Affirmed and Memorandum Opinion filed November 1, 2018.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-17-00383-CV

BECKY GILES, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF
                 GABRIELLA GILES, Appellant
                                       V.

 BFI WASTE SERVICES OF TEXAS, LP, AND MARQUE C. JOHNSON,
                         Appellees

                   On Appeal from the 10th District Court
                         Galveston County, Texas
                    Trial Court Cause No. 15-CV-0536

                 MEMORANDUM OPINION


      The underlying suit in this case was brought by appellant Becky Giles,
Individually and on Behalf of the Estate of Gabriella Giles (Becky’s daughter)
against BFI Waste Services of Texas, LP, and Marque C. Johnson (collectively
“appellees”) for negligence. The suit arose from an accident that occurred on the
morning of November 14, 2014, as Christopher Blake Ragle was driving himself
and Gabriella to school. Christopher was speeding when he swerved, lost control of
his pick-up truck and went into the opposite lane of traffic. Johnson was driving a
BFI recycling truck in his own lane and proceeding toward Christopher’s pickup
truck. The pickup truck collided with the recycling truck. Christopher and Gabriella
were killed. The issue at trial was whether Johnson was partly at fault for failing to
avoid the collision. The jury failed to find Johnson was negligent and the trial court’s
judgment ordered appellant take nothing from appellees. From that judgment, this
appeal was timely brought.

       In a single issue, appellant claims the trial court erred by including an
instruction on new and independent cause in the jury charge because Johnson’s
actions were a concurring cause, not a superseding or new and independent cause,
of the collision. In her brief, appellant argues Johnson was negligent for failing to
obey the speed limit and “get the garbage truck out of the way.” For the reasons
stated below, we conclude the trial court’s error, if any, was harmless and affirm the
trial court’s judgment.1

                                   STANDARD OF REVIEW

       We must first determine the standard of review for charge error in a case such
as this one. Appellant acknowledges that error in the charge is reversible only if it
(1) probably caused the rendition of an improper judgment; or (2) probably
prevented her from properly presenting the case to this court. See Tex. R. App. P.
44.1(a). Appellant asserts the alleged charge error in this case satisfies the requisite
for reversible error in subsection (1). See Tex. R. App. P. 44.1(a)(1). Alternatively,
appellant argues that should we determine such a conclusion is too speculative, the


       1
         Accordingly, we do not address whether the new-and-independent-cause instruction was
properly given or if the proper standard of review in making that determination is de novo or abuse
of discretion.

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alleged charge error satisfied subsection (2). See Tex. R. App. 44.1(a)(2). In support
of this latter argument, appellant relies upon Crown Life Ins. Co. v. Casteel, 22
S.W.3d 378 (Tex. 2000). However, Casteel does not apply to an improper inferential
rebuttal instruction given in reference to the causation element of a plaintiff’s
negligence claim. Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 756-57 (Tex.
2006). Accordingly, we examine the entire record and apply traditional harmless
error analysis to determine whether the instruction “probably caused the rendition of
an improper judgment.” Id.; see also Thota v. Young, 366 S.W.3d 678 (Tex. 2012);
Dillard v. Texas Elec. Co-op., 157 S.W.3d 429 (Tex. 2005) (holding Casteel’s
presumption of harm does not apply); and Reinhart v. Young, 906 S.W.2d 471, 473
(Tex. 1995) (holding a harmless error analysis is applicable).

                                 APPLICABLE LAW

      “When defendants blame an occurrence on someone or something other than
themselves, the Texas Pattern Jury Charges provide multiple alternatives.” Dillard
v. Texas Elec. Co-op., 157 S.W.3d 429, 432 (Tex. 2005). In the appropriate case,
these instructions advise the jurors they are not required to place blame on a party to
the suit if the evidence shows that the conduct of some person not a party to the
litigation caused it. Id. at 432 (citing Reinhart, 906 S.W.2d at 472). One of these
alternatives is a sudden-emergency instruction which is applicable if the occurrence
is caused by something other than the defendant’s negligence and arises suddenly.
Id. at 432. The record reflects that in addition to the new-and-independent-cause
instruction, the court’s charge in this case included an instruction on sudden
emergency:

