                                                                                    ACCEPTED
                                                                             04-014-00494-CV
                                                                    FOURTH COURT OF APPEALS
                                                                         SAN ANTONIO, TEXAS
                                                                          1/30/2015 4:41:33 PM
                                                                                 KEITH HOTTLE
                                                                                        CLERK

                          NO. 04-014-00494-CV
                        _______________________
                                                               FILED IN
                                                        4th COURT OF APPEALS
                                                         SAN ANTONIO, TEXAS
                IN THE FOURTH COURT OF APPEALS          01/30/2015 4:41:33 PM
                       SAN ANTONIO, TEXAS                   KEITH E. HOTTLE
                                                                 Clerk
   ____________________________________________________________

         UNITED PARCEL SERVICE, INC. and ROLAND LEAL

                       Appellants/Cross-Appellees

                                    v.

    ROBERT SCOTT RANKIN, Individually; RACHELLE RANKIN,
  Individually and as Next Friend for AVERY RANKIN, a Minor; as Next
  Friend for KARA RANKIN, a Minor; and as Next Friend for SAMUEL
                            RANKIN, a Minor

                     Appellees/Cross-Appellants
   ____________________________________________________________

     On Appeal from the 224th Judicial District Court, Bexar County, Texas
                  Honorable Cathy Stryker, Presiding Judge
                   Trial Court Cause No. 2011-CI-07922
__________________________________________________________________

                          APPELLEES’ BRIEF
             Respectfully submitted,

             Doug Perrin
             State Bar No. 15796520
             J. Mark Perrin
             State Bar No. 24013313
             THE PERRIN LAW FIRM
             1910 Pacific Avenue, Suite 6050
             Dallas, Texas 75201
             Phone:      (214) 646-2004
             Facsimile: (214) 646-6117
             Email: dougperrin@perrinlaw.org
                    markperrin@perrinlaw.org

             Peter Marketos
             State Bar No. 24013101
             REESE GORDON MARKETOS
             750 N. St. Paul Street, Suite 610
             Dallas, Texas 75201
             Telephone: (214) 382-9810
             Facsimile: (214) 501-0731
             Email: pete.marketos@rgmfirm.com

             Byron Keeling
             State Bar No. 11157980
             KEELING & DOWNES, P.C.
             1500 McGowen Street
             Houston, Texas 77004
             Telephone: (832) 214-9900
             Fax: (832) 214-9908
             Email: bck@keelingdownes.com

             ATTORNEYS FOR APPELLEES




ORAL ARGUMENT REQUESTED
                 IDENTITY OF PARTIES AND COUNSEL

Appellees/Plaintiffs:             Scott Rankin
                                  Rachelle Rankin
                                  Avery Rankin
                                  Kara Rankin
                                  Samuel Rankin

Trial and Appellate Counsel for   Doug Perrin
Appellees/Plaintiffs:             State Bar No. 15796520
                                  J. Mark Perrin
                                  State Bar No. 24013313
                                  THE PERRIN LAW FIRM
                                  1910 Pacific Avenue, Suite 6050
                                  Dallas, Texas 75201
                                  Phone:      (214) 646-2004
                                  Facsimile: (214) 646-6117
                                  Email: dougperrin@perrinlaw.org
                                         markperrin@perrinlaw.org

                                  Peter Marketos
                                  State Bar No. 24013101
                                  REESE GORDON MARKETOS
                                  750 N. St. Paul Street, Suite 610
                                  Dallas, Texas 75201
                                  Telephone: (214) 382-9810
                                  Facsimile: (214) 501-0731
                                  Email: pete.marketos@rgmfirm.com

                                  Byron Keeling
                                  State Bar No. 11157980
                                  KEELING & DOWNES, P.C.
                                  1500 McGowen Street
                                  Houston, Texas 77004
                                  Telephone: (832) 214-9900
                                  Fax: (832) 214-9908
                                  Email: bck@keelingdownes.com


                                    i
Appellants/Defendants:            United Parcel Service, Inc.
                                  Roland Leal

Trial and Appellate Counsel for   H. Victor Thomas
Appellants/Defendants:            KING & SPALDING
                                  Texas Bar No. 19851500
                                  1100 Louisiana, Suite 4000
                                  Houston, Texas 77002
                                  Telephone: (713) 751-3200
                                  Facsimile: (713) 751-3290
                                  Email: Vthomas@KSLAW.com

                                  W. Randall Bassett
                                  Georgia Bar No. 41525
                                  Bradley W. Pratt
                                  Georgia Bar No. 586672
                                  KING & SPALDING LLP
                                  1180 Peachtree Street, N.E.
                                  Atlanta, Georgia 30309
                                  Telephone: (404) 572-4600
                                  Facsimile: (404) 572-5100
                                  Email: Rbassett@KSLAW.com
                                         Bpratt@KSLAW.com

                                  Ricardo Reyna
                                  State Bar No. 16794845
                                  Audrey Haake
                                  State Bar No. 08658100
                                  BROCK, PERSON, GUERRA, REYNA
                                  17339 Redland Road
                                  San Antonio, Texas 78247
                                  Telephone: (210) 979-0100
                                  Facsimile: (210) 979-7810
                                  Email: rreyna@bpgrlaw.com
                                         ahaake@bpgrlaw.com




                                    ii
                                       TABLE OF CONTENTS

                                                                                       Page
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

I.      STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.     STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . 2

III.    STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV.     SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

V.      ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

        A.       The Trial Court correctly submitted the Rankins'
                 negligence per se claim to the jury . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

                 1.       Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

                 2.       Question 1 was properly submitted to the jury . . . . . . . . . . . . . 11

                          a.       Question 1 tracks Texas case law and the
                                   Texas Pattern Jury Charge . . . . . . . . . . . . . . . . . . . . . . .12

                          b.       Question 1 is a question of fact, not a question of law . . 14

                 3.       Words used in their ordinary meaning do not
                          need to be defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

                 4.       UPS has waived this point of error and/or is barred
                          from raising it under the doctrine of invited error . . . . . . . . . . 16

                          a.       UPS invited error on the submission of Question 1 . . . . 16

                                                         iii
              b.       UPS waived its argument, or invited error, as to
                       the trial court not defining words
                       in the statute for the jury . . . . . . . . . . . . . . . . . . . . . . . . . .16

     5.       Any error is harmless because the jury's answer to
              Question 1 is supported by the evidence and is
              correct under Texas law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

B.   The evidence is legally and factually sufficient to support
     the jury's verdict on their negligence per se claim . . . . . . . . . . . . . . . . 25

     1.       "Residences" refers only to the residences on the property . . . . 25

     2.       The evidence is more than sufficient to support the
              jury's finding that 109 Ranger Creek Road
              is outside a residence district . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

     3.       In the alternative, even if the Trial Court erred in
              submitting the Rankins' negligence per se claim
              to the jury, it is not reversible error . . . . . . . . . . . . . . . . . . . . . . 29

C.   The Trial Court correctly admitted the Affidavit of Lori
     Carroll and correctly excluded portions of the testimony
     of Sergeant Allison and Megan McGehee . . . . . . . . . . . . . . . . . . . . . . 32

     1.       The Affidavit of Lori Carroll was not hearsay
              and was properly admitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

     2.       The excluded testimony of Sergeant Allison was
              irrelevant and without any basis in law or fact,
              and was properly excluded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

     3.       The excluded testimony of Megan McGehee was
              irrelevant and duplicative, and was properly excluded . . . . . . . 40

