Opinion
No. 04–11–00459–CV.
2012-12-5
VIA METROPOLITAN TRANSIT, Appellant v. Gerald Anthony GARCIA, Appellee.
Nissa M. Dunn, Law Offices of Nissa Dunn, P.C., San Antonio, TX, for Appellant. John Milano, Jr., Law Office of John Milano, Jr., Richardson, TX, Arthur Stanley Bernstein, LeGrand & Bernstein, P.C., Mark Kosanovich, Fitzpatrick & Kosanovich, P.C., San Antonio, TX, for Appellee.
Nissa M. Dunn, Law Offices of Nissa Dunn, P.C., San Antonio, TX, for Appellant. John Milano, Jr., Law Office of John Milano, Jr., Richardson, TX, Arthur Stanley Bernstein, LeGrand & Bernstein, P.C., Mark Kosanovich, Fitzpatrick & Kosanovich, P.C., San Antonio, TX, for Appellee.
Sitting: REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice.
OPINION
Opinion by: REBECCA SIMMONS, Justice.
Gerald Anthony Garcia brought a negligence action against VIA Metropolitan Transit. The jury found VIA negligent and awarded damages to Garcia. In a single issue, VIA contends the trial court erred in refusing to submit to the jury its requested questions on Garcia's negligence and proportionate responsibility. We affirm the trial court's judgment.
BACKGROUND
On October 5, 2004, Garcia, a motorcycle traffic officer with the San Antonio Police Department, responded to a request for assistance from an officer who had been hit by a vehicle. Officer Garcia testified that when he arrived at the accident scene at the intersection of Basse Road and Blanco Road, there was heavy traffic congestion. In an effort to relieve the congestion and to prevent further accidents, Officer Garcia began directing traffic.
After several minutes, Garcia observed a VIA van stopped in a southbound lane of Blanco Road. Garcia made eye contact with the van driver, Edward Bates, and the driver acknowledged him. Garcia then “motioned for the VIA [van] to proceed southbound.” The VIA van began moving southbound as directed by Garcia. Both Garcia and Bates agree that while the van was still transiting the intersection, Garcia turned his head (not his body) to look at the drivers in the northbound lanes, and he directed them to proceed northbound. While Garcia's head was turned towards the northbound traffic, the van struck Garcia with its mirror. Bates claimed he was traveling at approximately 5–10 miles per hour when the mirror struck Officer Garcia in the left shoulder. The impact propelled Garcia several feet from where he stood. He fell to the ground and grabbed his shoulder in pain. Bates offered no explanation for the incident other than he did not see Garcia at the moment of impact.
Garcia sued VIA alleging the van operator's negligence proximately caused his injuries. Specifically, Garcia alleged the van operator was negligent in failing to (1) maintain a proper lookout, (2) apply the brakes in a timely manner, and (3) maneuver the van to avoid hitting Garcia. Citing section 544.007 of the Texas Transportation Code, Garcia also alleged the van operator was negligent per se in failing to yield the right-of-way to a pedestrian lawfully in an intersection. VIA generally denied Garcia's allegations, and asserted several defenses, including negligence by Garcia in failing to keep a proper lookout.
The case was tried to a jury. VIA asked the trial court to submit questions to the jury on Garcia's alleged negligence and proportionate responsibility, but the trial court refused. After deliberating, the jury found VIA's negligence proximately caused Garcia's injuries and found damages in the amount of $119,100.92. The trial court determined prejudgment interest to be approximately $30,507.00. However, based on the verdict and the parties' stipulations that VIA's liability was limited by the Texas Tort Claims Act, the trial court rendered judgment in favor of Garcia and awarded him $100,000.00 in actual damages, and any post-judgment interest accrued until paid. It taxed costs of court against VIA. VIA appealed.
Right to Jury Questions
In its sole issue on appeal, VIA contends the trial court erred by refusing to submit its requested jury questions regarding Garcia's negligence and his proportionate responsibility. VIA asserts there was evidence to support the requested submissions and that it submitted the requested questions in substantially correct form.
Garcia responds that VIA failed to produce any evidence of Garcia's negligence in part because there was no testimony concerning the standard of care of a traffic officer directing traffic or that Officer Garcia breached that standard of care. Furthermore, Garcia asserts that VIA's requested jury questions were not tendered in substantially correct form and were therefore properly refused.
Because we decide the propriety of VIA's negligence and proportionate responsibility questions on other grounds, we do not address the questions' form.
