Opinion
No. 05-10-01482-CV
04-24-2012
MELODY TOWNSEL, Appellant v. DADASH, INC. D/B/A DADASH TOWING, Appellee
AFFIRM; Opinion Filed April 24, 2012.
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-08-049242-D
MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
Appellant Melody Townsel sued appellee Dadash, Inc. d/b/a Dadash Towing (Dadash) for personal and property damages sustained by Townsel in a car crash allegedly caused by Dadash. A jury found a third party solely responsible for Townsel's damages, and the trial court rendered a take- nothing judgment in favor of Dadash. In two issues, Townsel alleges (1) the trial court erred in refusing to charge the jury with an instruction submitted by Townsel and (2) what Townsel characterizes as the jury's finding of "no negligence" as to Dadash in answer to Jury Question No. 1 was legally and factually insufficient. We decide against Townsel on both issues. The trial court's judgment is affirmed. I. FACTUAL AND PROCEDURAL BACKGROUND
On July 20, 2006, Craig Shannon was driving on a multi-lane tollway when he realized one of his vehicle's tires was deflated. He moved his vehicle to the tollway's right shoulder, which was about eight feet wide. Shannon telephoned the American Automobile Association (AAA) by cell phone, notified them of his problem, and requested towing service. AAA, in turn, called Dadash to dispatch a tow truck to Shannon's location. Dadash's driver arrived at the scene and parked the tow truck behind Shannon's parked car. After assessing the situation, Dadash's driver determined he would not be able to repair Shannon's deflated tire while on the tollway nor would his tow truck be able to tow Shannon's car. Dadash's driver called Dadash and requested that a different tow truck be sent. While awaiting the arrival of the second tow truck and to prepare Shannon's car to be loaded, Dadash's driver moved his tow truck so it was partially in the right lane of the tollway and partially on the right shoulder. Kerry Parrish, a motorist traveling in the right lane of the tollway at the time, did not see Dadash's parked tow truck and swerved into the center lane to avoid hitting the parked tow truck. Parrish's car struck appellant Townsel's car, then in the center lane. This collision caused personal injury to Townsel and damaged her vehicle.
Townsel filed suit on June 3, 2008, alleging both common-law negligence and negligence per se by Dadash for its driver's actions in parking his tow truck partially in the right lane of the tollway. Dadash filed a third-party petition to join Parrish as a third-party defendant, which the trial court granted. Before evidence was presented at trial, Dadash nonsuited Parrish without objection from Townsel. After the evidence was presented, the trial court held a hearing on the proposed jury charge. The proposed charge included, in pertinent part, an instruction that "'Ordinary care' means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances." Townsel objected to the proposed jury charge, arguing the charge should include an additional instruction that would inform the jury that "a professional tow truck driver is held to the same standard of care that would be exercised by a reasonably prudent professional tow truck driver acting under the same or similar circumstances." The trial court denied the additional instruction.
Townsel alleged negligence per se under §§ 545.301 (prohibiting stopping, standing, or parking a vehicle outside a business district) and 545.302 (prohibiting stopping, standing, or parking a vehicle at the edge of a curb or street) of the Texas Transportation Code. At the time Townsel filed suit, §§ 545.301 and 545.302 did not treat tow truck drivers differently from other motorists. See Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, sec. 545.301, 1995 Tex. Gen. Laws 1025, 1633, amended by Act of May 29, 2009, 81st Leg., R.S., ch. 782, § 3, sec. 545.301, 2009 Tex. Gen. Laws 1977-78, amended by Act of May 23, 2011, 82d Leg., R.S., ch. 229, § 2, sec. 545.301, 2011 Tex. Gen. Laws 812; Tex. Transp. Code Ann. § 545.302 (West 2011). Since the time this cause of action accrued, the Legislature amended § 545.301 to exempt tow truck drivers. See id. § 545.301(b)(3) (West Supp. 2011). Because § 545.301(b)(3) was not enacted and did not become effective until after this cause of action accrued, we interpret the law as it existed at the time of accrual.
In the charge that was submitted to the jury, Question No. 1 asked: "Did the negligence, if any, of those named below proximately cause the occurrence in question?" The jury responded "no" as to Dadash and "yes" as to Parrish. Because the jury answered "yes" at least once to Question No. 1, the charge directed the jury to answer Question No. 2: "What percentage of the negligence that caused the occurrence in question do you find to be attributable to each of those listed below and found by you, in your answer to question No.1, to be negligent?" The jury answered "0%" as to Dadash and "100%" as to Parrish. Based on the jury's verdict, the trial court rendered a take-nothing judgment in favor of Dadash.
