                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS
                                               '
 ARMANDO LOERA, INDIVIDUALLY
 AND AS REPRESENTATIVE OF THE                  '
 ESTATE OF JOSEFINA LOERA,                                    No. 08-11-00182-CV
 JOINED BY MORAYMA LOERA,                      '
                                                                  Appeal from
                         Appellants,           '
                                                              394th District Court
 v.                                            '
                                                            of Presidio County, Texas
 JOE FUENTES AND NABORS WELL                   '
 SERVICES LTD.,                                                   (TC # 6968)
                                               '
                         Appellees.
                                               '


                                        OPINION

       This is personal injury case arising out of injuries sustained in a collision between the

Loeras’ pickup truck and a tractor-trailer driven by Joe Fuentes and owned by Nabors Well

Services, Ltd. After hearing all the evidence, including testimony from two experts regarding

the Loeras’ failure to wear seat belts, the jury found Fuentes to be 50% negligent in causing or

contributing to cause the “occurrence or injury,” Nabors 10% negligent, and Morayma Loera, the

driver, 40% negligent. The jury also found that Morayma and her parents were engaged in a

joint business enterprise at the time of the accident, imputing Morayma’s negligence to Josefina

and Armando. The jury was also asked two questions regarding the Loeras’ failure to wear seat

belts and answered as follows:

       Question No. 4:

             Was the non-use of a seat belt by any of the persons named below
       [Morayma, Josefina, Armando] negligent and a proximate cause of the injuries, if
       any?

       Answer ‘Yes’ or ‘No’:
       a)     Morayma Loera: Yes

       b)     Josefina Loera: Yes

       c)     Armando Loera: Yes.


       Question No. 5:

              If you answered ‘Yes’ to Question 4 for any of those named below, then
       answer the following question. Otherwise, do not answer the following question.

                Assign percentages of responsibility only to those you found caused or
       contributed to cause the injury due to non-use of a seat belt. The percentages you
       find, if any, are separate percentages for each individual below. The percentage
       of responsibility attributable to any one person named below [Morayma, Josefina,
       Armando] is not necessarily measured by the number of acts or omissions found.

               For each person you found negligently caused or contributed to cause the
       injury due to non-use of a seatbelt, find the percentage of responsibility, if any,
       attributable to each for such non-use:

       a)     Morayma Loera: 100%

       b)     Josefina Loera: 100%

       c)     Armando Loera: 100%


       The jury found that the Loeras suffered approximately $450,000 in damages as a result of

the collision. But based upon the answers to Questions 4 and 5, the trial court entered judgment

in favor of the defendants and ordered Appellants take nothing. Because we conclude that

evidence of non-use of seat belts was erroneously admitted, we reverse and remand.




                                              -2-
                                        FACTUAL BACKGROUND

          On a clear sunny day in October 2006, Morayma Loera was driving a pickup truck

westbound on Highway 67 toward Marfa. Her mother was in the front passenger seat and her

father was in the rear passenger seat. The family was headed from Austin back home to

Presidio, Texas.

          Near the intersection of Highway 67 and a small county road, Morayma came upon two

tractor trailer rigs owned by Nabors. The lead truck was driven by Fuentes. It was undisputed

that both rigs had slowed down significantly and moved to the right in preparation for the

upcoming left hand turn. However, the parties disagreed as to whether Fuentes had pulled over

as far as he could within the lane or if he had moved outside of the lane and pulled on to the

paved shoulder. Each side presented their own accident reconstruction expert. The two experts

relied on substantially the same data and reached many of the same conclusions. Regardless of

the specific location of the tractor trailers on the roadway, Morayma attempted to pass both

trucks. Instead, as she was passing the rear truck, the lead rig turned left, directly blocking her

path across the highway. Morayma hit her brakes and swerved left in an attempt to avoid hitting

the tractor trailer but she was unsuccessful. The pickup truck and the tractor trailer collided. At

the time of the accident, Morayma was traveling approximately 70 miles per hour and the tractor

trailer was traveling somewhere between 5 and 8 miles per hour. 1 All three of the Loeras

suffered injuries from the collision.

