COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00248-CV
MICHAEL CAMPBELL APPELLANT
V.
CESAR PEREZ APPELLEE
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 096-257238-11
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MEMORANDUM OPINION1
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I. Introduction
This is an appeal from a take-nothing judgment in a rear-end automobile
collision suit. In his two issues, Appellant Michael Campbell asserts that the
evidence is legally and factually insufficient to support the jury’s findings. We
affirm.
1
See Tex. R. App. P. 47.4.
II. Background
The testimony at trial revealed that both Campbell and Appellee Cesar
Perez were headed west on Camp Wisdom. At the intersection of Camp
Wisdom and the Highway 360 access road, both parties entered the right lane to
merge onto 360. Campbell approached the intersection first and stopped; Perez
stopped about half-a-car length behind him.
Campbell began to move forward, followed by Perez. Campbell stopped;
Perez stopped. Campbell moved forward again; Perez looked to the left,
proceeded, and rear-ended Campbell, who had stopped again.
Campbell sued Perez for negligence, seeking damages for his personal
injuries and lost wages. A jury found that Perez’s negligence, if any, did not
proximately cause the collision, and the trial court entered a take-nothing
judgment.
III. Standards of Review
A party challenging the legal sufficiency of an adverse finding on an issue
on which the party had the burden of proof at trial must demonstrate on appeal
that the evidence conclusively established, as a matter of law, all vital facts in
support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001). The reviewing court first examines the record for evidence that supports
the finding, crediting favorable evidence if a reasonable fact-finder could, while
disregarding contrary evidence, unless a reasonable fact-finder could not. Id.;
see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If no evidence
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supports the finding, then the reviewing court will examine the entire record to
determine if the contrary proposition is established as a matter of law. Dow
Chem. Co., 46 S.W.3d at 241.
When a party attacks the factual sufficiency of an adverse finding on an
issue on which the party had the burden of proof, it must demonstrate on appeal
that the adverse finding is against the great weight and preponderance of the
evidence. Id. at 242.
In performing these evidentiary-sufficiency reviews, we must be mindful
that the fact-finder is the sole judge of the credibility of the witnesses and the
weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694,
696–97 (Tex. 1986); Nwokedi v. Unlimited Restoration Specialists, Inc., 428
S.W.3d 191, 199, 205 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). It is
responsible for resolving conflicts in the evidence, and it may believe one witness
and disbelieve another. McGalliard, 722 S.W.2d at 697. We may not reweigh
the evidence and set aside a finding merely because we are of the opinion that a
different result is more reasonable. Pool v. Ford Motor Co., 715 S.W.2d 629, 634
(Tex. 1986).
IV. Discussion
Campbell challenges on appeal the legal and factual sufficiency of the
jury’s finding that Perez was either not negligent or did not proximately cause the
collision. The jury charge read, “Did the negligence, if any, of Cesar Pérez
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proximately cause the occurrence in question?” The jury answered, “No.” The
charge contained the following definitions:
“Negligence” means failure to use ordinary care, that is, failing
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.
“Ordinary care” means that degree of care that would be used
by a person of ordinary prudence under the same or similar
circumstances.
“Proximate cause” means that cause that was a substantial
factor in bringing about an event, and without which cause such
event would not have occurred. 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.
We evaluate the evidence presented at trial in light of these definitions. See City
of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000).
A. Legal Sufficiency
Campbell argues that he conclusively established at trial that Perez was
negligent and such negligence was the proximate cause of the collision.
1. Judicial Admission
Specifically, Campbell asserts that because Perez admitted in his
testimony that (1) he hit Campbell from behind, (2) he was liable, (3) he was fully
at fault, and (4) Campbell suffered some damages, these admissions establish
that Perez was negligent and such negligence was the proximate cause of the
collision as a matter of law.
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“A party’s testimonial declarations which are contrary to his position are
quasi-admissions.” Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d
692, 694 (Tex. 1980). Quasi-admissions are merely some evidence and are not
conclusive. Id. Judicial admissions, on the other hand, are conclusive, and they
“relieve[] the opposing party’s burden of proving the admitted fact, and bar[] the
admitting party from disputing it.” Id. Two of the requirements for treating a
party’s testimonial quasi-admission as a conclusive judicial admission include
(1) the statement must be “contrary to an essential fact embraced in the theory of
recovery or defense asserted by the person giving the testimony” and (2) the
statement must be “deliberate, clear, and unequivocal” and “[t]he hypothesis of
mere mistake or slip of the tongue must be eliminated.” Id. (citing United States
Fid. & Guar. Co. v. Carr, 242 S.W.2d 224, 229 (Tex. Civ. App.—San Antonio
1951, writ refused)).