In her first issue on appeal, Townsel alleges the trial court erred in refusing to submit the requested instruction to the jury that "a professional tow truck driver is held to the standard of care that would be exercised by a reasonably prudent professional tow truck driver acting under the same or similar circumstances." In her second issue, Townsel argues that what she characterizes as the jury's finding of "no negligence" as to Dadash in answer to Jury Question No. 1 was legally and factually insufficient.
II. TOWNSEL'S REQUESTED JURY INSTRUCTION
In her first issue, Townsel argues the trial court erred in failing to submit the proposed jury instruction that "a professional tow truck driver is held to the standard of care that would be exercised by a reasonably prudent professional tow truck driver acting under the same or similar circumstances." Dadash responds the trial court did not err in refusing the additional instruction for two reasons: (1) the additional instruction was not necessary because of the negligence per se instruction provided by the court, and (2) the requested additional instruction was improper because tow truck drivers do not owe a "heightened standard of care" to the general public.
A. Standard of Review and Applicable Law
Texas Rule of Civil Procedure 277 requires the trial court submit instructions and definitions to the jury as are necessary to "enable the jury to render a verdict." Tex. R. Civ. P. 277. "We review a trial court's decision to submit or 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, the question on appeal is whether the requested instruction was reasonably necessary to enable the jury to render a proper verdict." Id. "The omission of an instruction is reversible error only if the omission probably caused the rendition of an improper judgment." Id. (citing Tex. R. App. P. 61.1(a), 44.1(a)); see Wal- Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 723 (Tex. 2003). "Error in the omission of an issue is harmless 'when the findings of the jury in answer to other issues are sufficient to support the judgment.'" Shupe, 192 S.W.3d at 579-80.
B. Application of Law to Facts
The following instruction was submitted to the jury: "'Ordinary care' means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances." Townsel objected to the above instruction and requested the trial court submit the following:
Furthermore, professionals who undertake work calling for special knowledge and skill are required to possess a standard minimum of special ability. Therefore, a professional tow truck driver is held to the standard of care that would be exercised by a reasonably prudent professional tow truck driver acting under the same or similar circumstances. Whereas, an ordinary person is only required to act as a reasonably prudent person would act under the same or similar circumstances.
Relying on Jackson v. Axelrad, 221 S.W.3d 650 (Tex. 2007), Townsel contends the trial court abused its discretion by not submitting the proposed instruction as to the special knowledge and skills of the tow truck driver because "persons with specialized knowledge or skills must be judged against persons in the same profession with the same specialized skills or knowledge." We cannot agree with Townsel's argument.
In Jackson, the plaintiff, who was a physician, sought medical treatment from defendant, another physician. Following the treatment prescribed by defendant, the plaintiff's condition deteriorated. Id. at 652. The plaintiff sued the defendant for medical malpractice. Id. The defendant claimed the plaintiff was contributorily negligent in providing an inaccurate medical history. Id. The defendant argued the plaintiff's own medical training should be taken into account when evaluating the medical history he provided. Id. at 655.
The jury assessed 51% of the fault to the plaintiff and the trial court rendered a take-nothing judgment. Id. at 652 (citing Tex. Civ. Prac. & Rem. Code Ann. § 33.001 (1995)). The trial court's charge included "a physician-of-ordinary-prudence charge as to Dr. Jackson[, the defendant,] and a person-of-ordinary-prudence charge as to Axelrad[, the plaintiff]." Id. at 657. There was no objection to this charge. A divided court of appeals "reversed and remanded for a new trial, disregarding the finding of the plaintiff's negligence because laymen generally have no duty to volunteer information during medical treatment." Id. at 652.
The Supreme Court determined "the traditional reasonable-person standard . . . tak[es] into account both the knowledge and skill of an ordinary person and 'such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has.'" Id. at 655-56 (quoting Restatement (Second) of Torts § 289 (1965)). Accordingly, the Supreme Court in Jackson reversed the court of appeals and remanded for a factual sufficiency review. Id. at 659.
Contrary to Townsel's argument, the Supreme Court in Jackson did not suggest that the standard ordinary care instruction should not be submitted where the defendant is possessed of special expertise. Rather, the Supreme Court made it clear, other than in particular circumstances, "that ordinary prudence under the same or similar circumstances includes a party's expertise." Id. at 656. The "under the same or similar circumstances" language itself instructs a jury to consider the defendant's superior skills and knowledge. Id. at 655.
