hearing, the trial court examined the parties’ proposed excerpts of Dugas’s deposition for admission before the jury, admitting much of her deposition, but excluding portions of it. At trial, Dodson alleged that while he was driving behind Shafiee in the left lane in stop-and-go traffic, he attempted to change lanes into a center lane. According to Dodson, he was three-quarters of the way into the center lane when an 18-wheeler started moving into the lane and forced him back into the left lane where he could not slow in time to avoid a collision with Shafiee’s vehicle, which was stopped at the time. Dodson claimed that he had not seen the 18-wheeler two lanes over before he decided to change lanes because he “was just paying attention to the lane that was right next to [him].” He had verified that the lane next to him was clear before he started to move over. On cross-examination, Dodson admitted that he did not honk his horn to get the attention of the driver of the 18-wheeler, did not try to swerve onto the shoulder of the roadway, and did not attempt to adjust his speed and remain in the center lane to avoid the accident. He tried to avoid a collision with Shafiee’s vehicle by applying his brakes but admitted that no skid marks were left by his tires. Shafiee testified she never saw Dodson’s truck approaching and only felt the impact of the collision. She further stated that she did not hear any brakes slamming or skidding before the accident. The jury also heard much of the recorded deposition testimony of Officer Dugas, the responding officer at the site of the accident. Dugas testified as to the contents of the accident report she completed, which listed Dodson as the driver at fault. She determined Dodson was going too fast and was not able to stop in time to avoid rear-ending Shafiee’s car. At the conclusion of the evidence, appellants requested that the jury be given a “sudden emergency” instruction based on the evidence presented.[1] Appellants argued that Dodson acted prudently in response to the sudden emergency he confronted when an 18-wheeler unexpectedly moved into the lane he was entering. The trial judge denied appellants’ request for the instruction. The jury found the appellants liable for Shafiee’s injuries. The jury concluded that Dodson was negligent, that his negligence proximately caused the accident, and that Dodson was acting within the course and scope of his employment. Based on these findings, the jury found damages in favor of Shafiee. This appeal timely followed. ANALYSIS A. Admissibility of Officer Dugas’s Testimony The appellants first assert that the trial court erred by admitting the testimony of Officer Dugas regarding the ultimate issue of causation. Appellants argue that Dugas was not qualified to provide such an expert opinion and that her testimony should not be considered reliable.[2] For these reasons, appellants also challenge the admission of those parts of Dugas’s accident report which relate to causation and fault. We review a trial court’s ruling on an evidentiary matter under an abuse-of-discretion standard. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it rules without regard for any guiding rules or principles. Id. We must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. Id. Some courts have concluded that an officer may offer a non-expert opinion as to causation where his or her testimony is rationally based on the officer’s own perceptions at the scene of the accident and where the testimony aids the trier of fact in determining a fact in issue. See Tex. R. Evid. 701; Brown v. State, 303 S.W.3d 310, 320-21 (Tex. App.—Tyler 2009, pet. ref’d) (investigating officer’s testimony as to how wreck occurred was admissible where officer was not trained in accident reconstruction but was trained to investigate accidents and based his opinions on his observations at the scene of the wreck). Indeed, while police officers often qualify as expert witnesses in traffic collision cases, this qualification does not preclude them from also giving lay opinions where such opinions meet the requirements of Rule 701. See Carter v. Steere Tank Lines, Inc., 835 S.W.2d 176, 182 (Tex. App.—Amarillo 1992, writ denied). In this case, Dugas was offered as both an expert witness and as a lay witness with personal knowledge. Thus, the trial court may have permitted Dugas to testify as a lay witness. Appellants did not challenge the admissibility of Dugas’s testimony as a lay witness until they filed their reply brief, even though, at trial, Shafiee explicitly offered Dugas’s testimony as both an expert and a lay witness. We need not consider issues raised for the first time in a reply brief. See Tex. R. App. P. 38.3; see also Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 424 (Tex. 1996) (court declined to consider issue first raised in reply brief). Under these circumstances, we cannot say the trial court abused its discretion in admitting her testimony. See Owens-Corning Fiberglass Corp., 972 S.W.2d at 43; Carter, 835 S.W.2d at 182. We overrule appellants’ first issue. B. Sudden-Emergency Instruction In their second issue, appellants assert that the trial court erred by refusing to submit an instruction regarding sudden emergency to the jury, thereby probably causing the rendition of an improper judgment. A trial court’s decision whether to submit a particular instruction in its charge is reviewed for an abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). The trial court has “great latitude and considerable discretion” to determine the necessary and proper jury instructions, and any error regarding a requested instruction will not be reversed unless it probably caused the rendition of an improper judgment. Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998). When a trial court refuses to submit a requested instruction, the relevant question on appeal is whether the requested instruction was “reasonably necessary to enable the jury to render a proper verdict.” Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000). To warrant an instruction on sudden emergency, there must be some evidence that (1) an emergency situation arose suddenly, (2) the emergency situation arose unexpectedly, (3) the emergency situation was not caused by the negligent act or omission of the defendant, (4) the emergency situation required immediate action without time for deliberation, and (5) the conduct which would constitute negligence under ordinary circumstances must have occurred after the emergency arose without giving the person time to deliberate. See Oldham v. Thomas, 864 S.W.2d 121, 126 (Tex. App.—Houston [14th Dist.] 1993), rev’d in part on other grounds, 895 S.W.2d 352 (Tex. 1995). An inferential-rebuttal instruction, such as the sudden-emergency instruction, operates to rebut an essential element of the plaintiff’s case by proof of other facts, advising the jury that it does not have to place blame on the defendant if the evidence shows that conditions or parties beyond the defendant’s control caused the accident in question. See Dillard v. Tex. Elec. Co-op., 157 S.W.3d 429, 432 (Tex. 2005). In cases involving rear-end collisions, a court’s decision not to include a sudden-emergency instruction is justified when the defendant’s actions prior to the emergency are negligent. See, e.g., Thomas v. Oldham, 895 S.W.2d 352 (Tex. 1995) (driver’s testimony that he was traveling the posted speed when the defendant unexpectedly u-turned in front of him did not raise a fact question sufficient to require a sudden-emergency instruction); Priest v. Myers, 598 S.W.2d 359 (Tex. Civ. App.—Houston [14th Dist.] 1980, no writ) (court found no evidence to warrant the submission of a sudden-emergency instruction where the defendant was looking around to try to change lanes and could not stop when the plaintiff’s car slowed in front of him); Deviney v. McLendon, 496 S.W.2d 161 (Tex. Civ. App.—Beaumont 1973, writ ref’d n.r.e.) (court found erroneous the submission of a sudden-emergency instruction where the defendant pulled his vehicle to the left to avoid a collision with an approaching vehicle on the right and collided with the rear of the plaintiff’s car that had stopped). In this case, Dodson’s testimony revealed that his actions prior to the emergency were negligent and contributed to the accident. Dodson testified that he never saw the 18-wheeler before he changed lanes because he was paying attention only to the lane he was moving into, not the other lanes of traffic. He admitted that he was responsible for maintaining a speed consistent with the traffic in both lanes of travel. Dodson stated that he could not stop in time to avoid hitting Shafiee, supporting the conclusion that he failed to properly gauge his speed in Shafiee’s lane. Dodson also admitted that he did not honk his horn, did not try to speed up to go around the 18-wheeler, left no skid marks while attempting to brake, and did not attempt to pull his vehicle to the inside shoulder to avoid the collision. This testimony was also supported by Dugas’s report and testimony. In short, the evidence presented failed to raise a factual issue sufficient to warrant the submission of the sudden-emergency instruction. We cannot conclude that under these facts the trial court’s decision not to submit the requested instruction amounted to an abuse of discretion. Appellants’ second issue is overruled. C. Factual Sufficiency of the Evidence In their third and fourth issues, appellants claim that, absent the testimony of Officer Dugas, the evidence presented at trial is factually insufficient to support the jury’s finding as to liability. Appellants, however, fail to cite any legal authority in this section of their brief. Thus, they have waived review of these issues by failing to properly brief them. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”). Moreover, in conducting a factual sufficiency review, we examine all the evidence and set aside the finding only if the evidence is so weak as to make the finding clearly wrong and unjust. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). Our review of the record indicates substantial evidence supporting the jury’s finding of liability, including Dugas’s testimony, summarized above. Additionally, Dodson’s own testimony indicated that he failed to maintain a speed consistent with both lanes of traffic in which he was traveling. He testified about his failure to take other alternative actions which might have avoided the accident. Dodson also absolved Shafiee of any responsibility for the accident. In addition, while Dodson testified that he applied his brakes and tried to stop, he also admitted that no skid marks were left by his tires. Shafiee testified that she did not hear anyone applying their brakes or skidding before the collision. Thus, there is factually sufficient evidence to support the jury’s finding of liability. For the foregoing reasons, we overrule appellants’ third and fourth issues. Having overruled each of appellants’ issues, we affirm the trial court’s judgment. /s/ Adele Hedges Chief Justice Panel consists of Chief Justice Hedges and Justices Frost and Christopher. [1] The requested instruction was taken from the pattern jury charges and reads: 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. Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: General Negligence & Intentional Personal Torts PJC 3.3 (2010). [2] Because the appellants failed to challenge the reliability of Dugas’s testimony in the trial court, they have waived that issue for appeal. See Tex. R. App. P. 33.1(a); Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002) (“To preserve a complaint that an expert’s testimony is unreliable, a party must object to the testimony before trial or when it is offered.”). Therefore, we address only the appellants’ claim that Dugas was an unqualified witness to testify as to causation.