                                                                                    ACCEPTED
                                                                                 05-17-01122-cv
                                                                      FIFTH COURT OF APPEALS
                                                                                DALLAS, TEXAS
                                                                             1/30/2018 11:49 PM
                                                                                     LISA MATZ
                                                                                         CLERK

                 Case No. 05-17-01122-CV
___________________________________________________
                                                        FILED IN
                                                 5th COURT OF APPEALS
               In the Court of Appeals of Texas      DALLAS, TEXAS
                        Fifth District          01/30/2018 11:49:26 PM
___________________________________________________    LISA MATZ
                                                         Clerk

                           Cia Babiy
                            Appellant
                                                              RECEIVED IN
                                                         5th COURT OF APPEALS
                               v.                            DALLAS, TEXAS
                                                        01/30/2018 11:49:26 PM
               Ramzi Morgan Kelley                             LISA MATZ
                                                                 Clerk
                       Appellee
___________________________________________________

                       On Appeal from the
           416th Judicial District Court, Collin County
               Hon. Andrea Thompson, Presiding
             Trial Court Cause No. 416-04069-2015
___________________________________________________

                 Appellant’s Brief
___________________________________________________


                                    Matthew J. Kita
                                    Texas Bar No. 24050883
                                    P.O. Box 5119
                                    Dallas, Texas 75208
                                    (214) 699-1863 (phone)
                                    (214) 347-7221 (facsimile)
                                    matt@mattkita.com
                                    Counsel for Appellant
                 Identity of Parties and Counsel


Appellants:            Cia Babiy

Appellate Counsel:     Matthew J. Kita
                       P.O. Box 5119
                       Dallas, Texas 75208

Trial Counsel:         Carlos A. Fernandez
                       Mark D. Frenkel
                       Frenkel & Frenkel, LLP
                       12700 Park Central Drive, Suite 1900
                       Dallas, Texas 75251

Appellee:              Ramzi Morgan Kelley

Appellate Counsel:     Gregory R. Ave
                       Walters, Balido & Crain, LLP
                       10440 North Central Expressway, Suite 1500
                       Dallas, Texas 75231

Trial Counsel:         Mr. Scott A. Henderson
                       Trina T. Wilson & Associates
                       2280 North Greenville Avenue
                       Richardson, Texas 75082




                                   -i-
                                     Table of Contents

Identity of Parties and Counsel ................................................................................ i

Index of Authorities .............................................................................................. iii

Statement of the Case ............................................................................................ v

Statement Regarding Oral Argument .................................................................... vi

Issues Presented ................................................................................................... vii

Statement of Facts ..................................................................................................1

Summary of the Argument ..................................................................................... 4

Argument ............................................................................................................... 6

I.       The jury’s verdict finding that Kelley was not negligent is not
         supported by sufficient evidence. ................................................................. 6

                  The evidence in the record conclusively establishes Kelley’s
                  negligence. ......................................................................................... 6

                  The jury’s verdict was clearly wrong and unjust. ............................... 11

II.      The trial court erred by refusing to give the jury an instruction on
         negligence per se. ........................................................................................ 12

Conclusion and Prayer .......................................................................................... 14

Certificate of Compliance...................................................................................... 15

Certificate of Service ............................................................................................. 16




                                                      - ii -
                               Index of Authorities

Cases

Carrington v. Denison Poultry & Egg Co.,
  No. 05-91-01181-CV, 1992 WL 193487
  (Tex. App.—Dallas Aug. 11, 1992, writ denied) ..................................... 13

Dow Chem. Co. v. Francis,
  46 S.W.3d 237 (Tex. 2001) ................................................................. 6, 11

El Chico Corp. v. Poole,
   732 S.W.2d 306 (Tex. 1987) .................................................................... 7

Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n,
    710 S.W.2d 551 (Tex. 1986) ..................................................................... 6

Lynch v. Ricketts,
   314 S.W.2d 273 (Tex. 1958) ................................................................... 10

Melvin v. Jimenez, No. 04-00-00746-CV, 2002 WL 21963 (Tex. App.—San
  Antonio Jan. 9, 2002, no pet.) ................................................................. 8

Nixon v. Mr. Property Management Co.,
   690 S.W.2d 546 (Tex. 1985) ...................................................................12

P.A.M. Transp., Inc. v. Stevens Transp., Inc.,
   No. 05-12-01031-CV, 2013 WL 3948880
   (Tex. App.—Dallas July 31, 2013, no pet.) ............................................ 10

Shupe v. Lingafelter,
  192 S.W.3d 577 (Tex. 2006) ................................................................... 13

Supreme Beef Packers, Inc. v. Maddox,
   67 S.W.3d 453 (Tex. App.—Texarkana 2002, pet. denied) ................. 7, 8

W. Invs., Inc. v. Urena,
   162 S.W.3d 547 (Tex. 2005) .................................................................... 7




                                                - iii -
Statutes

Tex. Transp. Code § 552.002 ............................................................. vi, 8, 12

Tex. Transp. Code § 552.003 ...................................................................... 11

Rules

Tex. R. Civ. P. 277....................................................................................... 13




                                                    - iv -
                  Statement of the Case

Nature of the   Suit for personal injuries suffered in a motor vehicle
Case:           accident.

Course of       Case was tried to a jury, who returned a verdict in
Proceedings:    Appellee’s favor.

Trial Court’s   Entered a judgment on the jury’s verdict.
Disposition:




                                 -v-
             Statement Regarding Oral Argument

      Appellant respectfully submits that the issues presented in this appeal

are straightforward and uncomplicated, and that the relevant facts and

applicable legal standards are adequately presented in this brief. However,

Appellant acknowledges that no Texas court has yet considered whether a

violation of section 552.002 of the Texas Transportation Code can constitute

negligence per se. Should the Court determine that oral argument would

assist its analysis of this issue of first impression, Appellant respectfully

requests the opportunity to participate.




                                       - vi -
                         Issues Presented

1.   When viewed in light most favorable to the Appellee, the evidence in
     the record reflects that the Appellee was stopped at a red light,
     released her brake when the light turned green, never touched the
     accelerator, began to make a left turn into the left lane of a one-way
     street, and when doing so, hit Appellant, a pedestrian travelling in the
     same direction as Appellee was previously facing, with the right front
     of her vehicle when she was crossing the street towards a “walk”
     signal. The jury returned a verdict that Appellee was not negligent. Is
     this finding supported by legally or factually sufficient evidence?

