COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00443-CV
ERNEST SHARD LEE APPELLANT
V.
JOSUE CARMONA APPELLEE
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 096-281338-15
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DISSENTING MEMORANDUM OPINION 1
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Respectfully, I dissent.
The undisputed evidence in this case is that Lee was legally stopped in a
right-hand lane for an interval of 15–20 seconds before Carmona’s vehicle
slammed into Lee’s vehicle from behind. And while it is true that the mere
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See Tex. R. App. P. 47.4.
occurrence of a rear-end collision does not constitute negligence as a matter of
law and that Lee was required to present some evidence of Carmona’s
negligence to support a jury finding of negligence, evidence of Carmona’s failure
to apply his brakes sufficiently to avoid the collision alone will suffice. See
Wilkinson v. Lindsey, 321 S.W.2d 158, 165 (Tex. Civ. App.—Amarillo 1959, no
writ) (observing that the jury found three separate acts of negligence—failure to
yield right-of-way, failure to keep a proper lookout, and failure to apply brakes to
avoid the collision—and holding that any one of these acts “furnishes a sufficient
basis for recovery” under a negligence theory).
But here there is more. Whether the jury believed Carmona’s dubious
claim that he actually kept his eyes on the road the entire time he was reaching
to the floorboard to locate his glasses, Carmona admitted that in doing so, he
was unnecessarily multi-tasking while driving. Carmona agreed that the glasses
he was retrieving from the floorboard were not necessary for the operation of his
vehicle. He also admitted that it would have been “more reasonable” to pull his
vehicle off the roadway before performing this task.
And while the majority opinion correctly points out that “evidence exists
that would support a finding that Carmona was negligent, evidence also exists
that supports the jury’s finding that he was not negligent,” this is not the test to be
applied. In any factual sufficiency review—whether challenging the insufficiency
of the evidence to support a verdict or complaining that the verdict is against the
great weight and preponderance of the evidence—some evidence will exist in the
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record both in favor of and against the verdict returned. Otherwise, the challenge
would be one of legal sufficiency—either no evidence to support the verdict or
conclusive evidence against the verdict.
Rather, the test is whether the evidence of no negligence in this case is so
against the great weight and preponderance of the evidence as to result in a
clearly wrong or manifestly unjust jury finding. Ford Motor Co. v. Pool,
718 S.W.2d 910, 912–13 (Tex. App.—Texarkana 1986) (holding that evidence of
Pool’s intoxication—his blood alcohol level, the presence of one half-filled and
several empty beer bottles in Pool’s vehicle, and the police officer’s testimony
that he smelled alcohol on Pool’s breath—rendered the jury’s finding of no
negligence by driving while intoxicated so against the great weight and
preponderance of the evidence as to be manifestly wrong and unjust despite
numerous witnesses who testified that Pool did not appear to be intoxicated and
testimony from ambulance and wrecker drivers that they did not smell alcohol on
his breath), judgm’t vacated w.r.m., 749 S.W.2d 489 (Tex. 1988).
Even giving proper deference to the jury’s role in weighing the evidence, a
a finding of no negligence in circumstances such as these—where a driver hits a
vehicle that has been stationary for 15–20 seconds from behind while reaching
down to his floorboard to retrieve an object for which the driver admits he had no
pressing need—is manifestly wrong. To uphold such a finding places in peril
every driver lawfully stopped on the roadway, who may now expect to be hit from
behind with impunity by a driver who is simultaneously reaching for a dropped
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cell phone, granola bar, bottled water cap, or any other object that the driver has
no need to immediately possess but nevertheless desires to retrieve.
Whether Carmona’s negligence proximately caused Lee to incur
$20,000 in past medical bills, $20,000 in future medical bills, pain and mental
anguish, or any of the other damages he sought remains a good question. But
neither courts nor juries are permitted to cut corners to achieve what we might
ultimately believe would be a correct result. On this record, I would hold that the
jury’s finding of no negligence is not supported in the evidence and is manifestly
wrong and unjust, and I would reverse and remand for a new trial.
For these reasons, I respectfully dissent.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
CHIEF JUSTICE
DELIVERED: March 8, 2018
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