Standards of Review
A trial court must submit to the jury the questions “which are raised by the written pleadings and the evidence.” Tex.R. Civ. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex.2002). The rule imposes “a substantive, nondiscretionary directive to trial courts [that requires] them to submit requested questions to the jury if the pleadings and any evidence support them.” City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 746 (Tex.App.-Fort Worth 2008, pet. dism'd) (citing Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992)). Accordingly, we review the trial court's refusal to submit questions de novo. Fin. Ins. Co. v. Ragsdale, 166 S.W.3d 922, 926 (Tex.App.-El Paso 2005, no pet.); see Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex.1992) (per curiam) (holding it is reversible error to deny submission of a question raised by the pleadings and the evidence).
In determining whether expert testimony is necessary, we also apply a de novo standard of review. See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex.2004).
Analysis
A. Traffic Officer's Duty and Standard of Care
To determine whether the trial court erred by refusing to submit the negligence and proportionate responsibility questions requested by VIA, we must examine the record for evidence of Garcia's negligence. See Elbaor, 845 S.W.2d at 243. To support the submission of the question of Garcia's negligence to the jury, VIA had to produce some evidence that (1) Garcia owed a legal duty to VIA; (2) Garcia breached that duty; and (3) damages proximately resulted from the breach. See id. (requiring some evidence to warrant submission of a question); Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 663 (Tex.1999) (Baker, J., concurring) (negligence elements). We turn then to the duty owed by Officer Garcia to look out for his safety and the appropriate standard of care owed to the public.
1. VIA's Argument
VIA contends Garcia had a duty to exercise ordinary care for his own safety while he was in the intersection. VIA points to testimony of an eyewitness that Garcia turned his head away from the VIA van before it hit him.
VIA asserts that the witness testimony is evidence that Garcia breached his duty when he failed to keep a proper lookout by (1) choosing to direct traffic in a manner in which the traffic passed both in front of and behind him, and (2) turning his head in the opposite direction after he made eye contact with the VIA van's driver and motioned the van to proceed southbound through the intersection.
Kenneth Draper witnessed the accident and although he stated it was the VIA van driver's responsibility to make sure the van did not hit Garcia, he also stated: “I would think that at some point if you saw a bus coming at you, and you know there's a mirror sticking out, I would think maybe take a step forward or something.”
2. Garcia's Argument
Garcia responds that the standard of care applicable to a traffic officer is different than that applicable to a pedestrian. He asserts that because traffic control requiresspecialized training, expert testimony is required. Garcia insists that VIA failed to produce expert testimony establishing (1) the standard of care for a traffic officer acting under the duty to direct traffic and (2) that Garcia committed an act or omission that breached that duty.
We first address the standard of care applicable to Garcia and then examine whether expert testimony was necessary to establish the standard and breach.
3. Duty of Care
“The existence of a duty is a question of law for the court to decide from the particular facts of the case.” Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 289 (Tex.1996). Texas has long recognized the duty of every adult to exercise ordinary care for his own safety, including the duty to keep a proper lookout. See Lopez v. Lone Star Beer, Inc. of Corpus Christi, 465 S.W.2d 774, 779 (Tex.Civ.App.-Corpus Christi 1971, writ ref'd n.r.e.). This duty has been applied to pedestrians, motorists, and street workmen. See Murphy v. Hammons, 509 S.W.2d 845, 845–46 (Tex.1974) (pedestrian); Montes v. Pendergrass, 61 S.W.3d 505, 509 (Tex.App.-San Antonio 2001, no pet.) (motorists); Lopez, 465 S.W.2d at 779 (street workmen). But we find no cases that describe the standard of care owed by a police officer performing his duty to direct traffic.
VIA compares Garcia's duty to that of a pedestrian to exercise ordinary care for his safety and keep a proper lookout, and directs us to cases involving accidents between vehicles and pedestrians in which there was some evidence to support the pedestrian's failure to keep a proper lookout. E.g., Montes, 61 S.W.3d at 509. But none of VIA's cited cases involve a police officer charged with the duty to direct traffic at a busy intersection. VIA concludes that “Garcia had a duty to exercise ordinary care for his own safety, regardless of the fact that he was lawfully in the intersection directing traffic as part of his duties as a police officer.” But we are not persuaded that Garcia's standard of care in directing traffic at a busy intersection is the same as a pedestrian's to keep a proper lookout while crossing the street.