2.   Under Texas law, the violation of a statute is deemed “negligence per
     se” if it imposes an absolute duty on a person, and if the plaintiff is a
     member of the class of persons that the statute was designed to
     protect. The Texas Transportation Code provides that motor-vehicle
     operators must yield the right of way to pedestrians in a crosswalk who
     are proceeding towards a “walk” signal. If the jury heard evidence
     that Appellant was a pedestrian in a crosswalk proceeding towards a
     “walk” signal, did the trial court err when it refused to instruct the
     jury on negligence per se?




                                    - vii -
                                 Statement of Facts

          This case arises out of a collision between a motor vehicle driven by

Appellee Ramzi Morgan Kelley and a pedestrian in a crosswalk, Appellant

Cia Babiy. Immediately before the collision, Kelley’s vehicle was stopped at

a red light in the left hand lane of a one-way street.1 Babiy was a pedestrian

on the corner of the sidewalk directly next to Kelley’s vehicle, facing the

same direction.2

          At the same time that Kelley’s traffic signal turned green, the

pedestrian control signal in front of Babiy signaled that she could “walk.”3

Babiy stepped into the crosswalk toward the pedestrian control signal.4

Kelley lifted her foot off of her brake and, without pressing the accelerator,

began to make a left turn.5 When entering the crosswalk, the right front side6

of her Dodge Caliber sport-utility vehicle7 collided with Babiy, who was

thrown to the ground, and sustained injuries to her neck, shoulder, left leg,

1
    5 R.R. 112.
2
    6 R.R. 36.
3
    5 R.R. 113, 6 R.R. 38, 11 R.R. Pl’s Ex. 200A ¶ 18.
4
    6 R.R. 38–39.
5
    5 R.R. 117–18.
6
    11 R.R. Pl’s Ex. 200A ¶ 13
7
    5 R.R. 108; 8 R.R. Pl’s Ex. 2.



                                               -1-
right knee, and left hand.8

           Babiy filed suit against Kelley, alleging causes of action for negligence

and negligence per se.9 At trial, Babiy testified and offered evidence that she

had incurred more than $60,000 in medical expenses as a result of this

collision,10 which included surgeries that left her with scars on her shoulder

and wrist,11 and that her injuries had prevented or limited her ability to

participate in certain activities such as yoga, skiing, hiking, and cycling.12

After two days of testimony, the case was submitted to the jury.

           At the charge conference, Babiy submitted a written proposal that that

the jury be instructed that “the law requires drivers to give the right-of-way

to pedestrians if the pedestrian has a walk signal.” and “failure to comply

with this law is negligence in itself.”13 The trial court refused to give this

instruction, and Babiy objected to its exclusion, which the trial court




8
     6 R.R. 52.
9
    C.R. 253.
10
     6 R.R. 70.
11
     6 R.R. 67–68.
12
     6 R.R. 65, 125–26.
13
     Supp. C.R. 9.



                                           -2-
overruled.14 The jury returned a verdict in which it found the neither Babiy

nor Kelley were negligent.15 Accordingly, it did not answer any of the

subsequent questions regarding percentage of responsibility or damages.16

          Babiy filed a motion to disregard the jury’s findings and a motion for

judgment notwithstanding the verdict,17 both of which were denied.18 The

trial court entered a take-nothing final judgment in Kelley’s favor.19 Babiy

then filed a motion for new trial in which she noted that the evidence was

insufficient to support the verdict.20 The trial court denied this motion as

well.21 Accordingly, Babiy timely perfected this appeal.22




14
     6 R.R. 134–35.
15
     C.R. 330.
16
     C.R. 330–32.
17
     C.R. 334–42.
18
     C.R. 348.
19
     C.R. 343.
20
     C.R. 349–53.
21
     C.R. 357.
22
     C.R. 358.



                                         -3-
                     Summary of the Argument

       This Court should reverse the trial court’s judgment and remand this

case for a new trial. Even when the evidence is viewed in a light most

favorable to Kelley, it reflects that she was stopped at a red light, released her

brake when the light turned green, never touched the accelerator, began to

make a left turn into the left lane of a one-way street, and when doing so, hit

Babiy, a pedestrian travelling in the same direction as Kelley was previously

facing, with the right front of her vehicle when she was crossing the street

towards a “walk” signal. Regardless of whether this Court concludes that

the relevant duty is imposed by statute or common law the jury’s finding that

Kelley was not negligent is either not supported by any evidence, or it is

against the great weight and preponderance of the evidence. Either way,

Babiy is entitled to a new trial.

       Alternatively, this Court should conclude that the trial court erred

when it refused to instruct the jury that “the law requires drivers to give the

right-of-way to pedestrians if the pedestrian has a walk signal” and that the

“failure to comply with this law is negligence in itself.” This requirement is

codified in a statute, imposes an absolute requirement on Kelley, Babiy is

obviously a member of the class of persons the statute is designed to protect.



                                       -4-
Babiy was therefore entitled to have the jury receive such an instruction, the

trial court abused its discretion by refusing to provide it, and its failure to do

so likely resulted in the rendering of an improper verdict. The remedy for

such an error is also reversing the trial court’s judgment and remanding this

case for a new trial.




                                        -5-
                                         Argument

I.        The jury’s verdict finding that Kelley was not negligent is not
          supported by sufficient evidence.

          The evidence in the record conclusively establishes Kelley’s
          negligence.

          This Court should reverse the trial court’s judgment because the

jury’s finding that Kelley was not negligent is not supported by any evidence

in the record. Accordingly, this Court must conclude that the jury’s verdict

is legally insufficient, and that Babiy is entitled to a new trial.

          The standard of review for a legal-sufficiency challenge is well-

established. Because Babiy had the burden of proof at trial, this court may

sustain this legal-sufficiency challenge if the record conclusively establishes

Kelley’s negligence.23 A fact is conclusively established when the evidence is

such that there is no room for ordinary minds to differ as to the conclusion to

be drawn from it.”24 Even when reviewing the evidence in a light most

favorable to the jury’s verdict,25 Babiy respectfully submits that, as a matter

of law, she was entitled to a finding that Kelley was negligent.


23
     See, e.g., Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).
24
  Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 564 (Tex.
1986).
25
     See, e.g., Francis, 46 S.W.3d at 241.



                                              -6-
          To prevail on her negligence cause of action, Babiy was required to

prove that Kelley owed her a legal duty, and that Kelley’s breach of that duty

was a proximate cause of her damages.26 Ordinarily, the duty that an

individual owes to other members of the general public is simply to exercise

reasonable care to avoid risk to others.27 But as the Sixth Court of Appeals

noted in its 2002 opinion in Supreme Beef Packers v. Maddox, when a statute

imposes an absolute (as opposed to a conditional) duty on a person, and

when the plaintiff is a member of the a class of persons that the statute was

designed to protect, “the statute itself states what a reasonably prudent

person would have done [and] if an excuse is not raised, the only inquiry for

the jury is whether or not the defendant violated the statute or regulation

and, if so, whether the violation was a proximate cause of the injury.”28

          Here, Kelley’s duties to Babiy were determined by such a statute.