D.   The Rankins' counsel made no judicial admission
     during closing argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41


                                            iv
        E.       The evidence is legally and factually sufficient to support
                 the jury's verdict that the negligence of UPS's driver,
                 Roland Leal, proximately caused the occurrence . . . . . . . . . . . . . . . . . 43

        F.       The jury's verdict that Scott Rankin was 50% responsible
                 is the consummate jury question and is supported by
                 legally and factually sufficient evidence . . . . . . . . . . . . . . . . . . . . . . . . .53

        G.       The Trial Court correctly denied UPS's Motion for Directed
                 Verdict and correctly refused to instruct the jury regarding the
                 alleged effect of compliance with applicable parking laws . . . . . . . . 54

VI.     PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58




                                                           v
                                   INDEX OF AUTHORITIES

                                                                                                      Page(s)
CASES:

Texas Cases
Ambrosio v. Carter's Shooting Ctr., Inc.,
     20 S.W.3d 262 (Tex. App.-Houston [14th District] 2000 pet. denied) . . 50, 51

Bell v. Campbell,
       434 S.W.2d 117 (Tex. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 52, 53

Bluestar Energy, Inc. v. Murphy,
      205 S.W.3d 96 (Tex. App.-Eastland 2006, pet. denied) . . . . . . . .16, 18, 27, 44

Borden, Inc. v. Price,
     939 S.W.2d 247 (Tex. App.-Amarillo 1997, writ denied) . . . . . . . . . . . . . . . 12

Brandywood Hous., Ltd. v. Texas Dep't of Transp.,
     74 S.W.3d 421 (Tex. App.-Houston [1st Dist.] 2001, pet. denied) . . 17, 18, 27

Brune v. Brown Forman Corp.
     758 S.W.2d 827 (Tex. App.-Corpus Christi 1988, writ denied) . . . . . . . . . . .20

Callahan v. Vitesse Aviation Servs., LLC,
      397 S.W.3d 342 (Tex. App.-Dallas 2013, no pet.) . . . . . . . . . . . . . . . . . . . . . 12

Carter v. William Sommerville and Son, Inc.,
      584 S.W.2d 274 (Tex. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Castleberry v. Branscum,
      721 S.W.2d 270 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

City of Keller v. Wilson,
       168 S.W.3d 802 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

City of Rockwall v. Hughes,
       246 S.W.3d 621 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

                                                       vi
Clark v. Waggoner,
      452 S.W.2d 437 (Tex. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44

Eagle Trucking Co. v. Texas Bitulithic Co.,
      612 S.W.2d 503 (Tex. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Exxon Pipeline Co. v. Zwahr,
     88 S.W.3d 623 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Grohman v. Kahlig,
     318 S.W.3d 882 (Tex. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Helena Chem. Co. v. Wilkins,
     47 S.W.3d 486 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Homeland Express, LLC v. Seale,
     420 S.W.3d 145 (Tex. App. - El Paso 2012, no writ) . . . . . . . . . . . . . . . 44, 52

Larson v. Cactus Util. Co.,
     730 S.W.2d 640 (Tex. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53

Lawrence v. City of Wichita Falls,
     122 S.W.3d 322 (Tex. App. - Fort Worth 2003, pet. denied) . . . . . . . . . . . . . 46

Lear Siegler, Inc. v. Perez,
      819 S.W.2d 470 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 52, 53

Montes v. Pendergrass,
     61 S.W.3d 505 (Tex. App. - San Antonio 2001, no pet.) . . . . . . . . . . . . 46, 47

Mooneyhan v. Benedict,
     284 S.W.2d 741 (Tex. App.-Austin 1955, no writ) . . . . . . . . . . . . . . . . . . . . 28

Moore v. Brunswick Bowling & Billiards Corp.,
     853 S.W.2d 842 (Tex. App.-Houston [1st Dist.] 1993),
     rev'd on other grounds, 889 S.W.2d 246 (Tex. 1994). . . . . . . . . . . . . . . . . 55



                                                      vii
Moughon v. Wolf,
    576 S.W.2d 603 (Tex. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 13

Nixon v. Mr. Prop. Mgmt.,
      690 S.W.2d 546 (Tex. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Operation Rescue-National v. Planned Parenthood of Houston,
     975 S.W.2d 546 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Owens Corning v. Carter,
     997 S.W.2d 560 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 24

Perry v. S.N.,
      973 S.W.2d 301 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Pool v. Ford Motor Co.,
      715 S.W.2d 629 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Rodriguez v. Moerbe,
      963 S.W.2d 808 (Tex. App. - San Antonio 1998). . . . . . . . . . . . . . . . . . . 44, 48

Romero v. KPH Consolidation, Inc.,
     166 S.W.3d 212 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31, 32

Saenz v. David & David Constr. Co.,
      52 S.W.3d 807 (Tex. App.—San Antonio 2001, pet. denied) . . . . . . . . . . . . .11

Southwestern Bell Tel. Co. v. Hertz Equip. Rental Co.,
     533 S.W.2d 853 (Tex. App. - Fort Worth 1976, writ ref'd n.r.e.) . . . . . . . . . 49

Spradlin v. State,
      100 S.W.3d 372 (Tex. App.-Houston [1st Dist.] 2002, no pet.) . . . . . . . . . . . .41

Strother v. City of Rockwall,
      358 S.W.2d 462 (Tex. App.-Dallas 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . .35

Texaco, Inc. v. Pennzoil Co.,
     729 S.W.2d 768 (Tex. App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.) . . . . 15

                                                     viii
Texas Mut. Ins. Co. v. Morris,
      287 S.W.3d 401 (Tex. App.-Houston [14th Dist.] 2009),
      rev'd on other grounds, 383 S.W.3d 146 (Tex. 2012). . . . . . . . . . . . . . . . . 32

Travis v. City of Mesquite,
      830 S.W.2d 94 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Turner v. Cruz,
     2010 Tex. App. LEXIS 10216
     (Tex. App.-San Antonio Dec. 29, 2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . .49

Union Pump Co. v. Allbritton,
     898 S.W.2d 773 (Tex. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . 47, 50, 51, 52, 53

Waste Mgmt. of Tex. Inc. v. Texas Disposal Sys. Landfill, Inc.,
     434 S.W.3d 142 (Tex. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 36, 40

Out-of-State Cases:
Baker v. Court of Special Sessions,
      15 A.2d 102 (N.J. 1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Bowling Green-Hopkinsville Bus Co. v. Adams,
     261 S.W.2d 14 (Ky. 1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Gordon v. Cozart,
     110 So.2d 75 (Fla. App. 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Marshall v. Mullin,
     320 P.2d 258 (Ore. 1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

McGill v. Baumgart,
     288 N.W. 799 (Wis. 1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Minton v. Gobble,
     304 S.W.2d 337 (Tenn. App. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

State v. Bastian,
       78 N.J. Super. 49 (Cty. Ct. 1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23


                                                        ix
State v. Mundy,
       273 A.2d 620 (N.J. County Ct. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

State v. Zeus,
       56 N.J. Super. 323 (Cty. Ct. 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Thoms v. Dowdy,
     112 S.E.2d 868 (Va. 1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

STATUTES, RULES & OTHER AUTHORITIES

TEX. PROP. CODE. ANN. § 27.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TEX. PROP. CODE. ANN. § 27.0042 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23, 24

TEX. TAX CODE. ANN. § 11.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

TEX. TRANSP. CODE § 541.102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 25, 33, 37