At trial, the parties agreed that Garcia was acting in his role as a police officer charged with directing traffic at the intersection when he was struck by the VIA van. As noted above, VIA contends Garcia was negligent because he (1) controlled the intersection, (2) could have stopped the northbound traffic until the southbound VIA van cleared the intersection, and (3) deliberately turned his attention away from the VIA van before it passed by the point where he was standing to direct traffic. VIA characterizes this case as one involving an “accident between a bus and a pedestrian.” But its negligence claims relate to actions Garcia took or did not take while performing his duty to direct traffic. Vested with the authority to regulate traffic, Garcia had a duty and corresponding standard of care to protect his own safety that was dramatically different than that of an ordinary pedestrian. 4. Duty When Regulating Traffic a. Official Function
Traffic regulation is a governmental function. Tex. Civ. Prac. & Rem.Code Ann. § 101.0215(a)(21) (West 2005). Texas law grants the authority to regulate traffic to state and local governments. SeeTex. Transp. Code Ann.. § 542.202(a)(1) (West 2011). Local governing authorities are vested with authority to control and regulate traffic on their roads, and employ police officers to direct traffic. See id. § 541.002(3)-(4) (local authority, police officer definitions); id. § 542.202 (West Supp.2009) (local authorities); id. § 251.151 (West 1999) (commissioner's court); id. § 701.004 (compensating officers) (West 2011). Not only is a police officer authorized to regulate traffic, “a person may not willfully fail or refuse to comply with a lawful order or direction of” a police officer while directing traffic. Tex. Transp. CodeE § 542.201 (West 2011).
Interestingly, a person may not “injure, knock down, or remove” an official traffic-control device. SeeTex. Transp. Code Ann. §§ 541.002(3)-(4), 544.005 (West 2011).
In contrast, a pedestrian is not authorized to regulate or direct traffic. See Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 227 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (noting that “only government authorities and their agents are entitled to regulate traffic on public roadways”). A pedestrian is typically a person trying to cross a street rather than control traffic in an intersection. E.g., Murphy, 509 S.W.2d at 845–46. A pedestrian's duty in or crossing a street is to keep a lookout merely for his own safety. See id. at 846. c. Police Officer's Duty
On the other hand, police officers are public servants responsible for the public's safety. See, e.g., Hale v. Burgess, 478 S.W.2d 856, 858 (Tex.Civ.App.-Waco 1972, no writ). In performing this responsibility, they are often compelled to sacrifice their own safety to benefit the public. See Blackwell v. Harris Cnty., 909 S.W.2d 135, 137–38, 140 (Tex.App.-Houston [14th Dist.] 1995, writ denied) (recognizing, in the case of a police officer's death while allegedly directing traffic, that police officers' duty may place them in danger for the public's benefit). One of their roles is regulating traffic. Tex. Civ. Prac. & Rem.Code Ann. § 101.0215(a)(21) (West 2005). Directing traffic is dangerous: it requires officers to put their own safety at risk to protect the public from accident, injury, or even death. See Ventura–Salmeron v. State, No. 03–98–00470–CR, 2000 WL 140906, at *1 (Tex.App.-Austin Feb. 3, 2000, pet. ref'd) (not designated for publication) (relating how a pickup truck struck and injured two police officers who were directing traffic at an accident scene on Interstate Highway 35); Hale, 478 S.W.2d at 858 (addressing a case where a police officer at an accident scene was struck by a vehicle and seriously injured). We reject VIA's argument that a police officer directing traffic has the duty of a pedestrian. Instead, we hold that a police officer directing traffic has a duty to keep the lookout that a reasonable police officer would keep while directing traffic under similar circumstances. We next examine whether expert testimony was necessary to establish Garcia's negligence.
B. Expert Testimony Was Necessary to Establish Garcia's Standard of Care and Breach
Garcia maintains that the trial court properly denied VIA's requested questions on Garcia's negligence and proportionate responsibility because VIA presented no expert testimony to establish that Garcia, as a professional law enforcement officer directing traffic, was negligent. VIA responds that expert testimony was unnecessary to assist the jury in determining whether Garcia was negligent because “any ordinary juror” could have reached a decision on the issue of negligence because Garcia was required to keep a lookout similar to that of a pedestrian. We have rejected this standard, and have determined that a traffic officer has a duty to keep a lookout that a reasonable police officer directing traffic would keep under similar circumstances. The remaining question is whether expert testimony was necessary to support VIA's assertion of a breach of that standard.