          Josefina and Armando filed suit against Fuentes and Nabors alleging various claims of

negligence and vicarious liability. Morayma asserted claims against her parents, but those

claims were settled during the course of litigation. Morayma also filed suit against Fuentes for

negligence and against Nabors under the theory of respondent superior.
1
    The speed limit was 75 miles per hour.

                                               -3-
         The Loeras bring four issues for review. Issue One addresses charge error. Issue Two

challenges the sufficiency of the evidence to support the jury’s finding that the Loeras were

engaged in a joint enterprise. Issue Four complains that the trial court erred in admitting expert

testimony pursuant to Texas Rule of Evidence 702. We need not address these issues as Issue

Three is dispositive. We hold that the trial court erred in allowing testimony regarding the non-

use of seat belts.

                                         NON-USE OF SEATBELTS

                                               Standard of Review

         A trial court’s decision to admit or exclude evidence is generally reviewed for an abuse

of discretion. All Metals Fabricating, Inc. v. Ramer Concrete, Inc., 338 S.W.3d 557, 561

(Tex.App.--El Paso 2009, no pet.). Even if error occurs, the case will not be reversed unless the

error probably caused the rendition of an improper judgment. See TEX.R.APP.P. 44.1; Owens-

Corning Fiberglass Corporation v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

         The standard of review for a pure legal question is de novo, and a reviewing court must

determine if the trial court acted without reference to any guiding rules or principles. Worford v.

Stamper, 801 S.W.2d 108, 109 (Tex. 1990). When conducting a de novo review, an appellate

court exercises its own judgment and redetermines each issue of fact and law. Quick v. City of

Austin, 7 S.W.3d 109 (Tex. 1998). In so doing, we accord no deference to the trial court. See

State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996).

                                      The “Seat Belt Defense” in Texas

         Prior to repeal in 2003, Texas Transportation Code Sections 545.413(g) and 545.412(d)

provided a statutory bar to the admissibility of evidence regarding seat belt non-usage.2


2
  Specifically, Section 545.413(g) read, “[u]se or nonuse of a safety belt is not admissible in a civil trial . . .” and
Section 545.412(d) stated that, “[u]se or nonuse of a child passenger safety system is not admissible evidence in a

                                                         -4-
However, long before these provisions (and their predecessors) were enacted, it was well

established in Texas jurisprudence that such evidence did not constitute contributory negligence,

nor was it properly considered as a means to mitigate damages. See Carnation Co. v. Wong, 516

S.W.2d 116, 117 (Tex. 1974); Kerby v. Abilene Christian College, 503 S.W.2d 526, 528 (Tex.

1974); Pool v. Ford Motor Co., 715 S.W.2d 629, 633 (Tex. 1986); see also

Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 134 (Tex. 1994)(“[T]he legislature

could have overruled our decision in Kerby and Carnation and established a basis for

a negligence per se defense whenever a plaintiff failed to wear a seat belt.                     Instead, the

legislature . . . ratif[ied] Carnation’s holding.”).

        The first case in Texas to address the issue of a seat belt defense held there was

insufficient evidence to show that the decedents, whose deaths resulted from a motor vehicle

collision, would have lived had they worn their seat belts. Tom Brown Drilling Co. v. Nieman,

418 S.W.2d 337, 341 (Tex.Civ.App.--Eastland 1967, writ ref’d n.r.e). The court noted that there

was neither a mandatory seat belt usage statute in Texas nor authority to determine whether a

plaintiff had a duty to wear a seat belt. The court discussed the split in other jurisdictions with

respect to recognizing the so called “seat belt defense” but it did not directly address whether the

plaintiff had a responsibility to use an available seat belt. One year later, an intermediate court

again refused to decide whether the plaintiff had a duty to wear a seat belt. Sonnier v. Ramsey,

