Jordan v. Sava, Inc.

222 S.W.3d 840, 2007 Tex. App. LEXIS 2881, 2007 WL 1119931
CourtCourt of Appeals of Texas
DecidedApril 12, 2007
Docket01-03-00554-CV
StatusPublished
Cited by39 cases

This text of 222 S.W.3d 840 (Jordan v. Sava, Inc.) 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
Jordan v. Sava, Inc., 222 S.W.3d 840, 2007 Tex. App. LEXIS 2881, 2007 WL 1119931 (Tex. Ct. App. 2007).

Opinions

OPINION ON REHEARING

EVELYN V. KEYES, Justice.

On December 14, 2006 we issued an opinion on rehearing that granted the motion for rehearing of our opinion of May 19, 2005, filed by appellant, Maethenia Jordan. See Tex.R.App. P. 49.7.1 A dissenting opinion was also issued on December 14, 2006. Appellees, Sava, Inc. and John D. Moore, filed a response to the motion for rehearing. On January 5, 2007, we sua sponte withdrew the December 14, 2006 opinion on rehearing, dissenting opinion, and accompanying judgment to consider this case in light of Bed, Bath & Beyond, Inc. v. Urista, which was recently decided by the Texas Supreme Court. See 211 S.W.3d 753 (Tex.2006). We now deny the motion for rehearing, withdraw our opinion and judgment of May 19, 2005, and issue this opinion on rehearing and accompanying judgment in their stead.

Appellant, Maethenia Jordan, appeals a take-nothing judgment rendered in her personal injury suit against appellees, Sava, Inc. and John D. Moore. In seven issues, Jordan contends (1) the trial court erred in denying her challenges for cause of two jurors who admitted bias; (2) everyday rush-hour traffic in Houston does not constitute a “sudden emergency” justi-[844]*844lying a jury instruction; (3) Moore’s and Sava, Inc.’s counsel improperly embellished and mischaracterized the court’s charge; (4) an “eggshell skull” instruction should have been given to the jury; (5) the trial court should not have rendered a directed verdict for Sava, Inc.; (6) the jury’s answer to question one, regarding Moore’s liability, was wrong as a matter of law and was against the great weight and preponderance of the evidence; and (7) the jury’s answer to question two, regarding damages, was against the great weight and preponderance of the evidence.

We affirm.

Facts

On September 20, 1999, Moore was driving a tractor-trailer rig, minus the trailer, on Loop 610 North in Houston. The speed limits were a minimum of 40 and a maximum of 55 mph; Moore’s speed was approximately 45 mph.2 As Moore crested a hill just before the Wayside exit, he came upon a motionless line of cars in the same lane waiting to exit. The car directly in front of Moore swerved into the left lane; Moore swerved into the emergency lane to the right of the exit lane. Moore shifted down and intentionally “rode the guardrail” as he proceeded, to augment his attempt to bring the rig to a stop, but he drove over some grass on the side of the road that caused the rig to skid slightly. Moore passed as many as eight to 15 cars before the emergency lane merged into the exit lane and ended. To the right of the emergency lane was a drop-off over an embankment. When Moore realized he was running out of room as the emergency lane merged with Jordan’s lane, Moore thought he could steer through an opening of 10 to 12 feet between Jordan’s Ford Expedition and the car behind it. Instead, his tractor-trailer cab collided with the rear end of Jordan’s Expedition, spinning the Expedition 180 degrees before traveling across the freeway and coming to rest against the divider between the oncoming lanes of traffic.3

Moore and his front-seat passenger, Jesse McGraw, an emergency medical technician (EMT), checked on Jordan and her passenger and called Emergency Medical Services (EMS). Jordan was taken to a local hospital by ambulance. She had injured her back, resulting in a number of physical and practical impairments to her life. A police officer who happened to be traveling along this route stopped to investigate the accident. He issued Moore a citation for “failure to control speed,” but did not cite him for speeding.

Jordan sued Moore for negligence and sued the company that owned the tractor-trailer, Sava, Inc., for, among other causes of action, negligent entrustment under the doctrine of respondeat superior. After a jury trial in which the jury determined that Moore was not liable, the trial court rendered a take-nothing judgment for Jordan with prejudice.

Challenges to Venire Members

In her first issue, Jordan contends the trial court erred by denying her challenges for cause to two jurors who she contends were biased in favor of Moore, thereby forcing her to use peremptory strikes on [845]*845these jurors instead of on two other jurors whom she found objectionable.

Standard of Review

A person is disqualified to serve as a petit juror if he has a prejudice for or against a party in the case. Tex. Gov’t Code Ann. § 62.105(4) (Vernon 2005). A person may be disqualified if the prejudice extends to the subject matter of the litigation, including damages for pain and suffering. See Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963); see also Houghton v. Port Terminal R.R. Ass’n, 999 S.W.2d 39, 45-46 (Tex.App.-Houston [14th Dist.] 1999, no pet.). We review a trial court’s decision to disqualify a panel member under an abuse of discretion standard. Buls v. Fuselier, 55 S.W.3d 204, 210 (Tex.App.-Texarkana 2001, no pet.). A trial court abuses its discretion in refusing to disqualify a venire member only if the record shows that the venire member was not able or willing to set aside personal beliefs to act impartially. Id. at 210. A trial court’s overruling a challenge for cause carries with it an implied finding that bias does not exist to the degree that it constitutes disqualification. Id. at 209-10. Thus, when the evidence does not conclusively establish a venire member’s disqualification, we consider the evidence in the light most favorable to the trial court’s ruling. Id. at 210.

Venire Member Number 17

During voir dire, venire member 17 expressed reservations about awarding a plaintiff damages for pain and suffering. The following colloquy took place:

[Counsel]: [I]n terms of an award above and beyond just medical bills, whether they have seen a doctor or not, would you have a hard time doing that?
[No. 17]: Yes.
[Counsel]: [G]iven that you feel that way ... do you think you could be an impartial juror, given the fact that you have those beliefs when at the end of this trial you will be asked — there will be a blank for pain and suffering and mental anguish.
[No. 17]: That is pretty tough. I haven’t heard the case yet. Yes, I think I would have trouble. Would it affect me? Yes, because that is just the way I believe. That is the way I would feel.

Shortly thereafter, the trial court individually questioned this venire member, as follows:

[Court]: I think what we are dealing with here is the law allows the prevailing party who has suffered a personal injury in a proper case to recover their medical bills from a party that caused them that injury if certain findings are made. Assuming all of that, what he is asking you about is one of the things that the law allows you to recover. You can recover your medical bills, you can recover lost wages if you miss work because you were laid up.

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Bluebook (online)
222 S.W.3d 840, 2007 Tex. App. LEXIS 2881, 2007 WL 1119931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-sava-inc-texapp-2007.