“ ‘Expert testimony is necessary [to establish the applicable standard of care] when the alleged negligence is of such a nature as not to be within the experience of the layman.’ ” FFE Transp. Servs., 154 S.W.3d at 90 (quoting Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982)); accord Ethicon Endo–Surgery, Inc. v. Gillies, 343 S.W.3d 205, 211 (Tex.App.-Dallas 2011, pet. denied). “In determining whether expert testimony is necessary to establish negligence, Texas courts have considered whether the conduct at issue involves the use of specialized equipment and techniques unfamiliar to the ordinary person.” FFE Transp. Servs., 154 S.W.3d at 91;accord Ethicon Endo–Surgery, 343 S.W.3d at 211. If the conduct at issue involves the use of specialized techniques, then expert testimony is necessary to establish the standard of care and a violation of that standard. See FFE Transp. Servs., 154 S.W.3d at 91;Ethicon Endo–Surgery, 343 S.W.3d at 211 (marketing of specialized medical device required expert testimony to establish negligent marketing).
When a defendant seeks to present a question of the plaintiff's negligence to the jury and the alleged negligence requires expert testimony, the defendant has the burden to produce expert testimony of the plaintiff's negligence. See Elbaor, 845 S.W.2d at 245.
1. VIA's Argument
VIA relies on Lopez v. Lone Star Beer, Inc. of Corpus Christi to support its contention that expert testimony was unnecessary. Lopez v. Lone Star Beer, Inc. of Corpus Christi, 465 S.W.2d 774, 779 (Tex.App.-Corpus Christi 1971, writ ref'd n.r.e.). In that case, a construction worker sued the owner of a truck that backed into him while he was bent over the engine of his pickup truck that was parked perpendicular to the street. Id. at 775–76. The owner claimed the worker's injuries were a result of the worker's failure to keep a proper lookout. See id. at 777. On appeal the court rejected the argument that the worker was subject to a specialized standard of care. Id. at 780.Lopez is readily distinguishable: Lopez was not a traffic officer performing his duty to direct traffic. Unlike Garcia, Lopez was merely a pedestrian. Lopez's standard of care while standing in the street in front of his truck was within the experience of a layman; his standing in front of his truck did not require any specialized skill or training. Cf. Ethicon Endo–Surgery, 343 S.W.3d at 211–12.
2. Evidence of Specialized Techniques
Garcia testified during the trial that directing traffic requires special training and skills not possessed by ordinary pedestrians. Garcia testified that he went through a selection process to be accepted into the traffic division and was then required to undergo additional training above and beyond that of other police officers. VIA concedes that “[p]erhaps Garcia was utilizing traffic control techniques at the time of the accident that are beyond the common knowledge of the jury,” but asserts that Garcia's negligence did not stem from directing traffic but by failing to position himself in a way to avoid the accident. But the question of the appropriateness of Garcia's position cannot be resolved without evidence of how a traffic control police officer would position himself at such an intersection. Cf. Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 797 (Tex.2006) (citing Hoechst Celanese Corp., 899 S.W.2d at 227–28) (recognizing that “peace officers are specifically trained to direct traffic”). 3. Necessity of Expert Testimony
Garcia's testimony at trial, discussed above, supports the conclusion that the conduct at issue—Garcia's actions in directing traffic—involves the use of techniques unfamiliar to the ordinary person. Further, Garcia's alleged negligence is not within the experience of a layman because an ordinary person lacks the requisite authority and training to direct traffic. See FFE Transp. Servs., 154 S.W.3d at 90. Therefore, VIA was required to present expert testimony to establish the standard of care applicable to a law enforcement officer directing traffic and evidence of the breach of that standard. See id. at 90–91. Because VIA presented only the lay testimony of Kenneth Draper, an eyewitness to the accident, VIA failed to produce some evidence that Garcia breached a legal duty to VIA. See Mellon Mortg. Co., 5 S.W.3d at 663 (Baker, J., concurring).
4. No Evidence of Breach
The dissent argues that even if expert testimony was required to establish the standard of care and breach, Garcia's testimony was some evidence to support the submission of a contributory negligence question. However, the record is devoid of any evidence that Garcia was negligent. There is no testimony regarding the standard of care other than Garcia testifying that he acted in accordance with his training. Garcia certainly never testified that he directed traffic improperly when he waived the VIA van through the intersection and turned his head.
The dissent's reliance on Garcia's purported admission of responsibility for the accident is misplaced. Garcia's testimony was focused on VIA's fault in striking him in the intersection. During cross-examination Garcia testified that he was in charge of traffic control in the intersection and was responsible for waiving the VIA van forward. He agreed, to that extent, that he had some responsibility for what ensued. But his testimony continued; Garcia testified that he acted properly when he selected the place to stand and when he looked at opposing traffic shortly before he was struck. Considered in context, Garcia's testimony is a far cry from an admission of culpability or a breach of duty; it is no evidence of negligence.