424 S.W.2d 684 (Tex.Civ.App.--Houston [1st Dist.] 1968, writ ref’d n.r.e). But the opinion

appeared to suggest the possibility of considering the seat belt defense in subsequent cases. The

court noted that should such a scenario occur, the seat belt defense should be used when



civil trial . . . .” Acts 1995, 74th Leg. R.S., ch. 165, § 1, 1995 TEX.GEN.LAWS 1644, amended by Acts 1997, 75th
Leg., R.S. ch. 165, § 30.115(a), 1997 TEX.GEN.LAWS 643 (former TEX.TRANSP.CODE § 545.413(g)). Acts
1995, 74th Leg., R.S., ch. 165, § 1, 1995 TEX.GEN.LAWS 1643, amended by Acts 1997, 75th Leg., R.S., ch. 165,
§ 30.114(a), 1997 TEX.GEN.LAWS 643 (former TEX.TRANSP.CODE § 545.412(a)).

                                                     -5-
addressing damages, rather than when determining liability. The question was finally answered

in Quinius v. Estrada, 448 S.W.2d 552, 554 (Tex.Civ.App.--Austin 1969, writ ref’d n.r.e.). The

answer was no. See id. (determining that the plaintiff had no duty to fasten the seat belt and

therefore failure to fasten was not negligent).

       Several years after Quinius, the Texas Supreme Court decided Kerby. This case involved

a car collision between a van driven by Kerby and a school bus driven by an employee of the

college. After running a red light, the employee drove the bus into Kerby’s van. The door to

Kerby’s van was open and, as a result, Kerby was ejected and crushed. The Supreme Court

compared driving with a door open to driving without a seat belt. Both, the court noted, were not

actionable negligence, but instead were “negligence contributing to the damages sustained.” The

Kerby court explained the reasoning with respect to the limited value of evidence that a claimant

was unbelted:

       We draw a sharp distinction between negligence contributing to the accident and
       negligence contributing to the damages sustained. Contributory negligence must
       have the causal connection with the accident that but for the conduct the accident
       would not have happened. Negligence that merely increases or adds to the extent
       of the loss or injury occasioned by another’s negligence is not such contributory
       negligence as will defeat recovery. The conduct of driving . . . without use of
       available seat belts has been held not to be contributory negligence.

Kerby, 503 S.W.2d at 528.        The decision was important because it distinguished between

negligence that contributes to the accident and negligence that worsens the injuries sustained.

While the court did not specifically say that evidence of non-use was irrelevant, it criticized the

suitability of the evidence. Further, the court’s distinction between the two types of negligence

pointed out the inadequacies of a negligence theory in addressing the seat belt defense.

       Shortly after Kerby was decided, the Texas Supreme Court, in a per curiam opinion,

denied a petition for writ of error in King Son Wong v. Carnation Co. The Wongs sued



                                                  -6-
Carnation after sustaining injuries when their automobile was negligently struck by a truck

owned by Carnation. The trial court admitted seat belt evidence and found that the plaintiffs’

failure to buckle their seat belts constituted negligence and was a proximate cause of the injuries

they sustained. The appellate court reversed, holding that under Kerby, there was no duty to

wear a seat belt in order to mitigate damages. 509 S.W.2d 385, 387 (Tex.Civ.App.--Houston

[14th Dist.] 1974). The Texas Supreme Court refused the application for writ of error, rejecting

all cases from other jurisdictions that allowed the seat belt defense to completely bar a plaintiff’s

recovery through contributory negligence. 516 S.W.2d at 116. The court then dismissed the

mitigation of damages approach, stating that “there was no evidence to prove that had plaintiff

been wearing seat belts [sic], the injuries suffered would have been less than those actually

sustained.” Id. at 117. The Supreme Court determined that the Court of Civil Appeals’ decision

was correct because “persons whose negligence did not contribute to an automobile accident

should not have the damages awarded to them reduced or mitigated because of their failure to

wear available seat belts.”