The relevant portions of Perez’s testimony are below:
DIRECT EXAMINATION
[Plaintiff’s Counsel]: And, Mr. Perez, you admit hitting Michael’s
Cadillac on February 20th, 2010; is that correct?
[Perez]: That’s correct.
....
[Plaintiff’s Counsel]: And you admit that this wreck was your fault?
[Perez]: That is correct.
....
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[Plaintiff’s Counsel]: And Michael did nothing to contribute to this car
wreck?
[Perez]: No sir.
....
[Plaintiff’s Counsel]: Okay. But you don’t believe that he was hurt,
do you?
[Perez]: This is what I feel about this accident: Yes, I’m liable for
the accident. Yes, I rolled my car into his car. No, I don’t think that
this accident caused the damages to his body.
....
CROSS-EXAMINATION
[Defense Counsel]: Okay. And then what happened when you
proceeded forward?
[Perez]: Well, as I proceeded to take a right at the YIELD sign, Mr.
Campbell approached -- he went forward.
I mean, as a driver, you always have to look to the left, to
the right, to whatever way I was proceeding. I was proceeding to the
right. So I’m driving. I looked to the left to see if any cars were
coming.
. . . He scoots forward, so I scoot forward. And then
he . . . did it again. He scoots forward like a half car length again.
So we proceeded.
. . . Half of the car is, like, sticking out towards Highway
360, Camp Wisdom.
...
So as I proceeded . . . I got in contact with the car.
....
[Defense Counsel]: That day, were you, in your opinion, driving
negligently?
[Perez]: No, ma’am.
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[Defense counsel]: And what were you doing immediately before
the contact between these vehicles?
[Perez]: I was driving. I was looking to the left and to the right to
proceed forward.
[Defense counsel]: Because the traffic was coming to your left; is
that correct?
[Perez]: Yeah. That is correct. Yes, ma’am.
....
[Defense Counsel]: Okay. Again, plaintiff’s counsel discussed [with]
you and -- asked you whether you were at fault for this accident.
And can you clarify your understanding of the difference between
“fault” and “negligence.”
[Perez]: Yes. I do believe I am at fault for the accident. I don’t -- I
don’t believe I’m a negligent driver. My car, yes, it was – it was in
contact with the vehicle. . . . And, yes, I -- [l]ike I said, I do believe
I’m at fault. But, no, I don’t think that this accident caused these
damages that he’s requesting here or seeking me --
....
REDIRECT EXAMINATION
[Plaintiff’s Counsel]: And would a reasonable person keep his car
stopped until it was safe to go?
[Perez]: Yes.
....
[Plaintiff’s Counsel]: And a reasonable and prudent person wouldn’t
move their car without looking straightforward ahead, because he
was in front of you; is that correct?
[Perez:] That’s correct.
....
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RECROSS-EXAMINATION
[Defense Counsel]: Mr. Perez, would a reasonably prudent person
be required to look left when at a YIELD sign turning right?
[Perez]: That is correct.
During closing arguments, Perez’s attorney argued to the jury that “fault”
was not the same as “negligence” and that there was a difference between the
common usage and the legal usage. As such, Perez’s admission that he was at
fault does not conflict with his apparent defensive theory that Perez did what any
other reasonable person would have done in the same or similar circumstances.
Given the testimony as a whole, Perez’s admission of fault was simply an
admission that his car rear-ended Campbell’s and not that he was negligent in
doing so.
Further, Perez’s repeated assertions that he did not cause the damage
Campbell was seeking is in direct contradiction to Perez’s use of the term “liable,”
and it is possible that Perez used the terms “liable” and “fault” interchangeably.
As such, this language does not qualify as a deliberate, clear, and unequivocal
admission of liability. See Risinger v. Shuemaker, 160 S.W.3d 84, 90 (Tex.
App.—Tyler 2004, pet. denied) (holding that an appellee’s concession that his
vehicle hit the appellant was a quasi-admission when he admitted neither being
negligent nor proximately causing appellant’s injuries).
Therefore, Perez’s statements are quasi-admissions; accordingly, they are
only some evidence and are not conclusive as to Perez’s negligence. Mendoza,
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606 S.W.2d at 694 (noting that quasi-admissions are merely some evidence and
are not conclusive upon the admitter, and the trier of fact determines the weight
to such admissions).