Conclusion
A police officer directing traffic does not owe the same duty as a pedestrian to keep a proper lookout and exercise ordinary care for his own safety. An officer directing traffic utilizes “techniques unfamiliar to the ordinary person,” thus, Draper's lay testimony was insufficient to establish Garcia's negligence. See FFE Transp. Servs., 154 S.W.3d at 90–91. Because VIA adduced no expert testimony establishing a police officer's standard of care while directing traffic or Garcia's breach of that standard, there was no competent evidence to support VIA's assertion that Garcia was negligent. See Mellon Mortg. Co., 5 S.W.3d at 663 (Baker, J., concurring). We conclude that the trial court did not err in refusing to submit to the jury VIA's requested questions on Garcia's negligence and proportionate responsibility. Therefore, we affirm the trial court's judgment. BARNARD, J. dissenting.
MARIALYN BARNARD, Justice, dissenting.
The majority opinion, which holds VIA is not entitled to jury questions on contributory negligence or proportionate responsibility, is based on two premises: (1) expert testimony was necessary on the alleged contributory negligence of Garcia before VIA was entitled to a contributory negligence and proportionate responsibility jury charge; and (2) there was no expert testimony presented on the issue of contributory negligence. Because I disagree with both premises, I respectfully dissent.
Necessity of Expert Testimony
Garcia contends it was incumbent upon VIA to establish, through expert testimony, the standard of care applicable to Garcia and that the standard was breached. Garcia argues that because VIA presented no expert testimony to establish that Garcia, as a professional law enforcement officer directing traffic, was negligent, the trial court properly denied its requested questions on contributory negligence and proportionate responsibility. VIA counters that expert testimony was unnecessary to assist the jury in determining whether Garcia was contributorily negligent because VIA never asserted that Garcia's negligence in directing or controlling traffic was a cause of his injuries; rather, VIA has always claimed Garcia was negligent in failing to keep a proper lookout and failing to position himself so as to avoid an accident. In determining whether expert testimony was necessary, we apply a de novo standard of review. See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 89 (Tex.2004).
“Expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of laymen.” Id. at 90 (quoting Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982)). In essence, Garcia contends, and the majority agrees, expert testimony was necessary to support a claim that Garcia was negligent because a different standard of care applies to him as a police officer directing traffic in a busy intersection, i.e., the standard of care applicable to a reasonably prudent traffic officer, which could only be presented to the jury through expert testimony. I contend this is incorrect based on the pleadings and evidence in this case.
Texas has long imposed a duty on adults to exercise ordinary care for their own safety, which includes the duty of pedestrians to keep a proper lookout. E.g., De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 98 (1955) (holding that every person proceeding along or across public street is under duty at all times to maintain proper lookout for his own safety, and may not proceed blindly and in disregard of dangers that might reasonably be anticipated to exist); Brown v. Dallas Ry. & Terminal Co., 226 S.W.2d 135, (Tex.Civ.App.-Amarillo 1949, writ ref'd) (holding that mere fact person has right of way under statute or ordinance does not excuse him from keeping proper lookout for his own safety); Norris Bros. v. Mattinson, 145 S.W.2d 204, 208 (Tex.App.-Fort Worth 1940, no writ) (holding law requires each and every person traveling upon or across public thoroughfares to keep proper lookout for his own safety); Stehling v. Johnston, 32 S.W.2d 696, 698 (Tex.App.-San Antonio 1930, writ ref'd) (holding pedestrian has duty to protect himself from heedless acts of others as may be anticipated or foreseen from his vantage point). A proper lookout is one that a person of ordinary care would keep under the same or similar circumstances. Stehling v. Johnston, 32 S.W.2d 696, 698 (Tex.Civ.App.-San Antonio 1930, writ ref'd). In other words, a proper lookout requires a person “ ‘to see what a person in the exercise of ordinary care and caution for the safety of herself and others would have seen under like circumstances,’ taking steps to guard against accidents as necessary.” Montes v. Pendergrass, 61 S.W.3d 505, 509 (Tex.App.-San Antonio 2001, no pet.) (quoting Lopez v. City Towing Assocs., Inc., 754 S.W.2d 254, 263 (Tex.App.-San Antonio 1988, writ denied)).