         In 1985, the Texas Legislature enacted the mandatory seat belt statute. See former

TEX.REV.CIV.STAT. art. 6701d, § 107C(j). In addition to making non-use of a seat belt an

offense, Section 107C(j) provided that “[u]se or nonuse of a safety belt is not admissible

evidence in a civil trial.”3 In other words, the Legislature codified the holding in Carnation. As


3
     Almost ten years later, in 1994, the Texas Supreme Court limited the statute’s application. See
Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132 (Tex. 1994). The plaintiff, Glyn-Jones, in addition to
suing the driver of a car that collided with hers, sued Bridgestone/Firestone, Inc., Ford Motor Company, and
Champion Motor Sales. The plaintiff alleged products liability and breach of warranty claims, claiming that the seat
belt was defective and failed to protect her, which resulted in her being thrown around inside her vehicle, thereby
causing further injury. Bridgestone/Firestone argued that Glyn-Jones was barred by Section 107C(j) from admitting
evidence that she was wearing a seat belt and therefore she was unable to prove the element of causation. The court
refused to interpret Section 107C(j) as precluding the plaintiff from admitting evidence that proved she had used her
seat belt. Essentially, the court held that the purpose of the statute was “to make clear that the sole legal sanction for
the failure to wear a seat belt is the criminal penalty provided by the statute and that the failure could not be used
against the injured person in a civil trial.” In other words, the statute did not bar a plaintiff from introducing

                                                          -7-
a result, there was no possibility for a tort litigant to raise a seat belt defense in Texas because for

nearly two decades the statute continued to prevent admission of seat belt nonuse evidence when

it was being offered in an attempt to reduce a defendant’s liability. Section 107C(j) was later

replaced with Sections 545.412(d) and 545.413(g) of the Texas Transportation Code.

Accordingly, notwithstanding the repeal of Sections 545.412(d) and 545.413(g), evidence of

non-use is inadmissible because it is an act which precedes the crash-causing negligence and the

duty to mitigate damages rises only after those acts which led to the crash.

                                  THE 2003 REPEAL OF STATUTORY BARS

         In 2003, as part of House Bill 4, the Legislature repealed Texas Transportation Code

Sections 545.412(d) and 545.413(g) without substituting any language whatsoever. Surprisingly

few opinions have addressed the seat-belt defense in light of the legislative amendments.

However, there are a handful of cases which we find relevant to our analysis.

         In Idar v. Cooper Tire and Rubber Co., No. C-10-217, 2011 WL 2412613 (S.D. Tex.

June 6, 2011), the defendant sought to reduce the plaintiff’s damages based on non-use of seat

restraints. Id. at *8. The court noted that, “[e]vidence of seatbelt nonusage is no longer

inadmissible under statute.”          Id. at *9 (recognizing the repeal of Sections 545.413(g) and

545.412(d) of the Texas Transportation Code). “On the other hand, the repeal of these sections

does not indicate that such evidence is now per se admissible.” Id. at *9, citing Trenado, No.

4:08-CV-00249, Doc. No. 194 at 33, 36. First, the court considered whether the claims for

damages should be barred, in whole or in part, under the doctrine of comparative responsibility

for the failure to utilize seat belts. Id. at *10-11. It recited the Texas comparative responsibility

statute which provides that “the Court shall reduce the amount of damages to be recovered by the

claimant with respect to a cause of action by a percentage equal to the claimant’s percentage of

evidence of seat belt use when the claim revolved around the issue of a seat belt defect.

                                                         -8-
responsibility.”   Id. at 10, citing TEX.CIV.PRAC.&REM.CODE § 33.012(a).              The court

continued:

       The Texas Supreme Court has held in cases prior to repeal of the Code’s
       provisions that ‘persons whose negligence did not contribute to an automobile
       accident should not have the damages awarded to them reduced or mitigated
       because of their failure to wear available seatbelts.’