            If a person is confronted by an “emergency” arising suddenly and
      unexpectedly, which was not proximately caused by any negligence on
      his part and which, to a reasonable person, requires immediate action
      without time tor deliberation, his conduct in such an emergency is not

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       negligence or failure to use ordinary care if, after such emergency
       arises, he acts as a person of ordinary prudence would have acted under
       the same or similar circumstances.[ 2]
If evidence was adduced at trial to support the jury’s failure to find Johnson negligent
based upon a sudden emergency, any error in including a new-and-independent-
cause instruction would be harmless. See Reinhart, 906 S.W.2d at 473.

                       EVIDENCE OF JOHNSON’S NEGLIGENCE

       The record reflects the recycling truck had exited a 35-mph zone and passed
a speed limit sign for 45 mph when Johnson applied his brakes. Both the recycling
truck and Christopher’s pickup truck were in a 45-mph zone when the impact
occurred.

       Sergeant Robert Sanderson of the City of Galveston Police Department was
the lead investigating officer regarding this accident. Sanderson’s crash report stated
that Unit 1 (Christopher’s pickup truck) was traveling at an unsafe speed, lost
control, and crossed over the center turn lane into the westbound lane and was struck
by Unit 2 (the recycling truck). From the evidence at the scene, Sanderson concluded
that Christopher’s speed was 62 mph at a minimum and the pickup truck had skidded
sideways 240.3 feet.

       Trash bags were found on the road but Sanderson could not determine whether
or not they played a role in the accident. Because the wind was blowing hard, he did
not know if the trash bags blew into the road before or after the accident. Sanderson
testified there was no basis to believe those trash bags came from the recycling truck.
Sanderson agreed the trash bags could have been in the road and Christopher
swerved to avoid them.


       2
         There was no objection at trial, and there is no complaint on appeal, regarding the
inclusion of the sudden-emergency instruction.

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      Sanderson testified there was no evidence that Johnson was speeding at the
time of the accident. He also stated that Johnson was almost at a stop prior to the
collision. According to Sanderson, the recycling truck left a “very small” skid mark.
The recycling truck had almost cleared the road prior to impact. Sanderson testified
that it appeared Johnson tried to veer to the right to miss the collision.

      Sanderson opined that the accident occurred due to Christopher’s unsafe
speed when he lost control of the pickup truck and crossed into oncoming traffic
before striking the recycling truck. According to Sanderson, had Christopher been
driving the speed limit, he might not have lost control of the pickup truck. If the trash
bags were a factor, Christopher would have been able to better control the pickup
truck by driving the speed limit.

      The speed limit on the portion of the road where Christopher’s skid marks
started, and where the trash bags were found, was 45 mph. In Sanderson’s opinion,
Christopher was not operating his pickup truck using ordinary care in that he was
driving at a speed that was unsafe, dangerous and reckless. However, it was
Sanderson’s opinion that Johnson was operating the recycling truck safely and with
due regard for the current driving conditions. Sanderson did not believe Johnson was
speeding or ever lost control of the recycling truck and Johnson applied his brakes
prior to the collision. There were no long skid marks from the recycling truck but
Sanderson explained that in a commercial-motor vehicle with an air braking system
there is lag time. This lag occurs from when the brakes are applied to when they
actually engage. Sanderson estimated that Johnson had less than two seconds to
respond, possibly less than one second. It was Sanderson’s opinion that Christopher
was the cause of the accident and Johnson bore no responsibility for it. According
to Sanderson, Johnson did everything he could to avoid the collision by applying his
brakes and moving to the right.

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      April Yergin, an accident reconstructionist for ATA Associates, testified as
an expert witness for appellant. Yergin calculated Johnson’s speed to have been
between 38 mph and 48 mph at the time he applied his brakes. Yergin ruled out that
Johnson was driving 35 mph in the 35-mph zone because he would have stopped
before the point of impact if that were the case. Based upon the distance, the length
of time the brake lights were on, for 3.5 seconds, the recycling truck’s estimated
speed of 17.5 mph, and a probable brake application of .35, Yergin concluded
Johnson was driving a maximum of 45 mph at the time he applied his brakes.

