                                    DISSENTING OPINION
                                        No. 04-11-00459-CV

                                VIA METROPOLITAN TRANSIT,
                                         Appellant

                                                 v.

                                     Gerald Anthony GARCIA,
                                             Appellee

                     From the 438th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2006-CI-12350
                        Honorable Victor Hugo Negron Jr., Judge Presiding

Opinion by: Rebecca Simmons, Justice
Dissenting Opinion by: Marialyn Barnard, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 5, 2012

           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
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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,



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Dissenting Opinion                                                                 04-11-00459-CV


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



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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



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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



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Dissenting Opinion                                                                    04-11-00459-CV


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




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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.




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        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

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Dissenting Opinion                                                                  04-11-00459-CV


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.



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Dissenting Opinion                                                                     04-11-00459-CV


        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



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Dissenting Opinion                                                                  04-11-00459-CV


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).




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Dissenting Opinion                                                                       04-11-00459-CV


          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.


                                                     Marialyn Barnard, Justice




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