In the traffic context, a proper lookout encompasses the duty to observe, in a careful and intelligent manner, traffic and the general situation in the vicinity, including the speed and proximity of vehicles, rules of the road, and common experience. Montes, 61 S.W.3d at 509. Although one is not required to anticipate negligent or unlawful conduct by others, a person may not close his eyes “to that which [is] plainly visible and which would have been observed by a person of ordinary prudence similarly situated.” Id. (quoting Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 275 (1958)). This standard of care is, in my opinion, within the ken of laymen, and therefore does not require expert testimony.
Garcia, however, claims expert testimony was required because he was an officer directing traffic in a busy intersection, utilizing specialized training, standard, and techniques unfamiliar to laymen. In other words, Garcia contends, and the majority agrees, Garcia is governed by a specialized standard of care. In support of his position, Garcia cites numerous cases in which courts held expert testimony was required. However, in each of the cases cited by Garcia, the alleged negligence flowed from the use of the specialized equipment or industry standards. For example, Garcia relies on this court's opinion in Greater San Antonio Transp. Co. v. Polito, No. 04–10–00330–CV, 2011 WL 2893080 (Tex.App.-San Antonio 2011, pet. denied) (mem. op.). In that case, Polito was injured when his motorcycle was struck by a cab. Id. at *1. At trial, the cab driver testified the radio in his cab “made a loud feedback noise,” which he had heard only twice before in three years. Id. He testified he leaned down to adjust the radio when the accident occurred. Id. There was other testimony at trial that the cab driver was distracted by looking down at the computer in his taxi when the accident occurred. Id. at *2. The evidence showed the computer monitor has a screen that displays written messages and buttons to push to accept or reject a call. Id. The cab company presented a witness who testified that equipment placement in the company's cabs is based on industry standards, and cabs are inspected every six months by the police department for compliance with safety standards. Id. at *1.
Polito's negligence claims were based in part on the placement of the radio, the sound of the radio, and the placement of the computer monitor. Id. at *2. Based on the placement of the equipment in the cab, the jury found the cab company thirty percent negligent. Id. at *1. On appeal, the cab company argued the evidence was insufficient to support the jury's negligence finding against the cab company because the case involved specialized equipment and industry standards, requiring Polito to provide expert testimony with regard to the standard of care, which he failed to do. Id. at *2. This court agreed, holding that the case involved “specialized equipment unique to taxi cabs,” the use of which was unfamiliar to a lay person. Id. at *4. We noted few people outside the taxi industry are familiar with dispatch equipment, the manner in which it functions, and the placement of such equipment. Id. However, we were careful to point out that Polito's claims were in fact based on the placement of the equipment, not merely on the fact that the cab was equipped with dispatch equipment, and therefore expert testimony was required. Id.
Unlike Polito, VIA's claim that Garcia was negligent was not based on his use of specialized equipment or even training in directing or controlling traffic. Rather, the record makes it clear that VIA was asserting Garcia was negligent in turning away from the VIA van before it passed him, and in failing to properly position himself so as to avoid the accident. In other words, VIA merely contended that Garcia failed to maintain a proper lookout. Thus, any specialized information regarding traffic direction or control techniques, or specialized equipment was unnecessary. Certainly, an ordinary juror could determine whether Garcia could have avoided being struck by the van by either keeping his eye on the van until it cleared the intersection or by positioning himself out of harm's way, or whether the exercise of ordinary care required that he do so under the circumstances.
In my opinion, this case is more analogous to the decision in J.D. Abrams, Inc. v. McIver, 966 S.W.2d 87 (Tex.App.-Houston [1st Dist.] 1998, pet. denied), which is relied upon by VIA. In that case, a motorist was injured when he was rear-ended by an intoxicated driver on a portion of a highway that was under construction. Id. at 90. The plaintiff sued the intoxicated driver and two construction companies that controlled the portion of the highway where the accident occurred. Id. A jury found all three defendants negligent and apportioned responsibility as follows: seventy-five percent to the intoxicated driver, twenty percent to one construction company, and five percent to another construction company. Id. On appeal, the construction company found twenty percent responsible argued there was insufficient evidence to support the jury's finding that it was negligent. Id. at 92. Specifically, the company claimed the plaintiff failed to present expert testimony establishing the standard of care applicable to a highway construction company “performing sophisticated operations” or that a breach of such a standard occurred. Id. at 93.
The court of appeals recognized that some cases require expert testimony because the alleged negligence in not within the common experience of the average laymen. Id. However, the court held this was not such a case, holding that driving an automobile in areas of road construction and automobile accidents are not outside the understanding of the average layman. Id. Moreover, neither the use of specialized equipment nor construction techniques, even though likely in use at the time of the accident, were not at issue in the accident itself. Id. Accordingly, the court held the plaintiff was not required to present expert testimony to establish the proper standard of care for the construction company. Id.