TEX. TRANSP. CODE § 545.301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 20

TEX. R. APP. P. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

TEX. R. APP. P. 39.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TEX. R. APP. P. 44.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 40, 41

TEX. R. CIV. P. 166a(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

TEX. R. CIV. P. 278 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 30

TEX. R. EVID. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 41

TEX. R. EVID. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39, 41

TEX. R. EVID. 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

TEX. R. EVID. 703 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

                                                            x
TEX. R. EVID. 803(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 33, 34

BLACK’S LAW DICTIONARY 907 (abridged 6th ed. 1991) . . . . . . . . . . . . . . . . . . . . . .24

MERRIAM-WEBSTER’S DICTIONARY AND THESAURUS 824 (2006) . . . . . . . . . . . . . 20

Restatement (Second), Torts, § 288c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 55

Texas Pattern Jury Charge 5.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39




                                                        xi
TO THE HONORABLE COURT:

      COME NOW, Appellees, Robert Scott Rankin, individually, Rachelle

Rankin, individually and as next friend for Avery Rankin, a minor, as next friend for

Kara Rankin, a minor, and as next friend for Samuel Rankin, a minor, (collectively

referred to as “the Rankins”) in the above-styled and numbered cause, and file this

Appellees’ Brief and in support thereof would respectfully show as follows:

                        I. STATEMENT OF THE CASE

Nature of case:    This is a suit for damages arising out of a collision between
                   Robert Scott Rankin (“Mr. Rankin”), who was riding a bicycle,
                   and a United Parcel Service, Inc. (“UPS”) truck driven by Roland
                   Leal (“Mr. Leal”) (collectively referred to herein as “UPS”).
                   (CR1:101). The collision took place on a rural road outside of
                   Boerne, Texas and resulted in devastating injuries to Mr. Rankin,
                   including permanent incomplete quadriplegia. (CR1:101-104;
                   RR8:15-18). Mr. Rankin and his wife, Rachelle, have three
                   beautiful, young children who were seven, four, and fifteen
                   months at the time of this accident. (RR6:10-11). Mr. Rankin
                   was a successful band director and designer of band halftime
                   shows – a job he will never be able to do again. (RR6:148-155).
                   He will never again be able to be the same husband to his wife,
                   and he will never again be able to play with his children the way
                   a man his age ought to be able to play with children the ages of
                   Avery, Kara, and Samuel. (RR6:39-41, 187).

Proceedings:       The case was tried to a jury in the 224th Judicial District Court
                   in Bexar County, Texas. The jury was charged on the Rankins’
                   causes of action for negligence per se, based on evidence that the
                   truck was stopped, parked, or standing partially on the roadway
                   outside a residence district at the time of the collision in violation
                   of the Texas Transportation Code, and general negligence,
                   because of evidence Mr. Leal breached his duty of ordinary care.
                   (CR2:191-206). The jury, after deliberating over all or part of
                   five different days, returned a verdict finding that Mr. Leal was
                                      Page 1 of 58
                      negligent and negligent per se, awarding $9,361,000.00 to the
                      Rankins, subject to a proportionate responsibility finding that
                      Mr. Rankin was 50% responsible for the collision. (CR2:191-
                      206). UPS stipulated to its vicarious liability for the acts and
                      omissions of Mr. Leal. (CR1:3; RR10:10-11). UPS also
                      stipulated to the proper amount of the bulk of the Rankins’
                      damages. (RR8:83). On April 16, 2014, the trial court entered a
                      Final Judgment in favor of the Rankins in the amount of
                      $5,509,230.33. (CR2:247-251). The Final Judgment included
                      an award of $685,620.50 in attorneys’ fees, to which the Rankins
                      were entitled pursuant to the offer of settlement provisions in the
                      Texas Civil Practice and Remedies Code and the Texas Rules of
                      Civil Procedure. (CR2:249).

              II. STATEMENT REGARDING ORAL ARGUMENT

       Pursuant to Texas Rule of Appellate Procedure 39.1, Appellees request oral

argument and submit that it would materially aid the decisional process in this case.

                             III. STATEMENT OF FACTS

       On July 15, 2009, Mr. Rankin was riding his bicycle on Ranger Creek Road

in Kendall County, Texas when he collided with a UPS truck illegally stopped,

parked, or standing in the roadway. (CR2:194-196). Mr. Rankin was an experienced

bicycle rider who testified as to his pattern and practice when riding and his

experience in the Texas heat.1 (RR6:155-159, 163-164, 170-173). Mr. Rankin had




1
 Unfortunately, due to the devastating injuries suffered by Mr. Rankin in the collision, he does
not have any memory of the events immediately preceding the collision, the collision itself, or the
events immediately following the collision. (RR6:167, 174-177).


                                           Page 2 of 58
often taken the very route he took on July 15, 2009, and he was very familiar with

it. (RR6:162-163, 166).

       Mr. Rankin had taken a shorter bicycle ride earlier in the day, but did not feel

he was physically impaired in any way when he departed on his fateful second ride

on July 15, 2009. 2 (RR6:198). Appellants’ Brief argues that “[a]ccording to Mrs.

Rankin, when her husband returned home from his first ride, he experienced heat

exhaustion and actually vomited.”3 (Appellants’ Brief at 20.) This is, at best, a

serious mischaracterization of the evidence at trial. The woman who lived at 109

Ranger Creek Road, Megan McGehee, testified in a portion of her deposition that

was played for the jury that she remembered Mrs. Rankin saying that to her in a

telephone call sometime after the accident.                 (RR8:160-161).         Mrs. Rankin

specifically and explicitly denied that Mr. Rankin vomited on July 15, 2009 and

denied making any such statement to Ms. McGehee. (RR6:48, 58, 116). In addition,

one of UPS’s experts who examined the medical records of Mr. Rankin, including

diagnostic imaging of his brain, testified that there was no medical evidence in those

records of any heat exhaustion or heat stroke. (RR8:246-247).



2
 Mr. Rankin did not even consider his first excursion on a bike that day a ride, referring to is as
an “errand.” (RR6:155).
3
  UPS also makes reference to Mr. Rankin lying down in the entryway of the Rankins’ home when
he returned home from his first ride. Mr. Rankin explained that was something he learned in drum
corps as a way to quickly bring down his body temperature and regulate his heart rate, as opposed
to some evidence of a dramatic event. (RR6:164-165).
                                           Page 3 of 58
       Mr. Leal was an employee of UPS who was operating the UPS truck and

making a delivery to the residence located at 109 Ranger Creek Road for his

employer. (RR5:46-47). UPS contends that the view of the truck was unobstructed

for more than 2,000 feet, but the jury saw video and photographic evidence and heard

testimony to the contrary. 4 (RR5:167-70, RR6:171-173; RR13:15-23 (Plaintiffs’

Exhibits 1AA-1EE), 29 (Plaintiffs’ Exhibit 1HH), 47 (Plaintiffs’ Exhibit 1T), 56

(Plaintiffs’ Exhibit 1Z); Plaintiffs’ Exhibits 22 & 29 (admitted for demonstrative

purposes); RR18:91-94 (Defendants’ Exhibits 144E-144H)). What the jury saw was

a brown truck under a brown tree near brown grass with a brown hill framing the

background. (RR.18:91-94). According to his testimony, Mr. Leal left the UPS

truck parked in the main-traveled portion of the roadway where it was blocking part

of the eastbound traffic lane while he exited the vehicle to make his delivery.