Id., citing Carnation, 516 S.W.2d at 117; and Bridgestone/Firestone, Inc., 878 S.W.2d at 134. It

then concluded that the alleged failure to wear a seatbelt, “did not contribute to the automobile

accident, and, under current Texas law, they should not have their damages reduced or mitigated

because of this failure.” Id. at 11, citing Carnation Co., 516 S.W.2d at 117; Ramirez v. Michelin

N. Am., Inc., No. 5:07-CV-01032-OLG, Doc. No. 199 (W.D. Tex. Feb. 18, 2010)(“The current

state of the law in Texas is that evidence of a plaintiff’s negligence antedating the defendant’s

wrongful conduct is not admissible to reduce or mitigate the plaintiff’s damages.”); Pool v. Ford

Motor Co., 715 S.W.2d 629, 633 (Tex. 1986)(failure to wear available seat belts); Kerby v.

Abilene Christian College, 503 S.W.2d 526, 528 (Tex. 1973)(driving with an open delivery van

door); Haney Elec. Co. v. Hurst, 624 S.W.2d 602, 611 (Tex.Civ.App.--Dallas 1981, writ

dism’d)(driving with a can of gasoline in the rear of a station wagon); Block v. Mora, No. 07-08-

0092-CV, 2009 WL 35421 *7 (Tex.App.--Amarillo Jan. 7, 2009, pet. dism’d)(driving with an

unsecured tire in the bed of a pickup truck); and Goldberg v. Dicks, No. 12-02-00053-CV, 2004

WL 253250, at *15-16 (Tex.App.--Tyler February 11, 2004, pet. denied)(riding in an open

pickup truck bed).

       Secondly, the court considered whether non-usage could mitigate damages, finding that

mitigation “does not apply in these circumstances.” Id. at 11. “The mitigation of damages

doctrine requires an injured party to exercise reasonable care to minimize its damages if damages

can be avoided with only slight expense and reasonable effort.” Id., citing Cotton v. Weatherford

                                              -9-
Bancshares, Inc., 187 S.W.3d 687, 708 (Tex.App.--Fort Worth 2006, pet. denied.). Because the

plaintiff’s non-use of a restraint system was “subsequent negligence” it did not warrant a

deduction in recovery based on a failure to mitigate.

                                 WAS EXCLUSION ERROR?

       We now turn to the first prong of our inquiry -- did the trial court abuse its discretion by

excluding evidence regarding the non-usage of seat belts? For more than thirty years, Texas law

has recognized that the use (or non-use) of a seat-belt does not make a collision more or less

likely and therefore does not constitute contributory negligence. Likewise, the non-use of a seat

belt cannot constitute a failure to mitigate damages because the claimant cannot reduce its

damages before they occur, and the act of using or not using the seat belt does not intervene

between the defendant’s negligence and the claimant’s damages.

       In repealing Sections 545.412 and 545.413, the Legislature had the opportunity to

mandate admissibility, but it chose to remain silent on the issue.          Therefore, legislative

amendments had no bearing on the continuing effect of Carnation, Kerby, Glyn-Jones, and their

progeny. As an intermediate appellate court, it is not within our province to overturn prior

Supreme Court authority. “It is not the function of a court of appeals to abrogate or modify

established precedent. That function lies solely with [the Supreme] Court.” Lubbock County,

Texas v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002), see also Petco

Animal supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex.App.--Austin 2004, no pet.)(“As an

intermediate appellate court, we are not free to mold Texas law as we see fit but must instead

follow the precedents of the Texas Supreme Court unless and until the high court overrules them

or the Texas Legislature supersedes them by statute.”).