Section 552.002(b) of the Texas Transportation Code, entitled “Pedestrian

Right-of-Way if Control Signal Present” provides:




26
     See, e.g., W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
27
     See, e.g., El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987).
28
  Supreme Beef Packers, Inc. v. Maddox, 67 S.W.3d 453, 455–56 (Tex. App.—Texarkana
2002, pet. denied).



                                               -7-
          A pedestrian facing a “Walk” signal may proceed across a
          roadway in the direction of the signal, and the operator of a
          vehicle shall yield the right-of-way to the pedestrian.29

Unlike other provisions in the Transportation Code that condition the right-

of-way on what a reasonable person should do,30 section 552.002 “leaves the

driver no discretion or room for the exercise of judgment.”31 Much like the

law that requires vehicles to stop at a flashing red light, this provision is

similarly absolute: if a pedestrian has a “walk” signal, the driver must yield.

Because it is undisputed that (a) Babiy was proceeding across the roadway

facing a “walk” signal and (b) Kelley hit Babiy with her vehicle, Babiy

conclusively established the elements of duty and breach. And because

Kelley did not make any argument or offer any evidence to suggest that the

collision was not the proximate cause of at least some of Babiy’s damages,

there is legally insufficient evidence to support the jury’s finding that Kelley

was not negligent.



29
     Tex. Transp. Code § 552.002 (emphasis added).
30
  See, e.g., Melvin v. Jimenez, No. 04-00-00746-CV, 2002 WL 21963, at *4 (Tex. App.—
San Antonio Jan. 9, 2002, no pet.) (not designated for publication) (concluding that
section 545.152 of the Transportation Code did not impose an absolute duty because it
conditioned the right-of-way on whether an oncoming vehicle was “an immediate
hazard”).
31
     Maddox, 67 S.W.3d at 456.



                                          -8-
          This Court should reach the same conclusion even if it determined

that section 552.002 does not determine the scope of Kelley’s duties because

there is also no evidence in the record to support Kelley’s the jury’s finding

that she was not negligent under the common-law definition. First, although

Kelley acknowledged that she was very familiar with the intersection,32 she

also admitted that she did not look to see if the “walk” signal was on before

she entered the intersection.33 Kelley claims that she stopped her vehicle at

the stop light and began her left turn by taking her foot off the brake without

ever touching the accelerator.34 Although Kelley claims that she was looking

ahead the entire time and did not see Babiy before the collision,35 it is

undisputed that Kelley hit Babiy with the front right side of her vehicle,36 a

Dodge Caliber sport-utility vehicle.37 It is also undisputed that on the night of

the incident, the sky was clear, the intersection was well lit, and there were




32
     5 R.R. 109.
33
     5 R.R. 113.
34
     5 R.R. 117.
35
     5 R.R. 113.
36
     11 R.R. Pl’s Ex. 201A ¶ 13.
37
     5 R.R. 108; 8 R.R. Pl’s Ex. 2.



                                       -9-
few cars on the road.38 Finally, it is also undisputed that the jury also found

that Babiy was not negligent.39

          Accordingly, when all of the evidence in the record is viewed in a light

most favorable to Kelley, the only reasonable conclusion that can be drawn

from the evidence is that Kelley was not using reasonable care while she was

operating her vehicle. There is no evidence in the record that could allow a

rational juror to believe Kelley’s claim that Babiy—who it found to be not

negligent—was able to walk almost all the way in front of Kelley’s vehicle,

while Kelley was driving it without any added acceleration, on a clear night

with no visibility problems, while looking forward the entire time, without

seeing her at all. If this Court credits Kelley’s testimony that she did not see

Babiy before the collision, it must necessarily conclude that she was not

keeping a proper lookout, which is a breach of the duty to use reasonable

care.40 Alternatively, if it reasons that Kelley must have seen the non-


38
     11 R.R. Pl’s Ex. 201A ¶ 11.
39
     C.R. 330.
40
  P.A.M. Transp., Inc. v. Stevens Transp., Inc., No. 05-12-01031-CV, 2013 WL 3948880, at
*1 (Tex. App.—Dallas July 31, 2013, no pet.) (citing Lynch v. Ricketts, 314 S.W.2d 273,
275 (Tex. 1958) (“Every motorist has a duty to keep a proper lookout. A proper lookout
encompasses the duty to observe, in a careful and intelligent manner, traffic and the
general situation in the vicinity, including speed and proximity of other vehicles as well as
rules of the road and common experience.”).



                                            - 10 -
negligent Babiy in the intersection, it must necessarily conclude that Kelley

failed to yield the right of way.41 Under either circumstance, the evidence in

the record conclusively establishes that Kelley was negligent. The jury’s

finding to the contrary, therefore, is not supported by legally sufficient

evidence, and Babiy is entitled to a new trial.

          The jury’s verdict was clearly wrong and unjust.

          Alternatively, even if this Court were to conclude that there was more

than a scintilla of evidence that supports the jury’s finding that Kelley was

not negligent, it should hold that the evidence was factually insufficient to

support the verdict it is against the great weight and preponderance of the

evidence.42 For the reasons discussed in the previous section, the great

weight and preponderance of the evidence demands a finding that Kelley was

negligent.43 Because the jury’s “no” answer regarding Kelley’s liability is

clearly wrong and unjust,44 this Court should reverse the trial court’s

judgment and remand this case for a new trial.



41
     Tex. Transp. Code § 552.003.
42
     See, e.g., Francis, 46 S.W.3d at 242.
43
     See, e.g., Francis, 46 S.W.3d at 242.
44
     See, e.g., Francis, 46 S.W.3d at 242.



                                             - 11 -
II.       The trial court erred by refusing to give the jury an instruction on
          negligence per se.