(RR5:62-63). 5

       At trial, the jury heard at least six different versions of how the incident

occurred according to Mr. Leal. In some versions he was in the truck when the


4
  The truck shown in UPS’s pictures is not the truck that was involved in the accident. UPS never
photographed or produced for inspection the truck involved in the accident, going so far as to not
even allow its own experts to view it despite the fact that it was located in the San Antonio facility
the entire time. (RR8:233-234; RR9:16-17, 30-34, 157-158. The Rankins seriously doubt the
truck involved in the accident had the metal strip on the back shown in the pictures, and there was
no evidence introduced that it did. The vast majority of UPS trucks do not.
5
 Mr. Leal testified that the difference between an “incident,” for which he would not receive any
punishment, and an “accident,” for which he would, was whether his UPS truck was in motion.
(RR5:68-69).
                                            Page 4 of 58
collision occurred, and in some versions he was not. (RR5:64-68, 69-73, 73-77, 89-

90). In some versions the key was in the ignition when the collision occurred, and

in some versions it was not. (RR5:73-77, 89-90). In some versions the truck was

running, and in some versions it was not. (RR5:86-87, 89-90). In some versions he

first saw Mr. Rankin when he walked to the back of the truck, and in some he first

saw Mr. Rankin in the truck’s rear view camera. (RR5:69-73, 89-90). In one version

Mr. Leal pulled the truck forward before seeing Mr. Rankin lying crumpled behind

him. (RR6:125-126). In some versions Mr. Leal initially thought that the sound of

Mr. Rankin colliding with the truck was the sound of the transmission falling out of

his truck. (RR5:85-87, 89-90).

      Mr. Leal had several options to park the UPS truck off the roadway and in a

safe manner. (RR5:224-228, 265-266; RR13:18, 26, 39, 45, 54, 147). In an early

deposition, Mr. Leal testified that he never parked in the driveway at 109 Ranger

Creek Road when making deliveries there. (RR5:104-106). After the owner of the

house at the time of this incident testified that Mr. Leal did, in fact, park in the

driveway from time to time, Mr. Leal conceded at trial that the earlier testimony was

incorrect and that he had done so in the past. (RR5:106-108). Mr. Leal agreed at

trial that parking the truck off of the roadway was practical, and that he physically

could have done so. (RR5:96-98, 175). He chose, however, to leave the vehicle in

the roadway, either while he made his delivery or after making it while leaving the


                                     Page 5 of 58
location in which he parked. The location of the truck at the time law enforcement

arrived is known because the location of the tires was marked with spray paint on

the highway by them. (RR5:100-101, 221-224; RR8:133). Mr. Leal’s testimony as

to why he chose that spot was that it was the fastest spot with the most direct line to

the front door of 109 Ranger Creek Road, and it was the spot that best protected his

truck from damage. 6 (RR5:101, 104, 108-109). Mr. Leal acknowledged that the

safer place to be as to other users of the roadway, as opposed to UPS’s property, was

entirely off the roadway. (RR5:104, 175-176).

       The facts at the trial of this case were hotly contested and heavily disputed,

but four vital facts were not: (1) the UPS truck was located partially on the main

traveled portion of a roadway with a speed limit of 45 miles per hour when Mr.

Rankin collided with it (RR5:59-60, 62-63); (2) Mr. Rankin was riding his bicycle

on the roadway when the collision occurred (RR5:88); (3) the collision would not

have occurred if the UPS truck had not been located on the main-traveled portion of

the roadway (RR9:155-156); and (4) the collision caused Mr. Rankin’s catastrophic

and permanent spinal cord injury, resulting in permanent incomplete quadriplegia

(RR8:15-17). The jury, after serious and deliberate consideration over parts or all

of five days, combed through the evidence, decided which portions to believe and


6
  Mr. Leal testified that if his truck was damaged during his route it was his responsibility.
(RR5:109). Mr. Leal and UPS’s corporate representative further testified that a UPS driver can be
punished if his deliveries take too long, potentially including termination. (RR5:35; RR7:22).
                                          Page 6 of 58
disbelieve, and ultimately entered a verdict that Mr. Leal was negligent and negligent

per se and that Mr. Leal and Mr. Rankin were both 50% responsible for the incident.

(CR2:191-206).

                       IV. SUMMARY OF ARGUMENT

      The Honorable Cathy Stryker conducted a fair, unbiased trial. Each side was

permitted to present its proper evidence and argue its side vigorously. The trial court

excluded proffered evidence and testimony from both sides. The jury heard and saw

significant amounts of conflicting evidence. UPS’s Brief seems to contend that the

evidence cited by it was the only evidence heard or seen by the jury, but that is not

the case. The jury considered all the evidence it had received, determined what

evidence was credible and what evidence was not, and entered a reasonable verdict.

The Rankins understand that UPS is surprised and disappointed that it lost. But UPS

has presented this Court with no reversible error. The parties were allowed an

imminently fair trial, the jury did its job with incredible seriousness and

determination, and the verdict and judgment are well-supported by the evidence and

Texas law. The civil justice system worked exactly as it is supposed to work. This

Court should not disturb the verdict or judgment and the result at the trial court must

be affirmed.

      The determination of whether the UPS truck was located outside a “residence

district” required the jury to resolve multiple questions of fact, and it was therefore


                                      Page 7 of 58
properly submitted to the jury. The submission of Question 1 to the jury on that

issue is consistent with decades of Texas case law and tracked the Texas Pattern Jury

Charge. The jury’s answer to Question 1, that the UPS truck was outside a

“residence district” at the time of the accident, was correct and is supported by the

evidence admitted at trial and Texas law. Among other pieces of evidence, Mr. Leal

himself admitted that the area around 109 Ranger Creek Road was a “country road,”

that 109 Ranger Creek Road did not have a “real close by” next door neighbor, and

that at the time of the accident there was not much development around 109 Ranger

Creek Road. UPS’s own report referred to the area as “rural.” Moreover, not only

did UPS not request the trial court to do what it now claims the trial court should

have done, it actively argued against the trial court doing so.

      The jury’s finding on proportionate responsibility cannot be disturbed on

appeal, whether or not the Rankins’ negligence per se questions were properly

submitted to the jury. The jury found that both Mr. Leal and Mr. Rankin were

negligent and, therefore, each bore responsibility for the accident. Whether viewed

through the prism of negligence per se or negligence, the negligent acts committed

by him are the same. The jury was not piling one act on top of another or considering

different levels of intent in reaching its proportionate responsibility finding. The

jury determined who bore what portion of responsibility for the accident based on

negligence. That determination is uniquely a jury function and must be affirmed.


                                      Page 8 of 58
      The trial court’s evidentiary rulings were correct. The Affidavit of Lori

Carroll explicitly falls within Texas Rule of Evidence 803(8), states within its body

the fact UPS wanted to convey to the jury, and cannot reasonably be questioned as

to accuracy. The excluded testimony of Sergeant Allison was pure speculation

without any basis in fact or law, as admitted by him, and Sergeant Allison was not

qualified to testify on the topic that was excluded. But in any event, UPS was able

to introduce evidence that contained equivalent information to the testimony that

was excluded. The excluded testimony of Megan McGehee was duplicative of other

evidence before the jury, and sought to re-establish a previously established fact that

was not disputed by anyone in the lawsuit. That testimony was entirely irrelevant

and duplicative and its exclusion was not error.

