Reversed and Remanded and Majority and Dissenting Opinions filed April 2,
2020.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00900-CV

                     LISSA WHYTE DOUGLAS, Appellant

                                         V.

                 MARIA DEL CARMEN AGUILAR, Appellee

                    On Appeal from the 125th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2016-36005

                             MAJORITY OPINION

      Appellant Lissa Whyte Douglas appeals the judgment in this automobile
accident case. In a single issue on appeal Douglas contends the trial court erred when
it granted appellee Maria Del Carmen Aguilar’s motion for directed verdict on the
issue of negligence. Concluding the trial court erred in granting the motion for
directed verdict we reverse the judgment of the trial court and remand the case for
proceedings consistent with this opinion.
                    FACTUAL AND PROCEDURAL BACKGROUND

      Douglas, a child therapist, was traveling to a client’s house and was driving
on the highway when she tried to change from the left lane to the right lane. Douglas
started to change lanes, checked her rearview mirror and both side mirrors, activated
her turn signal, and began to move lanes. Douglas did not see another vehicle when
she checked her mirrors. When Douglas started to move lanes, she hit the car next
to her, which was driven by Aguilar.

      Both cars pulled over and the drivers got out of their cars and exchanged
information. Douglas apologized to Aguilar and offered to pay for the damage to
Aguilar’s car. Aguilar said she did not want to call law enforcement and agreed to
get an estimate from a mechanic recommended by Douglas. The accident occurred
on a Friday.

      On Wednesday following the Friday accident Douglas phoned Aguilar to
check on her well-being and ask if Aguilar had gotten an estimate from the mechanic.
Aguilar told Douglas she was fine and did not report any injuries but had not yet
contacted the mechanic.

      Aguilar testified that she was driving on the freeway on the day of the accident
and felt a hard impact on the left side of her car. The person who hit her eventually
pulled over and Aguilar spoke with her. Aguilar testified that Douglas admitted she
was at fault in the accident. Aguilar went home after the accident even though she
felt pain. Aguilar testified that she did not fully understand Douglas’s phone calls
and felt pressured due to the misunderstanding. As a result of the accident Aguilar
felt pain in her head, neck, and shoulder.

      Three days later when the pain did not dissipate Aguilar went to Dr. Paul
Marullo. The therapy that Marullo prescribed temporarily relieved the pain. When


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Aguilar was discharged from therapy, she felt better but was not pain free.

      Dr. Marullo, a chiropractor, testified that Aguilar came to him complaining of
neck pain, headaches, and pain radiating to the trapezius muscles on her left side.
After examination and testing Marullo diagnosed Aguilar with cervical radiculitis,
which he described as radiating pain and muscle spasms. Marullo recommended
physical therapy, specifically stretches and exercises to rehabilitate the soft-tissue
damage. Upon discharge Aguilar’s prognosis was good and Marullo expected her to
recover. Marullo testified that he believed the auto accident was the cause of
Aguilar’s injuries.

      After both sides rested, Aguilar argued that Douglas had taken responsibility
for the accident and requested a directed verdict on the issue of negligence. The trial
court granted Aguilar’s motion and had the charge prepared with a “yes” answer
filled into the question of whether Douglas’s negligence was the proximate cause of
the accident. In a single issue, Douglas challenges the trial court’s grant of a directed
verdict in Aguilar’s favor.

                                       ANALYSIS

The trial court erred in granting Aguilar’s directed verdict.

      A.     Standard of review and applicable law

      A directed verdict is warranted when the evidence is such that no other verdict
can be rendered and the moving party is entitled, as a matter of law, to judgment.
Tanglewood Homes Ass’n v. Feldman, 436 S.W.3d 48, 66 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied). When reviewing a directed verdict, an appellate court
views the evidence in the light most favorable to the party against whom the verdict
was rendered. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994)
(per curiam). When reviewing a directed verdict on a legal issue, we consider all the

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evidence presented at trial, viewing it in the losing party’s favor as much as the
record allows. S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996); Eurecat US, Inc. v.
Marklund, 527 S.W.3d 367, 387 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

      To prevail on her negligence cause of action against Douglas, Aguilar had to
establish the existence of a duty, a breach of that duty, and damages proximately
caused by the breach. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). To
establish breach of duty, the plaintiff must show either that the defendant did
something an ordinarily prudent person exercising ordinary care would not have
done under the particular circumstances or that the defendant failed to do something
that an ordinarily prudent person would have done in the exercise of ordinary care.
Mata v. Coastal Agric. Supply, Inc., No. 01-17-00509-CV, 2018 WL 3150869, at *2
(Tex. App.—Houston [1st Dist.] June 28, 2018, no pet.) (mem. op.).