          This Court should reverse the trial court’s judgment and remand this

case for a new trial because the court below failed to properly instruct the

jury on negligence per se. For the reasons discussed above, section

552.002(b) of the Transportation Code imposed an absolute, non-conditional

duty on Kelley to yield the right of way to pedestrians in a crosswalk facing a

“walk” signal.45 The trial court denied Babiy’s proposed instruction,46 which

would have informed the jury:

          The law requires drivers to give the right-of-way to pedestrians
          if the pedestrian has a walk signal. Failure to comply with this
          law is negligence in itself.47

This proposed instruction is consistent both the language of the statute, and

the form set forth in Texas Pattern Jury Charge 5.1. Moreover, there can be

no dispute that this statue was designed to prevent injuries to pedestrians, a

class of persons to whom Babiy obviously belonged.48

          When a trial court refuses to submit a requested instruction on an


45
     Tex. Transp. Code § 552.002(b).
46
     6 R.R. 134–35.
47
     Supp. C.R. 9.
48
     Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985).



                                           - 12 -
issue raised by the pleadings and evidence, the question on appeal is whether

the request was reasonably necessary to enable the jury to render a proper

verdict.49 There is no question that Babiy pleaded a negligence per se cause

of action in her pleadings,50 and as discussed above, the jury was presented

with evidence that Babiy was a pedestrian in a crosswalk facing a “walk”

signal.51 As this Court held in its 1992 opinion in Carrington v. Dennison

Poultry & Egg Co.:

          When a broad-form jury question is given, it is important that
          the instructions associated with that question place before the
          jury each theory of liability raised at trial. If the jury found that
          [the defendant] was not negligent, then the failure to submit the
          requested instruction on negligence per se was harmful. We
          hold that the failure to submit the requested instruction was
          an abuse of discretion because its omission likely caused the
          rendition of an improper verdict.52

The same result should follow here. Because the instruction was warranted

by the law, the pleadings, and the evidence, because the instruction was not

given, and because the jury found that Kelley was not negligent, it is likely

49
  Tex. R. Civ. P. 277 (“The court shall submit such instructions and definitions as shall
be proper to enable the jury to render a verdict”); Shupe v. Lingafelter, 192 S.W.3d 577,
579 (Tex. 2006).
50
     C.R. 253.
51
     6 R.R. 36–39.
52
  Carrington v. Denison Poultry & Egg Co., No. 05-91-01181-CV, 1992 WL 193487, at *3
(Tex. App.—Dallas Aug. 11, 1992, writ denied) (not designated for publication).



                                           - 13 -
that the jury rendered an improper verdict. This Court, therefore, should

conclude that the trial court abused its discretion, reverse its judgment, and

remand this case for a new trial.

                        Conclusion and Prayer

       The evidence in the record reveals that Appellee Ramzi Morgan

Kelley hit Appellant Cia Baby with her vehicle because she either failed to

yield the right of way or failed to keep a proper lookout. This Court,

therefore, should concludes that Babiy either “conclusively established”

Kelley’s negligence or that the jury’s finding of lack of negligence was

“against the great weight and preponderance of the evidence.”

Alternatively, this Court should conclude that the trial court abused its

discretion when it refused to instruct the jury that “the law requires drivers

to give the right-of-way to pedestrians if the pedestrian has a walk signal”

and that the “failure to comply with this law is negligence in itself.”

Regardless of which option this Court chooses, it should reverse the trial

court’s judgment, remand the case for a new trial, and grant Babiy all other

relief to which she is entitled.




                                      - 14 -
                                             Respectfully submitted,

                                             /s/ Matthew J. Kita
                                             Matthew J. Kita
                                             Texas Bar No. 24050883
                                             P.O. Box 5119
                                             Dallas, Texas 75208
                                             (214) 699-1863 (phone)
                                             (214) 347-7221 (facsimile)
                                             matt@mattkita.com
                                             Counsel for Appellant



                   Certificate of Compliance

       This brief complies with Texas Rule of Appellate Procedure 9.4(i)
because it contains 2,757 words (excluding the parts of the brief exempted by
this rule).

      Signed this 30th day of January, 2018.

                                             /s/ Matthew J. Kita
                                             Matthew J. Kita




                                    - 15 -
                        Certificate of Service

      The undersigned certifies that a copy of this brief was served on the
following counsel via e-filing in accordance with Texas Rule of Appellate
Procedure 9.5 and this Court’s Local Rules on January 30, 2018.

Counsel for Appellee:

      Gregory R. Ave
      Walters, Balido & Crain, LLP
      10440 North Central Expressway, Suite 1500
      Dallas, Texas 75231

                                       /s/ Matthew J. Kita
                                       Matthew J. Kita




                                    - 16 -
                                    S/21§/2017 10:54 AM   Page   1




                                   CAUSE NO. 416-04069-2015
                                                                                     ORIGINAL
CIA BABIY.                                                             IN THE DISTRICT COURT

             Plaintitt:

V.                                                                    416r 11 JUDICIAL DISTRICT

RAMZI MORGAN KELLEY.

             Defendant.                                               COLLIN COUNTY. TEXAS


                          FIRST AMENDED CHARGE OF THE COURT

MEMBERS OF THE JURY:

       After closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached. and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.

        Remember my previous instructions: Do not discuss the case with anyone else. either in
person or by any other means. Do not do any independent investigation about the case or conduct
any research. Do not look up any words in dictionaries or on the Internet. Do not post inforn1ation
about the case on the Internet. Do not share any special knowledge or experiences with the other
jurors. Do not use your phone or any other electronic device during your deliberations for any
reason. I will give you a number where others may contact you in case of an emergency.

       Here are the instructions for answering the questions:

        1.       Do not let bias, prejudice or sympathy play any part in your decision.

        2.      Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was not admitted in
the courtroom.

        3.       You are to make up your own minds about the facts. You arc the sole judges ofthe
credibility of the witnesses and the weight to give their testimony. But on matters of law. you must
t()llow all of my instructions.

        4.    If my instructions use a word in a way that is different from its ordinary meaning.
use the meaning I give you, which will be a proper legal definition.




                                                                                            326
       5.      All ofthe questions and answers are important. No one should say that any question
or answer is not important.

       6.      Answer "yes" or ··no'' to all questions unless you are told otherwise. A "yes"
answer must be based on a preponderance of the evidence. Whenever a question requires an
answer other than ·•yes'' or ··no''. your answer must be based on a preponderance of the evidence.

       The term ··preponderance ofthe evidence'' means the greater weight of credible evidence
presented in the case. If you do not find that a preponderance of the evidence supports a ··yes"
answer, then answer ··no." A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.

        A fact may be established by direct evidence or by circumstantial evidence or both. A fact
is established by direct evidence when proved by documentary evidence or by witnesses who saw
the act done or heard the words spoken. A fact is established by circumstantial evidence when it
may be fairly and reasonably inferred from other facts proved.

       7.     Do not decide who you think should win before you answer the questions and then
just answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.