      The Rankins’ counsel argued in the alternative the jury. This is and always

has been allowed in Texas, and can in no way constitute a judicial admission.

      Determination of proximate cause is uniquely an issue for the jury. The trial

court, who heard and saw all of the evidence in the case, obviously did not agree that

the evidence was insufficient, as the trial court submitted the issue to the jury and

overruled UPS’s motion for new trial. Contrary to UPS’s implication, there was

significant evidence that conflicted with UPS’s version of events. UPS’s witnesses

agreed that the accident would not have occurred had the UPS truck been entirely

off the roadway as required, there was conflicting evidence on when or how Mr.


                                      Page 9 of 58
Rankin should have seen the truck, and there was significant evidence to support

foreseeability. The jury determined which evidence was credible and probative, and

which was not, and determined that fact issue based on its deliberations.

      Determination of proportionate responsibility is the consummate fact question

for the jury. UPS again invites this Court to substitute its judgment for that of the

jury, which this Court cannot do. The jury heard all of the conflicting evidence and

determined that Mr. Leal and Mr. Rankin were each 50% responsible. That finding

is reasonable and supported by the evidence and, therefore, must be affirmed.

                                   V. ARGUMENT

A.    The Trial Court correctly submitted the Rankins’ negligence per se claim
      to the jury.

      UPS argues that the trial court erred in submitting Question 1 to the jury.

Question 1 asked the jury to decide if the UPS truck was stopped, parked, or standing

outside of a “residence district” at the time of the accident, and gave the statutory

definition of a “residence district.” (CR2:194). According to UPS, the trial court

should have “construed the statute, and determined whether 109 Ranger Creek Road

was within a ‘residence district.’” (Appellants’ Brief at 32). UPS assigns error to

the trial court for failing to provide the jury with “definitions for the most significant

terms in the statute.” (Appellants’ Brief at 29). UPS’s argument lacks merit. The

trial court’s determination to submit Question 1 to the jury was correct, the jury’s

answer to Question 1 is supported by the evidence, the trial court did not need to
                                       Page 10 of 58
define terms used in their ordinary meaning, the jury’s answer to Question 1 is

correct under Texas law, and UPS has waived its argument and is barred from raising

it under the doctrine of invited error.

      1.     Standard of Review

      As an initial matter, UPS contends that the standard of review for this Court

is de novo. The case cited by UPS, however, has nothing to do with a trial court’s

submission of a question to the jury, but rather with whether a trial court correctly

construed a statute. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.

2008). As with every other case dealing with a trial court’s determination as to the

contents of a jury charge, UPS’s point of error is properly reviewed under an abuse

of discretion standard, not de novo. See, e.g., Saenz v. David & David Constr. Co.,

52 S.W.3d 807, 809 (Tex. App.—San Antonio 2001, pet. denied). Therefore, UPS’s

point of error can be sustained only if it shows that the trial court acted arbitrarily or

without reference to any guiding principles. Id. UPS has not done so.

      2.     Question 1 was properly submitted to the jury.

      Negligence per se is the tort concept by which civil courts adopt a legislatively

defined standard of conduct as the conduct of a reasonably prudent person. See

Moughon v. Wolf, 576 S.W.2d 603, 604 (Tex. 1978). To prevail on a negligence per

se claim, a plaintiff must show that the defendant’s conduct violated the applicable

standard of conduct and was a proximate cause of the plaintiff’s injuries. See id.;


                                       Page 11 of 58
Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 549 (Tex. 1985). As the Texas Supreme

Court has noted, “the overwhelming majority of this Court’s negligence per se cases

have involved violations of traffic statutes by drivers and train operators.” Perry v.

S.N., 973 S.W.2d 301, 306 (Tex. 1998).

             a.    Question 1 tracks Texas case law and the Texas Pattern Jury
                   Charge.

      Whether UPS committed an unexcused violation of Section 545.301 of the

Texas Transportation Code and whether the statutory violation, if any, was a

proximate cause of the Rankins’ injuries and damages were questions of fact for the

jury. Such questions have always been submitted to juries in Texas. See, e.g., Carter

v. William Sommerville and Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979); Moughon

v. Wolf, 576 S.W.2d 603, 604 & n.3 (Tex. 1978); Callahan v. Vitesse Aviation

Services, LLC, 397 S.W.3d 342, 356-57 (Tex. App.—Dallas 2013, no pet.); Borden,

Inc. v. Price, 939 S.W.2d 247, 250 (Tex. App.—Amarillo 1997, writ denied). In the

context of a negligence per se claim arising from an alleged violation of a traffic

statute, the Texas Supreme Court stated in 1978 that “[t]he typical submission of

such a case includes an issue inquiring whether the party charged is actually guilty

of legislatively proscribed conduct along with an issue inquiring whether the

violative conduct was the proximate cause of the accident.” Moughon v. Wolf, 576

S.W.2d 603, 604 (Tex. 1978).



                                     Page 12 of 58
      The Texas Pattern Jury Charge likewise makes it clear that the trial court

correctly submitted Question 1 to the jury. Pattern Jury Charge 5.1 is to be used in

situations in which general negligence and negligence per se are alleged. As

instructed in the comments to PJC 5.1, in situations in which there is “genuine

uncertainty whether the violation constitutes negligence per se . . . it would be better

to submit both a separate question asking if the statutory conduct was committed and

a broad-form question accompanied by an instruction that excludes consideration of

the statutory conduct.” PJC 5.1 cmt (“If uncertain whether violation is negligence

per se”). That is exactly what was done here.

      In Question 1, the jury was asked if the statutory conduct was committed, i.e.,

if the truck was stopped, parked, or standing outside a residence district at the time

of the accident. 7 (CR2:194). As directed by the Texas Supreme Court and the Texas

Pattern Jury Charge, this question asked the jury if the statutory conduct had been

committed. Moughon, 576 S.W.2d at 604; PJC 5.1, cmt (“If uncertain whether

violation is negligence per se”). Question 2 then set forth the defenses to the

statutory conduct and inquired as to negligence and proximate cause as to both Mr.

Leal and Mr. Rankin. (CR2:195). Question 3 was the broad-form question on




7
  There was no need to ask the jury whether the truck was “on the main traveled part of the
highway” as that fact was not disputed and UPS does not complain of that omission. See TEX.
TRANSP. CODE ANN. § 545.301(a).


                                       Page 13 of 58
general negligence with an instruction that excluded consideration of the statutory

conduct. (CR2:195); PJC 5.1, cmt (“If uncertain whether violation is negligence per

se”). Negligence and negligence per se were properly submitted to the jury in

accordance with longstanding Texas jurisprudence and the Texas Pattern Jury

Charge.

               b.     Question 1 is a question of fact, not a question of law.

       UPS contends that Question 1 was a pure question of law and that, therefore,

Question 1 was improperly submitted to the jury. 8 That is simply not correct. The

jury had to resolve whether 109 Ranger Creek Road was “outside a residence

district”—i.e., not in a residence district. A court may not take judicial notice of

whether a highway lies inside or outside a residence district. See Eagle Trucking

Co. v. Texas Bitulithic Co., 612 S.W.2d 503, 506 (Tex. 1981) (considering prior

version). Because a court may not resolve that question by judicial notice, the trial

court here did not err in submitting that question to the jury to resolve any dispute

of fact as to whether 300 feet of the highway frontage was primarily improved with

residences or buildings used for business purposes and residences. The jury, based

on the evidence before it, reasonably determined that the section of Ranger Creek

Road in question is outside a residence district.