2. Negligence
In our analysis of the legal sufficiency of the evidence, we first examine the
record for evidence supporting the finding that reasonable jurors could believe,
disregarding all contrary evidence that reasonable jurors could ignore. City of
Keller, 168 S.W.3d at 807. Here, the testimony indicated that both parties were
stopped at an intersection controlled by a yield sign and both intended to merge
onto 360. Perez testified that he came to a complete stop behind Campbell;
when Campbell began advancing, he looked to the left to check for oncoming
traffic; and then he moved forward, hitting Campbell’s vehicle, which had stopped
again. Perez testified that he was at a complete stop before the impact, and
while he was at fault for hitting Campbell, he was not driving negligently nor did
he believe that he caused the amount of damage Campbell claimed. This
testimony provides some evidence that Perez acted with ordinary prudence and,
consequently, constitutes legally sufficient evidence to support the jury’s finding
that Perez was not negligent. See Stone v. Sulak, 994 S.W.2d 348, 350 (Tex.
App.—Austin 1999, no pet.) (affirming legal sufficiency of no-negligence finding
where testimony showed that the driver looked over his shoulder to gauge
oncoming traffic, then collided with vehicle that had stopped at yield sign).
We overrule Campbell’s first issue.
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B. Factual Sufficiency
We now turn to the factual sufficiency analysis, under which we consider
and weigh all of the evidence, setting aside the verdict only if the evidence is so
weak or if the finding is so against the great weight and preponderance of the
evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986).
The mere occurrence of a rear-end collision is some evidence of
negligence of the rear-ending driver but is not negligence as a matter of law.
See Briones v. Sharkey, No. 04-11-00584-CV, 2012 WL 3776488, at *6 (Tex.
App.—San Antonio Aug. 31, 2012, no pet.) (mem. op.); Hernandez v. Kaplan,
No. 13-02-00091-CV, 2004 WL 170457, at *2 (Tex. App.—Corpus Christi
Jan. 29, 2004, no pet.) (mem. op.); Stone, 994 S.W.2d at 351; Neese v. Dietz,
845 S.W.2d 311, 314 (Tex. App.—Houston [1st Dist.] 1992, writ denied);
Renshaw v. Countess, 289 S.W.2d 621, 624 (Tex. Civ. App.—Fort Worth 1956,
no writ). The plaintiff must prove specific acts of negligence on the part of the
following driver as well as proximate cause. Neese, 845 S.W.2d at 314.
The issue of whether a rear-end collision raises an issue of negligence or
establishes it as a matter of law depends on all the facts and circumstances of
the particular case. Pearson v. DeBoer, Inc., 99 S.W.3d 273, 276 (Tex. App.—
Corpus Christi 2003, no pet.). Whether the plaintiff succeeds in proving
negligence by a preponderance of the evidence is within the jury’s province to
determine. Id.
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The evidence supporting the jury’s finding was summarized above. In
addition, we must now consider the evidence against the verdict. Perez rear-
ended Campbell and admitted fault, which are both some evidence of
negligence. In addition, Campbell, a former patrol officer with over thirteen years’
experience, described for the jury the intersection where the accident occurred
and explained that a YIELD sign controlled the right turn onto 360. He explained
that if there was oncoming traffic, then that YIELD sign turned into a STOP sign.
He further testified that when he stopped to yield to oncoming traffic, Perez hit
him.2 When describing the impact for the jury, Campbell said, “It was a very hard
car crash . . . it felt like someone had just. . . hit me in the back really, really, hard
with a baseball bat.”
In other cases where Texas courts have affirmed a jury’s failure to find a
defendant negligent in a rear-end collision involving one lane of traffic yielding
the right-of-way to another, the courts have stated,
The jury heard all of the evidence, observed the witnesses and
acquitted defendant of any negligence. In cases of this character
standards of ordinary care cannot be fixed with any degree of
certainty but must be left in large measure to the trier of the facts.
The 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.
Gaitan v. Reyes Salvatierra, 485 S.W.2d 602, 604 (Tex. Civ. App.—San Antonio
1972, no writ.); see also Neese, 845 S.W.2d at 314.
2
Other testimony at trial included Campbell’s chiropractor, supervisor, and
friend. However, all of this testimony concerned damages.
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Here the court defined negligence in the jury charge as the “failure to use
ordinary care, that is, failing 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.”
Although there is evidence in the record to support a jury finding that Perez
was negligent on the day of the accident, the evidence also supports the finding
that he was not negligent. Perez testified that when he looked, Campbell’s car
was halfway onto the access road, which could support an inference that
Campbell was merging onto the highway. The jury chose to believe Perez’s
testimony as to the events that occurred prior to the collision and determined that
he did not fail to use ordinary care. After reviewing the entire record and the
evidence in support of and against Perez’s negligence, we do not find that the
great weight and preponderance of the evidence supports a reversal of the jury’s
finding of no negligence.
We overrule Campbell’s second issue.
V. Conclusion
Having overruled both of Campbell’s issues, we affirm the trial court’s
judgment.
/s/ Charles Bleil
CHARLES BLEIL
JUSTICE
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PANEL: WALKER and MEIER, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).
DELIVERED: March 5, 2015
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