      The occurrence of an accident or a collision is not of itself evidence of
negligence. Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.—
Houston [14th Dist.] 1989, writ denied). Under Texas law, all persons have the duty
to maintain a proper lookout and to observe in a careful manner the traffic and
general situation at and in the vicinity of an intersection. Gomez v. Adame, 940
S.W.2d 249, 251 (Tex. App.—San Antonio 1997, no writ); see also Lynch v.
Ricketts, 314 S.W.2d 273, 275 (Tex. 1958). A driver’s failure to yield the right-of-
way does not give rise to negligence as a matter of law. Mata, 2018 WL 3150869,
at *6. Instead, a party must prove “specific acts” of negligence, which “is generally
a question of fact for the jury to determine.” Gomez, 940 S.W.2d at 252; Dedear v.
James, 184 S.W.2d 319, 321 (Tex. Civ. App.—Austin 1944, writ ref’d w.o.m.).
Indeed, “when evidence shows that the driver exercised some care, ‘it becomes an
issue of fact as to whether the driver’s conduct was negligent.’” Mata, 2018 WL
3150869, at *6 (quoting County of Dallas v. Poston, 104 S.W.3d 719, 723 (Tex.

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App.—Dallas 2003, no pet.)); see also Waring v. Wommack, 945 S.W.2d 889, 894
(Tex. App.—Austin 1997, no writ).

     B.    Douglas did not admit negligence as a matter of law.

     At trial, Douglas testified as follows:

     Q. Ms. Douglas, you would agree with me that as a driver on the road,
     you owe a duty to drive safe?
     A. Absolutely.
     Q. And that as a part of that duty, it entails making sure that you check
     your surroundings before checking – changing lanes?
     A. And in this case I did that, sir.
     Q. You indicated you did that, ma’am? Is it your testimony today is that
     you checked your surroundings?
     A. Yes, I did.
                                        *****
     Q. So Ms. – Ms. Douglas, to clarify something, you are not claiming
     Ms. Aguilar is at fault, are you?
     A. I thought that my attorney made that clear that I am not disputing
     my responsibility in the accident at all. It was my responsibility. I had
     an accident. I made a mistake.
     Q. So you take responsibility for what happened?
     A. Absolutely.
                                        *****
     Q. Ms. Douglas, just to clarify something about the accident. Maybe I
     am confused but you stated that you checked to your sides and your
     mirrors before changing lanes?
     A. Yes.
     Q. But you still hit the car to your right?
     A. Yes.
     Q. So would that mean that you then didn’t properly check your – to
     your right?

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      A. I don’t think it necessarily meant that because I did check properly
      to my right. I think that she suddenly just appeared there.
      Q. You are not claiming that – that’s some sort of act of God, are you?
      A. I am not claiming that I am not responsible for the accident.

      In the context of this 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). While it is undisputed that Douglas hit
Aguilar as she changed lanes, a driver’s failure to yield the right-of-way does not
give rise to negligence as a matter of law. Canales v. Womack, No. 01-07-00222-
CV, 2008 WL 2388132, at *2 (Tex. App.—Houston [1st Dist.] June 12, 2008, no
pet.) (mem. op.). Instead, where there is evidence that the driver exercised some care,
the jury determines whether a reasonably prudent driver would have acted in the
same way. Id.

      Here, Douglas testified that she checked her surroundings and looked in her
mirrors before she changed lanes but did not see Aguilar’s car before she moved
over. There is some evidence that Douglas did what a person of ordinary prudence
would have done under the same or similar circumstances. The jury could have
reasonably believed that despite Douglas’s acceptance of responsibility she drove in
a reasonable manner and did not act negligently. The jury could have also reasonably
believed that Douglas did not drive responsibly and was negligent in failing to yield
the right-of-way. This question was one for the jury and was not established as a
matter of law. See Mata, 2018 WL 3150869, at *6; Canales, 2008 WL 2388132, at
*2.

      Aguilar argues that the trial court properly granted a directed verdict because
(1) there was no probative evidence that Douglas exercised a degree of care and (2)
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Douglas did not contest liability at trial. First, the testimony cited above is some
evidence that Douglas exercised a degree of care. Douglas testified that she checked
her surroundings before she attempted to change lanes.

       Second, with regard to contesting liability, Douglas filed a general denial to
Aguilar’s petition. Douglas, therefore, contested liability by filing a general denial.
See Tex. R. Civ. P. 92. Appellee argues that Douglas did not assert an affirmative
defense or claim that Aguilar was at fault for the accident. Douglas was not required
to assert an affirmative defense of contributory negligence to deny that she was
negligent. See Davis v. Manning, 847 S.W.2d 446, 449 (Tex. App.—Houston [14th
Dist.] 1993, no writ) (“there is no such affirmative defense as ‘lack of negligence.’”).
If a party files a general denial in the trial court, that pleading puts a plaintiff to his
or her proof on all issues, including liability. Estrada v. Dillon, 44 S.W.3d 558, 562
(Tex. 2001).

       The evidence in this case was not such that no other verdict on negligence
could be rendered. Aguilar was not entitled, as a matter of law, to a finding of
negligence. The trial court, therefore, erred in removing the decision on negligence
from the jury and directing a verdict in favor of Aguilar. We sustain Douglas’s sole
issue on appeal.

                                      CONCLUSION

       The trial evidence did not prove as a matter of law that Douglas’s negligence
proximately caused the accident. The trial court reversibly erred in granting
Aguilar’s motion for directed verdict. We sustain Douglas’s sole issue on appeal,
reverse the trial court’s judgment, and remand the case to the trial court for further
proceedings. See Tex. R. App. P. 43.2(d).




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                                      /s/       Jerry Zimmerer
                                                Justice



Panel consists of Justices Zimmerer, Spain, and Hassan (Hassan, J. dissenting).




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