This case involves an accident between a van and a pedestrian—Garcia brought this suit in his capacity as an individual, not as a police officer—and therefore, the ordinary rules of the road relating to such situations are within the common knowledge and understanding of the average juror. Moreover, just as in J.D. Abrams, Garcia's specialized training in traffic control or traffic control procedures were not at issue. The majority makes much of the parties agreement “that Garcia was acting in his role as a police officer charged with directing traffic at the intersection when he was struck,” and in fact relies upon it heavily in reaching its conclusions. However, VIA never argued or in any way contended that Garcia's negligence in directing or controlling traffic was a cause of his injuries; rather, VIA has always claimed Garcia was negligent in failing to keep a proper lookout and failing to position himself so as to avoid an accident.
If we accept Garcia's contention, we would be holding police officers, who according to the majority are better trained and have more skills than the average person to a more liberal standard of care than that long-imposed on regular pedestrians. And, although the majority is correct that there is no specific case rejecting a special standard of care for officers in this type of situation, a special standard of care has been rejected for workmen whose job duties require them to work in the street around traffic. See Lopez v. Lone Star Beer, Inc. of Corpus Christi, 465 S.W.2d 774, 779 (Tex.App.-Corpus Christi 1971, writ ref'd n.r.e.).
In Lopez, an injured street construction worker sued the owner of a truck that backed into him. Id. at 775. At trial, the jury found in response to special issues that the cause of the worker's injuries was his failure to keep a proper lookout. Id. at 778–79. The trial court therefore entered a take nothing judgment in favor of the defendant. Id. On appeal, the worker complained of the special issues relating to his negligence, arguing he was not subject to the ordinary standard of care applicable to regular pedestrians, as submitted by the court, but was subject to a specialized standard of care applicable to road construction workers. Id. at 779. The court of appeals rejected this argument, pointing to the long-standing law in Texas that it is the duty of every adult to exercise ordinary care for his safety. Id. at 779. The court said it was sufficient that the jury was advised to measure the worker's conduct against the level of conduct expected of the ordinary man in the same or similar circumstances. Id. In other words, the worker's conduct would be measured against that of a workman or ordinary prudence lawfully working in a street partially open to traffic. Id.
Thus, according to the holding in Lopez, Garcia's conduct would be measured against the level of conduct expected of a police officer lawfully directing traffic in a busy, congested intersection. See id. This is exactly what the jury was instructed to do pursuant to the trial court's definition of ordinary care, “that degree of care which would be used by a person of ordinary prudence under the same or similar circumstances.” I have found no authority, nor has the majority or Garcia cited any, that would accord police officers to a more liberal standard of care than that of an ordinary, prudent person in the same circumstance.
Moreover, the majority's decision to accept Garcia's claim that expert testimony is required, i.e., that he is entitled to a specialized standard of care, is not supported by the instruction that accompanied the negligence question actually submitted to the jury. The jury was instructed that:
The law forbids failing to yield the right-of-way to pedestrians lawfully in the intersection. A failure to comply with this law is negligence in itself.
(emphasis added). This instruction, which the majority wholly ignores, is a negligence per se instruction and was requested by Garcia and submitted over VIA's objection. The instruction, as pointed out by VIA in its brief, treats Garcia as an ordinary pedestrian, advising the jury that if Garcia was lawfully in the intersection as a pedestrian, it was negligence per se for the VIA van to fail to yield the right of way to him. Garcia argued he was entitled to this instruction, yet he seeks to avoid the reciprocal duty of a pedestrian to keep a proper lookout by claiming he is entitled to a specialized standard of care. This is an inconsistent position.
Finally, submitting Garcia's negligence, as requested by VIA, would have permitted the jury to take into account all the circumstances pointed to by Garcia to support his request for a special standard of care. The jury would have considered whether Garcia, as a police officer who was lawfully directing traffic in a congested intersection, did what a prudent police officer in the same or similar circumstances would have done. If the issue of Garcia's alleged negligence was properly submitted to the jury, the jury would have been required to determine: (1) whether Garcia exercised care in turning his focus away from the VIA bus, or whether he should have watched the van proceed through the entire intersection before turning his to direct traffic in the opposite direction; (2) whether Garcia positioned himself appropriately under the circumstances; and (3) whether Garcia, in the exercise of reasonable care required of an ordinary person in the situation could have avoided the accident. I believe the jury could have determined the answers to these questions without the aid of expert testimony. Accordingly, I would hold expert testimony was not required.