      Yergin testified that Johnson “didn’t hit his brakes hard enough.” Yergin
calculated that Johnson traveled 164 feet after he applied his brakes until the point
of impact. Yergin testified that at her highest estimation of Johnson’s speed, if he
had applied his brakes “100 percent” the recycling truck would have come to a
complete stop before the area of impact.

      Yergin found Christopher’s pickup truck was traveling at a minimum of 62
mph and his speed could have been as high was 75 mph. Yergin calculated that
Christopher’s pickup truck skidded 231.9 feet. Yergin agreed that Christopher was
speeding, lost control of his pickup truck, and collided with the recycling truck
entirely in Johnson’s lane of travel. Yergin testified the movement of Christopher’s
pickup truck to the right happened “very, very quickly,” in less than a second, “and
then he immediately shoots over across into [Johhnson’s] lane.” Yergin estimated
that Christopher’s pickup truck was in Johnson’s lane for no more than a second and
a half before the collision. Yergin agreed that once Christopher’s pickup truck
entered Johnson’s lane, the collision was unavoidable no matter how hard Johnson
applied the brakes on the recycling truck.

      According to Johnson, it was still dark and was cold and windy the day of the
accident. Johnson was driving down Stewart Road in Galveston when he saw

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approaching headlights. “[I]n a matter of seconds, the truck swerved and did a little
swerve and then it just started fishtailing sideways.” It appeared to Johnson the
pickup truck sped up after the driver lost control. Johnson hit his brakes and moved
to the right to try and avoid an accident. Johnson applied his brakes when he saw the
pickup truck coming into his lane. According to Johnson, he did not have time to
react. Johnson testified he was almost at a complete stop when the accident occurred.
Looking back, Johnson could not identify anything that he could have done
differently to avoid the accident. Johnson testified that he was not speeding but was
unaware the speed zone increased from 35 mph to 45 mph just before the location
where the accident occurred.

      Johnson’s interview with Sergeant Kylen was admitted into evidence.
Johnson stated:

          “I guess he must have blacked out and pressed the gas and came
           all the way across and I couldn’t avoid him.”
          “I guess he blacked out or whatever, mashed the gas and started
           coming faster. And I, I couldn’t avoid him and I just braced for
           the impact and I t-boned him on the right side.”
Sergeant Kylen stated, in the interview, “If you had been 30 seconds later he would
have spunned [sic] in front of you, if you would have been 30 seconds faster he
would have spunned [sic] behind you.”

                                     ANALYSIS

      We have reviewed the entire record and conclude there was ample evidence
introduced at trial to support the jury’s failure to find Johnson was negligent. See
Reinhart, 906 S.W.2d at 473. The only evidence to the contrary was Yergin’s
opinion that Johnson could have braked “harder” and thereby avoided the accident.
However, the jury rejected this theory of Johnson’s negligence. We cannot attribute
their decision to the new-and-independent-cause instruction when the charge
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included a sudden-emergency instruction that was supported by the testimony of
Johnson and Yergin. See id. at 474.

      There is nothing in the record to suggest the jury, in any way, based its verdict
on the new-and-independent-cause instruction. See id. Accordingly, a rational trier
of fact could have concluded that appellant failed to prove Johnson was negligent
and answered the negligence question negatively without regard to the new-and-
independent-cause instruction. Id. at 473–74 (holding submission of an unavoidable
accident instruction was not reversible error when the defendant introduced ample
evidence to support the jury’s failure to find negligence).

      In light of the entire record and the instruction regarding sudden emergency,
we conclude the trial court’s submission of the new-and-independent-cause
instruction, if erroneous, was harmless. Appellant’s issue is overruled and the
judgment of the trial court is affirmed.




                                           /s/       John Donovan
                                                     Justice


Panel consist of Justices Boyce, Donovan and Wise.




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