                                              - 10 -
        Appellees direct us to comments by State Representative Joe Nixon concerning the

amendment:

        HB 4 now allows the jury to know whether or not a Plaintiff who is suing because
        of the injuries sustained in an automobile accident was wearing a seat belt at the
        time of the accident. Unbelievably, prior to 2003, Texas law prohibited
        admission of evidence that the Plaintiff was partially at fault for their own
        damages for failure to wear their seat belt, despite the fact that state law required
        every passenger to wear a seat belt. Now, common sense prevails, and the jury is
        given additional legitimate and relevant information on which to base its verdict.

See Joseph M. Nixon, The Purpose, History and Five Year Effect of Recent Lawsuit Reform in

Texas, TEXAS STATE BAR LITIGATION SECTION REPORT, THE ADVOCATE 9, 17

(Fall 2008).. This is merely one legislator’s opinion and is not evidence of legislative intent.

“Explanations produced, after the fact, by individual legislators are not statutory history, and can

provide little guidance as to what the legislature collectively intended.” Entergy Gulf States, Inc.

v. Summers, 282 S.W. 3d 433, 444 (Tex. 2009), quoting In Re Doe, 19 S.W.3d 346, 352 (Tex.

2000). It is not proper for the courts to read into the statute something that was not spelled out

clearly by the Legislature. See Smith v. State, 5 S.W.3d 673, 678 (Tex. Crim. App. 1999), citing

Coit v. State, 808 S.W.2d 473, 475 (Tex.Crim.App. 1991). Absent a specific legislative mandate

affirmatively authorizing the admission of such evidence, or legislative history specifically

advising the courts of appeals in Texas that long established court precedent is being overruled,

the courts should not guess at the Legislature’s intent. See Smith v. State, 5 S.W.3d 673, 678

(Tex. Crim. App. 1999). We conclude the trial court erred in admitting evidence of non-use of

seat belts.

                                          Harm Analysis

        Having found error, we must now conduct a harm analysis to determine whether the error

resulted in the rendition of an improper judgment. Even when an evidentiary ruling is erroneous,



                                               - 11 -
we will not reverse unless the ruling probably caused rendition of an improper judgment.

TEX.R.APP.P. 44.1(a); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). The

Supreme Court has recognized the impossibility of prescribing a specific test to determine

whether a particular error is harmful, and entrusts that determination to the sound discretion of

the reviewing court.    McCraw v. Maris, 828 S.W.2d 756, 757-58 (Tex. 1992); Lorusso v.

Members Mut. Ins. Co., 603 S.W.2d 818, 821 (Tex. 1980). “A reviewing court must evaluate the

whole case from voir dire to closing argument, considering the ‘state of the evidence, the

strength and weakness of the case, and the verdict.” Reliance Steel & Aluminum Co. v. Sevcik,

267 S.W.3d 867, 871 (Tex. 2008), quoting Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 841

(Tex. 1979). “[I]t is not necessary for the complaining party to prove that ‘but for’ the exclusion

of evidence, a different judgment would necessarily have resulted.” McCraw, 828 S.W.2d at

758. The complaining party must only show “that the exclusion of evidence probably resulted in

the rendition of an improper judgment.” Id. The erroneous admission of evidence is likely

harmless if the evidence was cumulative, or the rest of the evidence was so one-sided that the

error likely made no difference in the judgment. Reliance Steel, 267 S.W.3d at 873. However, if

erroneously admitted evidence was crucial to a key issue, the error is likely harmful. Id.

       Here, not only did the jury hear extensive evidence regarding the Loeras’ non-use of seat

belts, the jury charge included questions specifically related to the usage of seat belts. Despite

the 40% and 60% proportional responsibility found in questions 2 and 3, the trial court rendered

judgment in favor of defendants and ordered that the Loeras take nothing based on the jury’s

finding that they were entirely responsible for not using the belt restraints. While we cannot

know exactly how the jury’s verdict would have differed if the seat belt evidence had been




                                              - 12 -
properly excluded, we can clearly say that the admission likely caused the rendition of an

improper judgment. We sustain Issue Three and reverse and remand for a new trial.


January 30, 2013                     _______________________________________________
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating




                                              - 13 -