        8.      Do not answer questions by drawing straws or by any method of chance.

       9.      Some questions might ask you for a dollar amount. Do not agree in advance to
decide on a dollar amount by adding up each juror's amount and then figuring out the average.

       10.    Do not trade your answers. For example. do not say. "I will answer this question
your way if you answer another question my way:·

        II.     The answers to the questions must be based on the decision of at least ten of the
twelve jurors. The same tcnjurors must agree on every answer. Do not agree to be bound by a vote
of anything less than ten jurors, even if it would be a majority.

       As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct and I might have to order a new trial and start this process over again. This would
waste your time and the parties' money. and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules. tell that person to stop and report it to me
immediately.

                  DEFINITIONS AND EXPLANATORY INSTRUCTIONS

        '·Negligence'' means failure to usc 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

                                                                                                    2




                                                                                              327
which a person of ordinary prudence would not have done under the same or similar
circumstances.

      '·Ordinary care·· means that degree of care that would be used by a person of ordinary
prudence under the same or similar circumstances.

        ·'Proximate cause" means a cause that was a substantial factor in bringing about an
occurrence. and without which cause such occurrence would not have occurred. In order to be a
proximate cause, the act or omission complained of must be such that a person using ordinary care
would have foreseen that the occurrence, or some similar occurrence, might reasonably result
therefrom. There may be more than one proximate cause of an occurrence.

                                     PRESIDING .JUROR:

        1.      When you go into the jury room to answer the questions. the first thing you will
need to do is choose a presiding juror.

       2.      The presiding juror has these duties:
               a.     have the complete charge read aloud if it will be helpful to your
                      deliberations;
               b.     preside over your deliberations. meaning manage the discussions. and sec
                      that you follow these instructions;
               c.     give written questions or comments to the bailiff who will give them to the
                      judge;
               d.     write down the answers you agree on;
               e.     sign the verdict certificate or get the signatures for the verdict certificate:
                      and
               f.     notify the bailiff that you have reached a verdict.


            INSTRUCTIONS FOR SIGNING THE VERDICT CERTIFICATE:

       1.     You may answer the questions on a vote of ten ( 10) jurors. The same ten jurors
must agree on every answer in the charge. This means you may not have one group of ten jurors
agree on one answer and a different group of ten jurors agree on another answer.

        2. lftenjurors agree on every answer. those ten jurors sign the verdict.
        If eleven jurors agree on every answer, those eleven jurors sign the verdict.
        If all twelve ofyou agree on every answer. you are unanimous and only the presidingjuror
signs the verdict.

       3.      All jurors should deliberate on every question. You may end up with all twelve of
you agreeing on some answers, while only ten or eleven of you agree on other answers. But when
you sign the verdict, only those ten who agree on every answer will sign the verdict.

                                                                                                   3




                                                                                             328
       After you have retired to consider your verdict. no one has any authority to communicate
with you except the bail itT of this Court. You should not discuss the case with anyone, not even
with other members of the jury, unless all of you are present and assembled in the jury room.
Should anyone attempt to talk to you about the case before the verdict is returned, whether at the
courthouse, at your home, or elsewhere, please inform the Judge.

         When you have answered all of the questions which you arc required to answer under the
instructions of the Judge. and your Presiding Juror has placed your answers in the spaces provided.
and obtained the signatures on the verdict certificate, you will advise the bail itT at the door of the
jury room that you have reached a verdict, and then you will be brought into Court with your
verdict.


        Signed :ftme 20. 20 I 'I

                 (jUN- ::t-1 ,1 ?-D \I

                                                       A=jVw~
                                                       Judge Presiding




                                                                                                     4




                                                                                               329
                                        Question No. 1

       Did the negligence, if any, of those listed below proximately cause the occurrence in
question?

Answer ··Yes" or ·'No.''

Answer:
   a. Ramzi Kelley
   b. Cia Babiy
                           B8
                           ~-



       If you answered ·'Yes·· to Question I for more than one ofthose named. then answer the
following question. Otherwise, do not answer the tollowing question.


                                        Question No. 2

        Assign percentages of responsibility only to those you found caused or contributed to the
occurrence. The percentages you find must total I 00%. The percentages must be expressed in
whole numbers. The percentage of responsibility attributable to any one is not necessarily
measured by the number of acts or omissions tound. The percentage attributable to any one need
not be the same percentage attributed to that one in answering another question

       For each person you found caused or contributed to cause the occurrence, find the
percentage of negligence, if any, attributable to each:

Answer:
   a. Ramzi Kelley
   b. Cia Babiy

       Total          100%

Answer Question No.3 if you answered "Yes" for Ramzi Kelley to Question No. I and
answered:
      I. "No" for Cia Babiy to Question No. I, or
      2. 50 percent or less for Cia Babiy to Question No. 2

Otherwise do not answer Question No. 3




                                                                                                 5




                                                                                           330
                                     Question No.3

      What sum of money, if paid now in cash. would fairly and reasonably compensate
Cia Babiy for her injuries, if any. proximately caused by the occurrence in question?

        Do not include any amount for any condition existing before the occurrence in
question, except to the extent, if any. that such other condition was aggravated by any
injuries that resulted from the occurrence in question.

       Consider the elements of damages listed below and none other. Consider each
clement separately. Do not award any sum of money on any clement that if you have
otherwise, under some other element, awarded a sum of money for the same loss. That is.
do not compensate twice for the same loss. if any. Do not include interest on any amount
of damages you find.

     Answer separately, in dollars and cents. for damages. if any. Do not reduce the
amounts, if any. in your answers because of the negligence. if any of Cia Babiy.

       Any recovery will be determined by the court when it applies the law at the time of
the answer to your judgment.

a.    Medical care expenses incurred in the past.

      Answer:$ - - - - - - -

b.    Medical care expenses that. in reasonable probability. Cia   Bab~v   \viii incur in the
      future.

      Answer:$- - - - - - -

c.    Physical impairment sustained in the past.

      Answer:$- - - -

d.    Physical impairment that in reasonable probability. Cia Babiy will incur in the
      future.

      Answer:$- - - - - - -

c.    Disfigurement sustained in the past.

                                                                                                6




                                                                                       331
     Answer:$- - - - - - -

f.   Disfigurement that, in reasonable probability, Cia Babiy will incur in the future.

     Answer:$- - - - - - -

g.   Loss of earning capacity sustained in the past.

     Answer:$ - - - - - - -

h.   Loss of earning capacity that in reasonable probability, Cia Babiy will sustain in
     the future.