8
 At trial the thrust of UPS’s argument was that Question 1 should not be submitted because the
evidence was uncontroverted and that, therefore, it was a question of law for the Court. (CR2:145).
On appeal, that argument has morphed into an argument that Question 1 is a purely legal issue.
                                           Page 14 of 58
      In addition, the jury had to decide whether the truck was “stopped, parked, or

standing” at the time of the incident in order to answer Question 1. (CR2:195). The

Rankins suggested to the jury as one alternative basis for recovery that the truck

could have been in motion at the time of the collision. Whether Mr. Leal was parked

the entire time, had been in motion just prior to the collision and was stopped at the

time of the collision before transitioning to move forward, or was in motion at the

time of the collision was a disputed fact. Question 1 required the jury to resolve

these disputed facts based on the evidence before it and as such was a question of

fact properly submitted to the jury. See, e.g., Castleberry v. Branscum, 721 S.W.2d

270, 277 (Tex. 1986). Absent extraordinary circumstances, fact questions are to be

decided by the jury, as they were here. Id.

      3.     Words used in their ordinary meaning do not need to be defined.

      On appeal, UPS argues that the trial court’s failure to instruct the jury on the

meaning of “residence,” “highway frontage,” “adjacent to,” “primarily improved,”

and other terms in the statute was error. This is incorrect, as a trial court need not

define terms that are used in their ordinary meaning. See, e.g., Texaco, Inc. v.

Pennzoil Co., 729 S.W.2d 768, 814 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d

n.r.e.) (jurors are presumed to have average intelligence so that the court “is not

required to convert the charge into a dictionary.”). In these sections of the Texas

Transportation Code, the Legislature saw fit to define some terms and to not define


                                     Page 15 of 58
others. The only conclusion that can be drawn from that is that the undefined terms

are used in their ordinary meaning. Owens Corning v. Carter, 997 S.W.2d 560, 571

(Tex. 1999). As such, the trial court did not err in failing to define the terms.

      4.     UPS has waived this point of error and/or is barred from raising it
             under the doctrine of invited error.

             a.     UPS invited error on the submission of Question 1.

      During argument regarding submission of the Rankins’ negligence per se

cause of action to the jury, counsel for UPS stated that “if they want to argue to the

jury in closing that the statute should be interpreted their way, they are free to do

that under the statutory definitions, and we're free to argue our interpretation of the

statute.” (RR10:18). That observation is correct. For UPS to now contradict its

unequivocal statement at the charge conference would constitute invited error. See

Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96, 100-102 (Tex. App.—Eastland

2006, pet. denied) (party who agrees to something at charge conference cannot later

object to submission of that issue to the jury).

             b.     UPS waived its argument, or invited error, as to the trial
                    court not defining words in the statute for the jury.

      UPS further argues that the trial court’s failure to submit definitions to the

jury of the operative terms in the statute was error. First, this error has not been

preserved for appeal because UPS did not submit any such definitions to the trial

court. Texas Rule of Civil Procedure 278 is unequivocal that “[f]ailure to submit a


                                      Page 16 of 58
definition or instruction shall not be deemed a ground for reversal of the judgment

unless a substantially correct definition or instruction has been requested in writing

and tendered by the party complaining of the judgment.” TEX. R. CIV. P. 278. UPS

did not request any of the definitions or instructions whose omission it now assigns

as error and, therefore, the lack of definitions cannot be grounds for reversal.

      Second, compounding UPS’s failure to preserve this error are the unequivocal

statements made by its counsel during the charge conference. As referenced above,

the Rankins requested that the trial court include in the jury charge a definition of

“residence” taken from a 1999 Texas Supreme Court opinion. UPS objected to the

inclusion of the definition and told the trial court that “the safe course is just to not

add any additional definitions that are not in the statute.” (RR10:16). Not only did

UPS object to the inclusion of a definition of a word it now claims should have been

defined, it actively asked the court to not define that word or any other word that

was not defined in the statute. This is classic invited error, and UPS cannot now

complain about the lack of definitions in the jury charge. See Brandywood Housing,

Ltd. v. Texas Dep’t of Transp., 74 S.W.3d 421, 425 (Tex. App.—Houston [1st Dist.]

2001, pet. denied) (party who objected to inclusion of an issue from a jury charge

could not later argue that the issue should have been included).

      UPS further contends that the questions sent back to the trial court by the jury

during its deliberations evidence “confusion” and that the trial court erred in failing


                                      Page 17 of 58
to answer those questions to provide guidance to the jury. 9 (Appellants’ Brief at 30-

31). As happens in many jury trial, when the jury sent out a question during its

deliberations, the trial court conferred with counsel for all parties before responding.

(RR11:4-6). UPS never objected to the manner in which the trial court responded

to those questions and UPS never asked the trial court to define any terms or

otherwise provide additional guidance to the jury. Id. UPS cannot be allowed to

agree with the manner in which the trial court responded to the jury’s questions

during deliberations and then complain about it after the jury returns its verdict. This

argument has been waived and is barred by the doctrine of invited error. See

Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96, 100-102 (Tex. App.—Eastland

2006, pet. denied); Brandywood Housing, Ltd. v. Texas Dep’t of Transp., 74 S.W.3d

421, 425 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).

       5.      Any error is harmless because the jury’s answer to Question 1 is
               supported by the evidence and is correct under Texas law.

       Even if UPS is correct that the trial court should have determined UPS’s

negligence per se as a matter of law, the jury’s answer to Question 1 does not rise to

the level of harmful error. TEX. R. APP. P. 44.1. The jury deliberated, obviously

working hard to do its job, and got it right.


9
  The Rankins disagree that the questions from the jury evidence confusion. Rather, the jury
wanted to know if it was required to apply some particular definition to answer the question of
fact, and when the trial court told it to apply the ordinary meanings of the words it went to work
doing so to answer the questions of fact presented to it.
                                          Page 18 of 58
       UPS contend that focusing on the structure rather than the entire lot leads to

absurd results, but none of the parade of horribles set forth by UPS pose real

concerns. Rather, it is UPS’s interpretation that leads to absurd results. The home

at 109 Ranger Creek Road is not part of a subdivision. It is on an eight acre tract.

(RR17:5 (Plaintiffs’ Exhibit 26)). Other homes on Ranger Creek Road are on

similarly large tracts. Id. By any reasonable interpretation, Ranger Creek Road is a

rural highway, not a residential road.10 A court should give statutes their plain

meaning; the plain meaning of Section 541.102(2), necessarily refer to the

residences themselves, not to the property on which they sit.                   Under UPS’s

interpretation, if there were two houses on the entire 350,000 acre 6666 Ranch in

King County, Texas, it would qualify as a residence district as there would be more

than one residence on more than 300 feet of the highway frontage. This obviously

cannot be the case. But if UPS’s interpretation is accepted, there is almost certainly

nowhere in the State of Texas that is not a residence district.

       Second, UPS’s interpretation renders the phrase “primarily improved with

residences” superfluous. What could “primarily improved with residences” possibly

mean or apply to if one is supposed to consider the entire lot on which a house is




10
  Mr. Leal admitted that Ranger Creek Road was a “country road,” that 109 Ranger Creek Road
did not have a “real close by” next door neighbor, and that at the time of the accident there was
not much development around 109 Ranger Creek Road. (RR5:57-59, 61-62). UPS’s own accident
report referred to the area as “rural.” (RR17:6 (Plaintiffs’ Exhibit 28).
                                          Page 19 of 58
located in making this determination? Under UPS’s interpretation the statute would

read “[r]esidence district means the territory . . . adjacent to and including a highway,

if at least 300 feet of the highway frontage has residences.” Unfortunately for UPS,

Section 541.102(2) requires that “at least 300 feet of the highway frontage is

primarily improved with residences.” TEX. TRANSP. CODE. ANN. § 541.102(2).

