Burnett v. Rios

549 S.W.3d 214
CourtCourt of Appeals of Texas
DecidedApril 17, 2018
DocketNO. 14-17-00438-CV
StatusPublished
Cited by1 cases

This text of 549 S.W.3d 214 (Burnett v. Rios) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnett v. Rios, 549 S.W.3d 214 (Tex. Ct. App. 2018).

Opinion

Marc W. Brown, Justice

Appellant Theresa D. Burnett, the plaintiff in a personal-injury car-accident case, appeals a take-nothing final judgment in favor of appellee Maria D. Rios. Burnett argues that she should be granted a new trial because: (1) the jury findings on general liability and percentage causation were in irreconcilable conflict; (2) the trial court sua sponte accepted the jury's verdict without allowing Burnett a sufficient opportunity to object before the jury was released; (3) the jury's finding that Rios was zero-percent comparatively negligent was not supported by factually sufficient evidence; and (4) that finding also was not supported by legally sufficient evidence. We affirm.

I. BACKGROUND

At approximately 7:30 a.m. on March 21, 2012, Maria Rios dropped off her daughter at Cesar E. Chavez High School. Rios then attempted to turn left across incoming traffic at the break in the median. Theresa Burnett was driving to the same school where she worked as a teacher's assistant, traveling at approximately 35 mph. Rios did not see Burnett's vehicle and started turning left. Rios stopped when she saw Burnett's vehicle, but the two vehicles collided. Both vehicles were drivable. No ambulance was dispatched.

Burnett experienced neck and back pain or soreness later in the day. After school ended for the day, Burnett went to the emergency room and received medical treatment for neck pain. Burnett later received additional chiropractic and medical treatment. In November 2013, Burnett had surgery to fuse a degenerative herniated cervical disc.

Burnett previously had been involved in a four-car accident in May 2010-her vehicle was at a standstill and was hit from the rear. Burnett experienced neck and back pain, went to the emergency room, and received medical treatment. An x-ray taken at that time noted degenerative changes in Burnett's spine. Burnett did not follow the recommendation to see her own physician for reassessment.

Burnett brought suit against Maria Rios for negligence and against Rios's husband Hector for negligent entrustment of his vehicle.1 Rios filed a general denial and pleaded proportionate responsibility under chapter 33 of the Texas Civil Practice and Remedies Code.

The case went to jury trial. Rios and Burnett testified. In addition, Burnett presented testimony from an orthopedic surgeon-Stephen *218Esses, M.D.-by video deposition.2

In question number 1 of the charge, the jury was asked did the negligence, if any, of Rios and Burnett proximately cause the occurrence in question.3 "Occurrence in question" was defined as "the collision that occurred on March 21, 2012 involving Theresa Burnett and Maria Rios." Question number 1 also included definitions for "negligence," "ordinary care," and "proximate cause."4 The jury answered "yes" as to both Rios and Burnett.

If the jury answered "yes" for both Rios and Burnett on question number 1, then it was to answer question number 2: "What percentage of the negligence that caused the occurrence do you find to be attributable to each of those found by you, in your answer to Question 1, to have been negligent?" The jury was instructed:

Assign percentages of responsibility only to those you found caused or contributed to cause the injury[.] The percentages you find must total 100 percent[.] The percentages must be expressed in whole numbers[.] The percentage of responsibility attributable to any one is not necessarily measured by the number of acts or omissions found[.] The percentage attributable to any one need not be the same percentage attributed to that one in answering another question[.]

At the end of this instruction, the jury was asked:

For each person you found caused or contributed to cause the injury, find the percentage of responsibility attributable to each[.5 ]

*219The jury answered "0%" for Rios and "100%" for Burnett. Because question number 3 on damages was predicated on a "Yes" answer for Rios on question number 1 and either of a "No" answer for Burnett on question number 1 or a fifty-percent-or-less answer for Burnett on question number 2, the jury did not reach question number 3. Neither Burnett nor Rios objected to the jury charge.

The trial court read the verdict aloud, accepted it, and made it part of the court's record. Trial counsel for Burnett raised an objection "to the entry of the actual verdict itself based on the fact that the jury answered to negligence to both parties, but then answered zero percent and 100 percent." The trial court stated that the jury had been released and restated that the verdict was accepted.

The trial court signed its final judgment, ordering that Burnett take nothing against Rios. Burnett filed a motion for new trial, arguing that a new trial should be granted because: (1) the general-liability and percentage-causation jury answers were in conflict; (2) the jury's finding attributing zero-percent liability to Rios was against the great weight and preponderance of the evidence; and (3) the evidence established as a matter of law that Rios was more-than-zero-percent legally responsible. The trial court denied Burnett's motion for new trial, and Burnett timely appealed.

II. ANALYSIS

Although Burnett presents four issues in the "Issues Presented" section of her brief, she includes six subheadings in her "Argument" section without particular reference to a corresponding issue number. We address her arguments in connection with her listed issues.

A. No fatal conflict between the jury's liability and proportionate-responsibility findings

We first consider Rios's threshold argument that Burnett waived her first issue regarding the perceived irreconcilable conflict in the jury's verdict by not objecting before the jury was discharged. Rios relies on Cressman Tubular Products Corp. v. Kurt Wiseman Oil & Gas, Ltd. , 322 S.W.3d 453, 462 (Tex. App.-Houston [14th Dist.] 2010, pet. denied), where we applied the principle that "[a] complaint that the jury's findings are inconsistent is waived if it is not raised before the jury is discharged."

Burnett acknowledges that generally a party must raise an objection under Texas Rule of Civil Procedure 295 before the trial court accepts the verdict or the conflict in the jury's answers is waived. See Tex. R. Civ. P. 295. According to Burnett, trial counsel promptly objected to the conflicting jury answers at the first opportunity. Burnett also contends that the appellate rules, such as preservation under rule 33.1, are to be liberally construed in favor of the right to appeal.

The trial transcript contains the notation "(Jury released)" just before Burnett's trial counsel informed the trial court that he "wanted to put an objection on the record" and objected to the entry of the verdict. However, the trial court did not announce on the record that the jury had been released until after Burnett had lodged her objection.

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Bluebook (online)
549 S.W.3d 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnett-v-rios-texapp-2018.