     Answer:$ - - - - - - -

1.   Physical pain and suffering sustained in the past.

     Answer:$ - - - - - - -

J.   Physical pain and suffering that. in reasonable probability, Cia Babiy will sustain in
     the future.

     Answer:$- - - - - - -

k.   Mental anguish sustained in the past.

     Answer:$- - - - - - -

I.   Mental anguish that, in reasonable probability. Cia Babiy will sustain in the future.

     Answer:$ - - - - - - -




                                                                                          7




                                                                                    332
                                          VERDICT CERTIFICATE

         We. the jury. have answered the above and foregoing special issues or questions as herein indicated. and
herewith retum same into court as our verdict.

                               (To be signed by the presiding juror if unanimous)




                                                                                                               8




                                                                                                         333
                                                                              Filed: 6/26/2017 2:55 PM
                                                                              Lynne Finley
                                                                              District Clerk
                                                                              Collin County, Texas
                                                                              By Christina Zamora Deputy
                                                                              Envelope ID: 17840231
                                 CAUSE NO. 416-04069-2015

CIA BABIY,                                     §     IN THE DISTRICT COURT
PLAINTIFF                                      §
                                               §
v.                                             §     416TH JUDICIAL DISTRICT
                                               §
RAMZI MORGAN KELLEY,                           §     COLLIN COUNTY, TEXAS
DEFENDANT
                                   FINAL JUDGMENT

       On the 19th day of June, 2017, this case, filed in the 416th Judicial District Court of Collin

County, Texas was called to trial. Plaintiff Cia Babiy appeared in person and by attorney and

announced ready for trial. Defendant Ramzi Morgan Kelley appeared in person and by attorney

and announced ready for trial. A jury of 12 qualified jurors was empaneled and the case

proceeded to trial.

       At the conclusion of the evidence, the Court submitted the Court’s charge and questions

of fact to the jury. The jury’s 10-2 verdict was returned on the 21st day of June, 2017. The jury

found that neither Defendant Ramzi Morgan Kelley nor Plaintiff Cia Babiy were negligent in the

12/19/2013 motor vehicle accident . The jury’s verdict was returned in open court and accepted

by the Court.

       Based on the jury’s verdict, it is ORDERED, ADJUDGED and DECREED that Plaintiff

Cia Babiy take nothing from Defendant Ramzi Morgan Kelley. Court costs are ordered paid by

Plaintiff for which execution is ORDERED if not timely paid. All relief not granted herein is

denied. This is a Final Judgment for purposes of appeal.
                                     6/29/2017
       Signed this ________ day of ____________________, 2017.

                                              ___________________________________
                                              Hon. Andrea Thompson, Judge Presiding




                                                                                                 343
§ 552.002. Pedestrian Right-of-Way if Control Signal Present, TX TRANSP § 552.002




  Vernon's Texas Statutes and Codes Annotated
    Transportation Code (Refs & Annos)
      Title 7. Vehicles and Traffic (Refs & Annos)
        Subtitle C. Rules of the Road (Refs & Annos)
           Chapter 552. Pedestrians

                                         V.T.C.A., Transportation Code § 552.002

                             § 552.002. Pedestrian Right-of-Way if Control Signal Present

                                                          Currentness


(a) A pedestrian control signal displaying “Walk,” “Don't Walk,” or “Wait” applies to a pedestrian as provided by this
section.


(b) A pedestrian facing a “Walk” signal may proceed across a roadway in the direction of the signal, and the operator
of a vehicle shall yield the right-of-way to the pedestrian.


(c) A pedestrian may not start to cross a roadway in the direction of a “Don't Walk” signal or a “Wait” signal. A
pedestrian who has partially crossed while the “Walk” signal is displayed shall proceed to a sidewalk or safety island
while the “Don't Walk” signal or “Wait” signal is displayed.


Credits
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.



Notes of Decisions (1)

V. T. C. A., Transportation Code § 552.002, TX TRANSP § 552.002
Current through the end of the 2017 Regular and First Called Sessions of the 85th Legislature

End of Document                                                © 2018 Thomson Reuters. No claim to original U.S. Government Works.




               © 2018 Thomson Reuters. No claim to original U.S. Government Works.                                              1
                                                                             Filed: 6/21/2017 4:15 PM
                                                                             Lynne Finley
                                                                             District Clerk
                                                                             Collin County, Texas
                                                                             By Christina Zamora Deputy
                                                                             Envelope ID: 17762520
                                  CAUSE NO. 416-04069-2015

CIABABIY,                                       §                      IN THE DISTRICT COURT
                                                §
           Plaintiff,                           §
                                                §
v.                                              §                    416TH JUDICIAL DISTRICT
                                                §
RAMZI MORGAN KELLEY,                            §
                                                §
           Defendant.                           §                    COLLIN COUNTY, TEXAS


         PLAINTIFF'S THIRD AMENDED PROPOSED JURY INSTRUCTIONS,
                        DEFINITIONS, AND QUESTIONS

       COMES NOW, Plaintiff, CIA BABIY, and files the following Second Amended Proposed

Jury Instructions, Definitions, and Questions.        By submitting these requested instructions,

definitions, and questions, Plaintiff does not waive any of her arguments or claims. Plaintiff

reserves the right to modify, amend, supplement, or withdraw any of these requests as may be

necessary to ensure a proper and just adjudication.

                                             Respectfully submitted,

                                             FRENKEL & FRENKEL, L.L.P.
                                             12700 Park Central Drive, Suite 1900
                                             Dallas, Texas 75251
                                             (214) 333-3333
                                             (214) 265-9360 (telecopier)



                                     By:     Is/ Carlos A. Fernandez
                                             Carlos A. Fernandez

                                             Carlos A. Fernandez
                                             State Bar No. 24036555
                                             carlos@frenkelfirm. com
                                             Mark D. Frenkel
                                             State Bar No. 00784083
                                             me@markfrenkel.com

                                             COUNSEL FOR PLAINTIFF



                                                                                                     4
                                    CERTIFICATE OF SERVICE

        This is to certify, pursuant to Rule 21 a of the Texas Rules of Civil Procedure, that a true
and correct copy of Plaintiff's Third Amended Proposed Jury Instructions, Definitions, and
Questions have been forwarded to the following counsel of record on this the 20 day of June, 2017
as follows:

Scott A. Henderson, Esq.                          Via Hand Delivered
TRINA T. WILSON & ASSOCIATES
2280 North Greenville Avenue
Richardson, Texas 75082
Attorney for Defendant

                                          By:     Is/ Carlos A. Fernandez
                                                  Carlos A. Fernandez




PLAfNTlFF'S T HIRD AM ENDED l'IWPOSEil JURY INSTRUCTIONS, OE F"IN ffiO S. AND QUESTIONS - PAGE 2




                                                                                                   5
                                                                          \
                                                                          '


                                   CHARGE OF THE COURT

MEMBERS OF THE JURY:

       After closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.

        Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or conduct
any research. Do not look up any words in dictionaries or on the Internet. Do not post information
about the case on the Internet. Do not share any special knowledge or experiences with the other
jurors. Do not use your phone or any other electronic device during your deliberations for any
reason. I will give you a number where others may contact you in case of an emergency.

        Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely
on your independent recollection of the evidence and not be influenced by the fact that another
juror has or has not taken notes.

        You must leave your notes with the bailiff when you are not deliberating. The bailiff will
give your notes to me promptly after collecting them from you. I will make sure your notes are
kept in a safe, secure location and not disclosed to anyone. After you complete your deliberations,
the bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly
destroy your notes so that nobody can read what you wrote.

        Here are the instructions for answering the questions:

        1.      Do not let bias, prejudice or sympathy play any part in your decision.

        2.      Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was not admitted in
the courtroom.

        3.       You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters oflaw, you must
follow all of my instructions.

        4.    If my instructions use a word in a way that is different from its ordinary meaning,
use the meaning I give you, which will be a proper legal definition.

       5.      All of the questions and answers are important. No one should say that any question
or answer is not important.


PLAlNTIFF'S THIRD AMI'JNDED PROPOSED JURY JNSTRUCTJONS. J)EFINITJONS, AND QUESTIONS- PAGE 3




                                                                                                  6
       6.      Answer "yes" or "no" to all questions unless you are told otherwise. A "yes"
answer must be based on a preponderance of the evidence. Whenever a question requires an
answer other than "yes" or "no", your answer must be based on a preponderance ofthe evidence.

       The term "preponderance of the evidence" means the greater weight of credible evidence
presented in the case. If you do not find that a preponderance of the evidence supports a "yes"
answer, then answer "no." A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.

        A fact may be established by direct evidence or by circumstantial evidence or both. A fact
is established by direct evidence when proved by documentary evidence or by witnesses who saw
the act done or heard the words spoken. A fact is established by circumstantial evidence when it
may be fairly and reasonably inferred from other facts proved.

       7.     Do not decide who you think should win before you answer the questions and then
just answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.

        8.      Do not answer questions by drawing straws or by any method of chance.

       9.      Some questions might ask you for a dollar amount. Do not agree in advance to
decide on a dollar amount by adding up each juror's amount and then figuring out the average.

       10.    Do not trade your answers. For example, do not say, "I will answer this question
your way if you answer another question my way."

        11.     The answers to the questions must be based on the decision of at least ten of the
twelve jurors. The same tenjurors must agree on every answer. Do not agree to be bound by a vote
of anything less than ten jurors, even if it would be a majority.

       As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would
waste your time and the parties' money, and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.




PLAINTIFF'S THIRD AMENDED PROPOSED ,JURY INSTRUCTIONS, UEFINl T IONS, AND QUESTIONS - PAGE 4




                                                                                                7
 Source:         Texas Pattern Jury Charge 1.3A (2016) (hereinafter "PJe'); PJC 1.8

 Ruling:

 This requested instruction, being duly and timely requested, was:

GIVEN:

REFUSED:

MODIFIED:

DATED:




                                                         Judge Presiding




PLAJNTIFF'S 'I'HJRD AMENDED PROPOSED JURY .INSTRUCTIONS. DEF.INITIONS. AND 0 EST IONS - PAGE. S




                                                                                                  8
 The law requires drivers to give the right-of-way to pedestrians if the pedestrian has a walk signal.
 Failure to comply with this law is negligence in itself.

 Question No.1

        Did the negligence, if any, of Defendant Ramzi Morgan Kelley cause the occurrence in
 question?

          "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.

        "Ordinary care" means that degree of care that would be used by a person of ordinary
        prudence under the same or similar circumstances.

        "Proximate cause" means a cause that was a substantial factor in bringing about an
        occurrence, and without which cause such occurrence would not have occurred. In order to
        be a proximate cause, the act or omission complained of must be such that a person using
        ordinary care would have foreseen that the occurrence, or some similar occurrence, might
        reasonably result therefrom. There may be more than one proximate cause of an
        occurrence.

Answer "Yes" or "No."

Answer: - - - - - -

Source:          PJC 2.1 , 2.4, 4.1, 5.1

Ruling:

This requested instruction, being duly and timely requested, was:

GIVEN:

REFUSED:

MODIFIED:

DATED:




P LA IN11FF'S THIRD AMENDED PROPOSED JURY INSTRUCTIONS, DE FJNJTIONS, AND QUESTIONS- PAGl: 6




                                                                                                     9
 Question No. 2.

       What sum of money, if paid now in cash, would fairly and reasonably compensate
 Cia Babiy for her injuries, if any, that resulted from the occurrence in question?

        Consider the elements of damages listed below and none other. Consider each
 element separately. Do not include damages for one element in any other element. Do not
 include any amount for any condition existing before the occurrence in question, except to
 the extent, if any, that such other condition was aggravated by any injuries that resulted
 from the occurrence in question. Do not include interest on any amount of damages you
 find.

        Answer in dollars and cents, for damages, if any.

a.      Medical care expenses incurred in the past.

        Answer: - - - - - - -

b.      Medical care expenses that, in reasonable probability, Cia Babiy will incur in the
        future.

        Answer: - - - - -- -

c.      Physical impairment sustained in the past.

        Answer: - - - - - - -

d.      Physical impairment that, in reasonable probability, Cia Babiy will incur in the
        future.

        Answer: - - - - - - -

e.      Disfigurement sustained in the past.

        Answer: - - - - - - -

f.     Loss of earning capacity sustained in the past.

       Answer:



PLAINTIFF'S THIRD AMENDED PROPOSED JURY INSTRUCTIONS. DEFINITIONS, AND OUii:STJONS- PAGE 7




                                                                                             10
 g.     Loss of earning capacity that, in reasonable probability, Cia Babiy will sustain in
        the future.

h.      Disfigurement that, in reasonable probability, Cia Babiy will incur in the future .

        Answer: - - -- - - -

1.      Physical pain and suffering sustained in the past.

        Answer: - - -- - - -

j.      Physical pain and suffering that, in reasonable probability, Cia Babiy will sustain in
        the future.

        Answer: - - - - - - -

k.      Mental anguish sustained in the past.