Existence of Expert Testimony
However, even if the majority is correct, and expert testimony was required, there is expert testimony in the record sufficient to entitle VIA to its requested jury questions on contributory negligence and proportionate responsibility. The evidence was provided by Garcia himself.
Garcia testified he began his career as a police officer in 1985 when he began the training process. He started his career as a patrol officer and remained in that position for seventeen or eighteen years. However, Garcia stated he ultimately left the patrol division and went into the traffic division, testifying he always wanted to be a motorcycle officer. He spent a year as a “regular” traffic officer before he became a motorcycle officer. As a traffic officer he was responsible for handling anything on the roads: accidents, debris in the roadway, malfunctioning traffic lights, etc. After a year, he went to motorcycle school for more specialized training. As an officer, he had been directing traffic for twenty-six years.
Garcia testified he was trained to direct traffic and had directed traffic “[t]housands of times.” He described how he was taught to position himself in intersections for purposes of directing traffic. He testified about a driver's responsibility at an intersection when the traffic is controlled by a police officer. Clearly, Garcia, by his own admission, is an expert in directing and controlling traffic.
Here, Garcia testified he was in charge of the intersection, completely in control of the situation, and had the right and responsibility to “tell [the VIA driver] what to do—whether to go, to stop, to move or what to do.” He acknowledged the van took up all but 7.2 inches on either side of the lane in which it travelled, and that he could have stopped the northbound traffic while the van proceeding through the intersection to ensure there was enough space for him to safely pass.
Garcia admitted his position at the scene was at his discretion; he was the one to determine where it would be best or most safe to stand. He chose to position himself in the middle of the intersection where traffic was passing in front of and behind him. Garcia agreed he could have positioned himself where all the traffic passed in front of him.
Garcia admitted waving the van into the intersection and then turning his head away. Specifically, he stated that after he made eye contact with the VIA driver and waived him forward, he “turned [his] head” away from the van, focusing his attention on the vehicles in the northbound land. Significant to the issue in this appeal, Garcia agreed with VIA's counsel when counsel asked if Garcia agreed with a witness who testified that Garcia had “a measure of responsibility for what happened in this accident.”
Garcia's expert testimony constitutes some evidence from which reasonable jurors could have believed Garcia failed to exercise ordinary care for his own safety. This evidence was also sufficient to allow a jury to find Garcia's negligence was a proximate cause of the accident, i.e., if he had exercised ordinary care-positioned himself so all traffic passed in front of him, stopped the northbound traffic to allow the VIA van to safely traverse the intersection, kept his eyes on the VIA van as it approached him-he could have avoided the accident. The evidence set forth above would enable reasonable and fair-minded people to find Garcia's actions were negligent and caused or contributed to the cause of the accident. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005) (test for legal sufficiency is whether evidence at trial would enable reasonable and fair-minded people to reach the verdict).
Here, Garcia, by his own admission, placed himself where traffic would cross in front and behind him. He admittedly made eye contact with the VIA driver and then waved him into the intersection. Garcia could see the size of the van, and had to be aware that it would take up a great deal of the lane, particularly with its extended mirrors. Despite this knowledge, Garcia turned his head away from the van, and the potential danger, to direct traffic in the opposite direction to move forward. Any juror could recognize the potential folly in this course of action—a large van with extended mirrors coming toward you with very little clearance between Garcia and the van.
Given that to be entitled to submission of a jury question, there need only be legally sufficient evidence, i.e., some evidence, I do not believe the majority's position is tenable. See Block v. Mora, 314 S.W.3d 440, 445 (Tex.App.-Amarillo 2009, pet. dism'd). When we look only at the evidence supporting Garcia's negligence and ignore all evidence to the contrary, there is at least some evidence, expert evidence, of Garcia's negligence. Id. (citing Elbaor, 845 S.W.2d at 243).
By this, I do not mean to suggest that Garcia is, in fact, contributorily negligent. Rather, I only contend that there is some evidence, such that the matter is one left to the trier of fact to decide. The trier of fact might determine, given the circumstances, that Garcia was not negligent, that he was acting as a reasonably prudent police officer in the situation should act. But again, the question is one for the jury given the evidence.
Conclusion
Because I do not believe expert testimony was required in this matter, and believe that even if it was, there was some expert testimony—albeit provided by Garcia himself—so as to place the issue of Garcia's negligence within the province of the jury. Accordingly, I dissent.