Jackson, 221 S.W.3d at 655 & nn.16-17 (identifying a higher standard of care for strict negligence, the high-degree-of-care standard for common carriers, and a lower standard of care for gross negligence, the willful-and-wanton standard for emergency care).
In the instruction on "[o]rdinary care" submitted in this case, the jurors were asked to judge a person's conduct against the "degree of care that would be used by a person of ordinary prudence under the same or similar circumstances." Further, Townsel's expert stated what a tow truck driver should have done under the circumstances, but did not state it differed in any way from what any other motorist should have done. On this record, we conclude the requested instruction was not reasonably necessary to enable the jury to render a proper verdict. See id. at 656; Shupe, 192 S.W.3d at 579. Accordingly, we conclude the trial court did not abuse its discretion. We decide Townsel's first issue against her. III. SUFFICIENCY OF EVIDENCE TO SUPPORT JURY'S ANSWER TO QUESTION NO. 1
In her second issue, Townsel specifically asserts a factual sufficiency challenge, arguing what she characterizes as "the jury's finding of 'no negligence' by [Dadash in answer to Question No. 1] was against the great weight and preponderance of the evidence." However, she also makes arguments that refer to the standard of review of a legal, not factual, sufficiency challenge. Specifically, Townsel argues "[t]here is no pleading or evidence that [Dadash's] negligence pro se [sic] was excused" and "[t]he evidence conclusively established that [Dadash] was negligent per se." We broadly construe Townsel's second issue to raise both factual and legal insufficiency as to the jury's answer to Question No. 1. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (noting that appellate briefs are to be construed liberally).
"When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
To challenge the legal sufficiency of evidence, a party with the burden of proof must demonstrate that no evidence supports the jury's finding and that the evidence conclusively establishes the contrary proposition. See id. at 241.
In her brief filed with this court, Townsel contends "[t]he jury returned a verdict finding no negligence by Appellee [in Question No. 1] and assigning [sic] all negligence to Parrish [in Question No. 2]." The record reflects the jury did attribute "100%" of the negligence to Parrish in Question No. 2. However, we cannot agree the jury found "no negligence" as to Dadash when it answered Question No. 1. Question No. 1 asked only: "Did the negligence, if any, of those named below proximately cause the occurrence in question?" Below that question, the charge included instructions as to "negligence," "ordinary care," "proximate cause," and summaries of the statutes Townsel alleged Dadash violated. The jury answered "no" to Question No. 1 as to Dadash.
There was no objection by Townsel to Question No. 1 that jointly submitted both negligence and proximate cause. In fact, when, as here, "there are claims of both common-law negligence and negligence per se," the jury charge should include "a broad-form question jointly submitting negligence and proximate cause." Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges-General Negligence & intentional personal torts PJC 5.1 cmt. 59 (2008); see Tex. R. Civ. P. 277 ("In all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions."). In light of the broad-form submission, the jury's "no" answer to Question No. 1 could have been based upon the jury's refusal to find either that Dadash was negligent or that any such negligence was a proximate cause of Townsel's damages. Faust v. BNSF Ry. Co., 337 S.W.3d 325, 338 (Tex. App.-Fort Worth 2011, pet. denied). To sustain this issue, the evidence must be insufficient to support the jury's refusal to find both that Dadash was negligent and that any such negligence was a proximate cause of Townsel's injuries and damages. Id.
While Townsel alleges the evidence "conclusively established" a statutory violation by Dadash, she does not complain about the negative jury finding to Question No. 1 that also inquired about proximate cause as to Dadash. Accordingly, Townsel's insufficiency challenge to the jury's answer to Question No. 1 cannot be sustained. We decide Townsel's second issue against her.
IV. CONCLUSION
We conclude the trial court did not err in refusing to submit an additional instruction on a different standard-of-care instruction for a "professional" tow truck driver. Further, Townsel's insufficiency challenge to the jury's answer to Question No. 1 cannot be sustained. The judgment of the trial court is affirmed.
DOUGLAS S. LANG
JUSTICE
101482F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MELODY TOWNSEL, Appellant
V.
DADASH, INC. D/B/A DADASH TOWING, Appellee
No. 05-10-01482-CV
Appeal from the County Court at Law No. 4 of Dallas County, Texas. (Tr.Ct.No. CC-08- 049242-D).
Opinion delivered by Justice Lang, Justices Bridges and FitzGerald participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee Dadash, Inc. d/b/a Dadash Towing recover its costs of this appeal from appellant Melody Townsel.
Judgment entered April 24, 2012.
DOUGLAS S. LANG
JUSTICE