        Answer: - - - - - - -

1.      Mental anguish that, in reasonable probability, Cia Babiy will sustain in the future.

        Answer: - - - - - - -

               Harris County v. Smith, 96 S.W.3d 230 (Tex. 2002) (requiring the separating
               out of distinct damage elements for purposes of factual sufficiency reviews on
               each damage element).

               A number of courts have held that "pain and suffering" and "mental anguish"
               are separate elements of damage. See Daniels v. Univ. of Tex. Health Science
               Center at Tyler, No. 12-03-00399-CV, 2005 WL 1642969 *2 (Tex. App.-Tyler
               July 13, 2005, no pet.) (mem. op.); Dollison v. Hayes, 19 S.W.3d 246, 250-51
               (Tex. App.-Texarkana 2002, no pet.); Southwestern Bell Tele. Co. v.
               Alemania, No. 13-99-021-CV, 2000 WL 35721226 *2 (Tex. App.-Corpus
               Christi June 1, 2000, no pet.) (not designated for publication); Ford Motor Co.
               v. Durrill, 114 S.W.2d 329, 342 (Tex. App.-Corpus Christi 1986), judgmt.
               vacated on other grounds, 154 S.W.2d 646 (Tex. 1988). The Texas Supreme
               Court has acknowledged that physical injuries to the body and mental
               injuries may present distinct and separate harms. See Trinity Universal Ins.
               Co. v. Cowan, 945 S.W.2d 819,826 (Tex. 1997) (concluding that, for insurance


PLAJNTIFF'S 'fEURD AMENDED PROPOSED JURY INSTRUCTIONS. DEH NITJONS, AND QUESTIONS- PAGE 8




                                                                                            11
                 coverage purposes, claim for physical manifestations of mental anguish is not
                 implicitly raised by pleading of mental anguish). 1




                                                         Judge Presiding




         Source:         PJC 28.3, 28.9

        Ruling:

        This requested instruction, being duly and timely requested, was:

GIVEN:

REFUSED:

1 In Ford Motor Co. v. Durrill, tbe trial court permitted physical pain and mental anguish to be
submitted separately. On appeal, Ford argued tbat tbe two elements are "inseparably intertwined"
and tbat tbeir separate submissions "invited tbe jury to award double damages." Durrill, 714
S.W.2d at 342. Tbe Corpus court of appeals, however, approved tbe separate submissions. ld. at
343. Noting tbe trial court's broad discretion in tbe submission of special issues, and tbe fact tbat
tbe damage questions were "prefaced by a limiting instruction wbicb told tbe jury to consider eacb
element of damage separately, and not to include damages for one element in any otber element," tbe
court of appeals beld:

        Tbe survival issue separates into subsections physical pain and suffering and mental
        anguish. Wbile often grouped, we find tbat these two elements are distinguishable
        and not duplicitous. Mental anguish signifies a state of mind wbicb includes
        contemplation by tbe party of tbe disfigured or maimed condition wbicb be is in as a
        result of an injury. Physical pain and suffering connotes tbe physical sensations wben
        injury bas occurred to tbe body. Tbe trial court did not err in submitting tbe issues as
        be did.

ld.; Sharm v. Martinez, 900 S.W.2d 777, 784 (Tex. App.-Corpus Christi 1995, judgm't vacated)
(acknowledging Durrilfs permission of separate awards for pain and suffering and mental anguish);
see also Southwestern Bell, 2000 WL 35721226 at *1 (in addressing sufficiency of evidence to support
$10,000 mental anguish award, noting separate jury findings for mental anguish and past physical
pain).



PLAINTIFF'S TIIJRD AMENilED PROPOSED ,llJRV .INSTRUCTIONS. DEFINITIONS. AND QUESTIONS- J>AGE 9




                                                                                                   12
MODIFIED:       --------



DATED:




                                           Presiding Juror:

        1.     When you go into the jury room to answer the questions, the first thing you will
need to do is choose a presiding juror.

        2.      The presiding juror has these duties:

                a.      have the complete charge read aloud if it will be helpful to your
                        deliberations;

                b.      preside over your deliberations, meaning manage the discussions, and see
                        that you follow these instructions;

                c.      give written questions or comments to the bailiff who will give them to the
                        judge;

                d.      write down the answers you agree on;

                e.      get the signatures for the verdict certificate; and

                f.      notify the bailiff that you have reached a verdict.

Do you understand the duties ofthe presiding juror? If you do not, please tell me now.

                        Instructions for Signing the Verdict Certificate:

       1.      You may answer the questions on a vote of ten jurors. The same ten jurors must
agree on every answer in the charge. This means you may not have one group of ten jurors agree
on one answer and a different group of ten jurors agree on another answer.

       2. If ten jurors agree on every answer, those ten jurors sign the verdict.

       If eleven jurors agree on every answer, those eleven jurors sign the verdict.


PLAINTIFF'S T HIRD AMENDED PROPOSED JU RY l NSTRllCTfONS. DEFJNlTIONS. AND QUESTIONS- PAG'E 10




                                                                                                 13
         If all twelve of you agree on every answer, you are unanimous and only the presiding juror
 signs the verdict.

       3.      All jurors should deliberate on every question. You may end up with all twelve of
you agreeing on some answers, while only ten or eleven of you agree on other answers. But when
you sign the verdict, only those ten who agree on every answer will sign the verdict.

        Do you understand these instructions? If you do not, please tell me now.




                                                       Judge Presiding

                                        Verdict Certificate

Check one:

_ _ _ _ Our verdict is unanimous. All twelve of us have agreed to each and every answer. The
presiding juror has signed the certificate for all twelve of us.



Signature of Presiding Juror                                  Print Name of Presiding Juror

_ _ _ _ Our verdict is not unanimous. Eleven of us have agreed to each and every answer and
have signed the certificate below.

_ _ _ _ Our verdict is not unanimous. Ten of us have agreed to each and every answer and have
signed the certificate below.

               Signature                                              Name Printed

1.

2.

3.

4.

5.
PLAINTIFF'S TIURD AMENDED PROPOSED JURY I NSTRUCTIONS. DEE'INITIONS. AND OUESTJONS- PAGE II




                                                                                              14
 6.

 7.

8.

9.

10.

11.

Source:         PJC 1.3A

Ruling:

This requested instruction, being duly and timely requested, was:



GIVEN:

REFUSED:

MODIFIED:

DATED:




                                                       Judge Presiding




PLAJNTJ.FF'S THrRD AMEND.IID PROPOSED JURY INSTRUCTJONS, DEFINITIONS. AND QUESTIONS- PAG.E 12




                                                                                                15