“Primarily” means “for the most part.” MERRIAM-WEBSTER’S DICTIONARY                           AND

THESAURUS 824 (2006). Therefore, the question is whether or not more than half

(i.e., “primarily”) of 300 feet of the highway frontage is improved with residences

that determines whether an area is a residence district.11 The interpretation urged by

the Rankins is the only one that utilizes the entirety of the statute’s language and

correctly mirrors the intent and purpose of the statute.12


11
   UPS asks the Court to take judicial notice of various lot and house sizes in San Antonio, Austin,
Houston, and Dallas. These are not the types of things of which the Court can take judicial notice.
As one court correctly pointed out, “common knowledge encompasses those facts which are so
patently obvious and so well known to the community generally, that there can be no question or
dispute concerning their existence . . .” such as the fact that there are twelve inches in a foot.
“[T]he more disputable a fact may be, the less likely it will belong to that narrow set of facts
judicially recognized as common knowledge.” Brune v. Brown Forman Corp. 758 S.W.2d 827,
830-831 (Tex. App.–Corpus Christi 1988, writ denied).
12
   UPS contends, based on their completely unsupported statement regarding neighborhoods in
San Antonio, Austin, Houston, and Dallas that, therefore, Section 545.301would make it illegal to
park in these neighborhoods. First, there is no evidence in the record to support any of this
argument. Second, the statute itself provides exceptions for various types of vehicles. Third,
municipalities are permitted, by ordinance, to control parking and delivery in residential areas and
do so. (RR7:25-26). Fourth, Section 545.301 itself allows parking on the main traveled part of
the highway if it is not practicable to park off of the highway. It seems as if the entirely
hypothetical situations presented by UPS would largely be resolved by that exception.
Unfortunately for UPS in this case, the jury correctly found that it was practicable for Mr. Leal to
park entirely off the highway, a fact Mr. Leal admitted, and therefore UPS did not have access to
that exception.
                                           Page 20 of 58
       Some of the applicable rules of the road change based on whether a driver is

inside or outside a residence district. The point of the definition of “residence

district” is to provide motorists with requisite notice. If a “residence district” did

not require residences—homes—how could a motorist have notice? A 300 foot

fence with two homes occupying some portion of a large parcel of real estate would

certainly not provide that notice.

       Many states have similar statutes defining “residence district” for the purpose

of regulating their roadways, and the courts in a number of those states have agreed

with this interpretation. 13 See, e.g., Marshall v. Mullin, 320 P.2d 258 (Ore. 1958);

Minton v. Gobble, 304 S.W.2d 337 (Tenn. App. 1957); McGill v. Baumgart, 288

N.W. 799 (Wis. 1939). Still other courts have chosen to not establish a rigid

mathematical interpretation of “residence district,” recognizing that if there is a

dispute it is proper to submit the question to the jury. See, e.g., Gordon v. Cozart,

110 So.2d 75 (Fla. App. 1959); Bowling Green-Hopkinsville Bus Co. v. Adams, 261

S.W.2d 14 (Ky. 1953) (noting that practically every road in Kentucky had two or

three or four houses in close proximity, but that did not ipso facto make such an area

a “residence district.”)




13
  The statutes interpreted in the other states use “mainly” or “in the main,” rather than “primarily,”
but the import is the same.
                                            Page 21 of 58
       These cases confirm that it is the physical prominence of the residential

structures themselves—and not the land on which the residence sits—that must be

considered in determining a “residence district.” Id. The Virginia Supreme Court

has noted that in determining whether the statutorily required frontage is sufficiently

occupied to rise to the level of a residence district, “the total frontage of the buildings

is to be considered . . . to that extent the frontage is ‘occupied’ or covered by such

buildings. But open spaces between the buildings fronting on a street or highway are

not to be considered because they are not ‘occupied’ by such buildings within the

meaning of the definition.” Thoms v. Dowdy, 112 S.E.2d 868, 870 (Va. 1960)

(emphasis added). Significantly, the Virginia Supreme Court noted that “[c]ourts of

other jurisdictions which have considered similar statutes have almost without

exception adopted the same view.” Id.

       The selected cases cited by UPS are not to the contrary. While Baker v. Court

of Special Sessions, 15 A.2d 102 (N.J. 1940) does reject a rigid interpretation that

more than 50% of the frontage must be improved by buildings, it did not hold that

the frontage abutting residential land was all that mattered. Id. at 103. Rather,

because that area was zoned as “residential” and would be “colloquially known as a

residential section,” the court found that “the evidence satisfactorily showed a

residential status in the intendment of the statute.” Id. In other words, the court




                                       Page 22 of 58
merely took a more liberal view of “mainly occupied” and found that more than 50%

coverage was not required. Id.

      The subsequent New Jersey opinion from a lower court in State v. Mundy, 273

A.2d 620 (N.J. County Ct. 1970) does take the position urged by UPS, but it is a lone

wolf. Two other opinions from courts of equal jurisdiction in New Jersey hold that

the structures must occupy more than 50% of the highway frontage. See State v.

Zeus, 56 N.J. Super. 323 (Cty. Ct. 1959); State v. Bastian, 78 N.J. Super. 49 (Cty.

Ct. 1962). So at the end of the day, UPS has cited to one case from one state with a

holding that is the subject of dispute between courts of equal jurisdiction. Contrasted

with the overwhelming majority of states that focus only on the structures, rather

than the total frontage abutting residential land, it is clear that focusing on the

structures, as opposed to the entire residential lot, is correct.

      The two statutes cited by UPS in support of its proposed definition of

“residence” are likewise not helpful and do not compel a different result. The tax

code section defines “residence homestead” in the context of Texas’s homestead

exemption and specifically states that the definition is for purposes of that section

only. TEX. TAX CODE ANN. § 11.13(j). It would be silly for the State of Texas to tax

only the value of the structure and not the value of all the property owned. The

section from the property code is related to the liability of contractors and one of the

remedies is for the contractor to buy back the “residence.” TEX. PROP. CODE. ANN.


                                       Page 23 of 58
§ 27.0042. Such a scheme obviously would not work if “residence” meant only the

structure. In addition, that definition is likewise applicable only to that specific

chapter of the Property Code. Id. § 27.001 (“In this chapter”).

      What is helpful, however, is looking at what the Texas Supreme Court has

done in a similar circumstance. In interpreting a statute that turned on the term “legal

residence,” the Texas Supreme Court instructed that, because the statute did not

define “residence,” it would look to the generally accepted meaning of the word.

Owens Corning v. Carter, 997 S.W.2d 560, 571 (Tex. 1999). In so doing, the

Supreme Court held that “residence” means the “place where one actually lives or

has his home; a person's dwelling place or place of habitation; . . . a dwelling house.”

Id. (quoting BLACK'S LAW DICTIONARY 907 (abridged 6th ed. 1991)).

