Affirmed and Majority and Dissenting Memorandum Opinions filed November
17, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00176-CV
MATTHEW BROOKS AND LISA BROOKS, Appellants
V.
MARCO SALAZAR, Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2015-43101
DISSENTING MEMORANDUM OPINION
Because I believe the evidence is factually insufficient to support the jury’s
finding of no negligence, I respectfully dissent.
Car accidents can happen without the negligence of any party. The evidence
in this case, however, does not support the jury’s finding that this accident happened
without the negligence of any party.
BACKGROUND
On a rainy day during the evening commute on the Gulf Freeway in Houston,
appellee Marco Salazar’s vehicle collided with appellants Matthew and Lisa
Brookses’ vehicle. The responding police officer, S. Raj, wrote in his report that both
vehicles were traveling southbound, that Salazar failed to control his speed and hit
the Brookses’ car in the rear. Raj testified that Salazar’s failure to control speed was
a contributing factor to the accident. Salazar reported to Raj that he “hit a patch of
water” while driving, “lost control and hit the other car.” Matthew Brooks, who was
driving, told the officer that he looked in his rear-view mirror and saw Salazar’s car
weaving in and out of lanes. Salazar’s car “clipped [Brooks] in the rear, and [Brooks]
spun out.”
Laura Anne Short, an eyewitness who was driving behind the Brookses’ car
told the officer:
I was driving in the far right lane, and I saw a car [driven by Salazar]
coming up really fast behind me. He passed me up, and I slowed down
because I wanted to get away from him. He was going too fast, and I
had a feeling he was going to wreck. He hit the red SUV [driven by
Brooks] in the rear, and then he hit the barrier. He came across the
freeway and hit the barrier on the left side. I stopped to make sure
everyone was okay.
Ms. Brooks testified that on the day of the accident they were returning home
and the misty rain had just begun to fall. Traffic had slowed to about 45 miles per
hour and Ms. Brooks fell asleep. Ms. Brooks was awakened by a loud, jolting noise
and discovered their car was spinning on the road, hitting one barrier and careening
into another barrier on the other side of the highway.
Mr. Brooks testified that he and Ms. Brooks were driving home, and the
pavement was wet because it had started to rain. Brooks glanced in his rearview
mirror and saw Salazar’s car coming toward him. Brooks estimated his own speed
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at 50 miles per hour. It appeared to Brooks that Salazar was driving faster than him.
Salazar’s car struck the right rear of the Brookses’ car. The Brookses’ car began to
spin in the center of the freeway. Salazar got out of his car and walked to the
Brookses’ car to ask if they were okay.
Salazar testified that on the day of the accident he was driving his mother’s
car to his sister’s house and it was raining. He did not remember how he lost control
of his car; he only remembered hitting the Brookses’ car and asking if they were
okay. Salazar did not remember how fast he was going.
ANALYSIS
The elements of a negligence claim are (1) the existence of a legal duty, (2) a
breach of that duty, and (3) damages proximately caused by the breach. Rodriguez–
Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013). In the context of today’s case,
“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. See 20801, Inc. v. Parker, 249 S.W.3d
392, 398 (Tex. 2008). Proximate cause has two components — cause in fact and
foreseeability. See Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 222 (Tex.
2010). To establish cause in fact the evidence must show that Salazar’s negligence,
if any, was a substantial factor in bringing about the accident, and that without
Salazar’s negligence, if any, the accident would not have occurred. See id. at 222–
23. Likewise, to be a proximate cause, the act or omission at issue must be such that
a person using ordinary care would have foreseen that the accident, or some similar
event, might reasonably result therefrom. See Browning-Ferris Indus., Inc. v. Lieck,
881 S.W.2d 288, 292 (Tex. 1994).
The evidence with regard to liability consisted of testimony from Mr. and Ms.
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Brooks, Officer Raj, Salazar, and Short. The Brookses also produced Raj’s report,
which included a map showing the location of the accident, and post-crash photos
of their vehicle. Salazar also testified and produced photos of the Brookses’ car.
In many sufficiency cases, he-said she-said-type conflicts in evidence fall
within the purview of the jury, meaning that appellate reversal is rare when resolving
an evidentiary conflict that hinges on an assessment of credibility and demeanor. In
this case, however, we do not have conflicting testimony per se. Rather, Salazar
testified that he did not remember much about how the accident happened. Salazar
testified that he remembered driving and losing control and that he “guess[ed]” he
hit the Brookses’ car.
Mr. and Ms. Brooks and Short, the eyewitness, testified that Salazar was
traveling too fast for the road conditions. Short testified that she took her foot off the
accelerator and braked in order to avoid an accident.
On cross-examination, Salazar testified as follows:
Q. And at some point, you postulated that you had hydroplaned. Is that
correct?
A. Yes, ma’am.
Q. And you would have — you were observed to have been going very
fast, as you’ve heard on the testimony. Is that correct?
A. That’s what they said. I don’t recall that, but —
Q. Okay. You’re not going to dispute the eyewitness who said that she
was afraid, that she wanted to get away from you?
A. Yes, ma’am.
Q. She said “I was driving in the far right lane, and I saw a car coming
up really fast behind me. He passed me up, and I slowed down because
I wanted to get away from him. He was going too fast, and I had a
feeling he was going to wreck.”
You don’t dispute that you were going too fast?
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And that’s what caused you to lose control, was it not?
A. Yes, ma’am.
Q. Had you not been going too fast, this accident never would have
happened. Isn’t that right?
A. Yes, ma’am.
Other than Salazar’s statement to the responding police officer that he “hit a patch
of water,” the record does not reflect evidence contradicting the Brookses’, Short’s,
and Salazar’s testimony that Salazar was going too fast and that his excessive speed
caused the accident.
If an appellate court reverses a verdict on factual sufficiency grounds, the
court must explain in its opinion why it has “concluded that a reasonable factfinder
could not have credited disputed evidence in favor of the finding.” [Internal
quotation marks omitted]. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Here, there
is no disputed evidence to credit. Even though the record in this case hinges almost
entirely on weighing testimony from both the plaintiffs and the defendant, Salazar
never actually contradicted the Brookses’ testimony. In addition, Salazar did not
contradict the testimony provided by Short who was an impartial eyewitness.
Viewing all of the evidence in a neutral light and considering both the
evidence in favor of and contrary to the challenged finding, I believe the jury’s
finding of no negligence on the part of Salazar was so against the great weight and
preponderance of the evidence as to be manifestly unjust. See Mar. Overseas Corp.,
971 S.W.2d 402, 407 (Tex. 1998). Because the majority finds the evidence sufficient
to uphold the jury’s verdict, I dissent.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Christopher, Wise, and Zimmerer (Wise, J., majority).
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