Similarly here, the legislature did not define “residence” in the relevant sections of

the Transportation Code and so this Court must look to the generally accepted

meaning of the word. Just because the legislature used “residences” in the definition

of one type of district and “dwelling houses” in another does not mean that

“residences” means anything other than what it means. “Residences” and “dwelling

houses” are the same thing and refer to the actual structure on the land, not the

entirety of the land itself. This is confirmed by the rules governing statutory

construction and the great weight of authority on the issue.




                                      Page 24 of 58
      The evidence before the jury was that significantly less than 50% of the

highway frontage on either side of Ranger Creek Road was improved with

residences. (RR18:36 (Defendant’s Exhibit 93A)). The jury was entitled to use its

collective knowledge to evaluate the evidence presented and to utilize the common

meaning of the words in the statute to determine whether or not 109 Ranger Creek

Road was located outside a residence district. (RR5:57-62, 219-221; RR6:166-167;

RR13:15-23 (Plaintiffs’ Exhibits 1AA-1EE), 29 (Plaintiffs’ Exhibit 1HH), 47

(Plaintiffs’ Exhibit 1T), 56 (Plaintiffs’ Exhibit 1Z); RR17:5, 6 (Plaintiffs’ Exhibits

26 & 28); Plaintiffs’ Exhibits 22 & 29 (admitted for demonstrative purposes);

RR18:43-44 (Defendants’ Exhibits 99F & 99G), 91-94 (Defendants’ Exhibits 144E-

144H)). The jury correctly determined that the accident took place outside a

residence district, and even if it was error for the trial court to submit the issue to

jury, any such error was harmless as the jury’s answer was correct. See Grohman v.

Kahlig, 318 S.W.3d 882, 887-88 (Tex. 2010).

B.    The evidence is legally and factually sufficient to support the jury’s
      verdict on their negligence per se claim.

      1.     “Residences” refers only to the residences on the property.

      The Rankins refer the Court to the discussion set forth above in Section V.A.4.

of their brief and incorporates it by reference. As shown, the proper interpretation

of Section 541.102 of the Texas Transportation Code is that “residences” refers



                                     Page 25 of 58
solely to the residences on the property, not the entire highway frontage, the

residential real estate fronting the highway, or the property between the residences.

      2.     The evidence is more than sufficient to support the jury’s finding
             that 109 Ranger Creek Road is outside a residence district.

      UPS contends that the evidence was not legally or factually sufficient to

support the jury’s finding in Question 1 that the UPS truck was stopped, parked, or

standing outside a residence district at the time of the accident. In reviewing UPS’s

legal sufficiency point, this Court is to focus on “whether the evidence at trial would

enable reasonable and fair-minded people to reach the verdict under review. Whether

a reviewing court begins by considering all the evidence or only the evidence

supporting the verdict, legal-sufficiency review in the proper light must credit

favorable evidence if reasonable jurors could, and disregard contrary evidence

unless reasonable jurors could not.” City of Keller v. Wilson, 168 S.W.3d 802, 827

(Tex. 2005). This standard recognizes the discretion afforded jurors in resolving

conflicts in the evidence. The Court can only reverse the jury’s verdict based on

UPS’s challenge to the factual sufficiency of the evidence if it is “so against the great

weight and preponderance as to be manifestly unjust; . . . it shocks the conscience;

or clearly demonstrates bias.” Pool v. Ford Motor Co., 715 S.W.2d 629, 63 (Tex.

1986).

      First, the Google map was introduced into evidence by UPS. It was UPS’s

trial exhibit. (RR18:36 (Def. Exh. 93A)). It defies logic that UPS now complains
                                      Page 26 of 58
that an exhibit it proffered does not accurately reflect the thing UPS introduced it to

reflect. These arguments should be rejected by the Court as UPS invited any error

with regard to the Google map. See Bluestar Energy, Inc. v. Murphy, 205 S.W.3d

96, 100-102 (Tex. App.—Eastland 2006, pet. denied); Brandywood Housing, Ltd. v.

Texas Dep’t of Transp., 74 S.W.3d 421, 425 (Tex. App.—Houston [1st Dist.] 2001,

pet. denied).

      The Google map standing alone is more than sufficient to support the jury’s

answer to Question 1. UPS never complained about the authenticity or accuracy of

the Google map at trial—particularly since it introduced the exhibit itself—and any

such complaint has been waived. As such, this Court must accept that the Google

map accurately reflected the layout and dimensions of the area around 109 Ranger

Creek Road. The Google map has a scale that allowed the jury to determine the

highway frontage and what portion of the highway frontage was improved by

residences. Moreover, because UPS never made the argument at trial that their own

exhibit 93A was inaccurate or did not reflect what it purported to reflect, the Rankins

never had an opportunity to cure any perceived issue with that piece of evidence.

      UPS cites to three out-of-state cases it contends stand for the proposition that

a photograph cannot be relied upon as proof of the dimensions or relative proportions

of such objects.    (Appellants’ Brief at 47).       In addition to being from other




                                     Page 27 of 58
jurisdictions, the most recent of the three opinions is 1951, when technology was

drastically different.

      Significantly, Texas courts do not have the same level of distrust in

photography. In Mooneyhan v. Benedict, 284 S.W.2d 741, 743 (Tex. App.—Austin

1955, no writ), the court referred to photographs reflecting that the “territory

adjacent to the highway appears to be open country” to assist it in deciding that the

location of an accident was neither a residential nor a business district. In Operation

Rescue-National v. Planned Parenthood of Houston, 975 S.W.2d 546, 563 (Tex.

1998), the Texas Supreme Court considered maps that had been introduced into

evidence that indicated the proposed buffer zones around various clinics in the

Houston area.

      Second, contrary to UPS’s suggestion that the only evidence supporting the

jury’s finding was the Google aerial photograph, additional evidence further

supported the jury’s answer to Question 1. The Affidavit of Lori Carroll established

that 109 Ranger Creek Road was not in a residence district in the City of Boerne.

(RR8:85-86). The pictures and testimony regarding the area around 109 Ranger

Creek Road established that it was rural in nature, rather than urban, and not densely

populated. (RR5:57-62, 219-221; RR6:166-167; RR13:15-23 (Plaintiffs’ Exhibits

1AA-1EE), 29 (Plaintiffs’ Exhibit 1HH), 47 (Plaintiffs’ Exhibit 1T), 56 (Plaintiffs’

Exhibit 1Z); RR17:5 (Plaintiffs’ Exhibit 26); Plaintiffs’ Exhibits 22 & 29 (admitted


                                     Page 28 of 58
for demonstrative purposes); RR18:43-44 (Defendants’ Exhibits 99F & 99G), 91-94

(Defendants’ Exhibits 144E-144H)). And the fact that the posted speed limit was

45 miles per hour lent support to the jury’s finding that 109 Ranger Creek Road was

outside a residence district. (RR5:59-60).

      More than enough evidence was admitted to support the jury’s answer to

Question 1.    And UPS presented no controverting evidence, only a different

interpretation of “residence district.” As such, the jury was entitled to interpret the

evidence as it did and its finding should not be disturbed.

      3.      In the alternative, even if the Trial Court erred in submitting the
              Rankins’ negligence per se claim to the jury, it is not reversible
              error.

      UPS contends that, if it is correct that the negligence per se questions were

either improperly submitted or not supported by sufficient evidence, this Court

must remand the case to the trial court as there is no way to determine how much

of the 50% responsibility attributed by the jury to Mr. Rankin and Mr. Leal was

attributable to negligence per se standing alone. This argument fails for a number

of reasons.

      First, UPS did not preserve this error. UPS’s proposed charge had negligence

per se and negligence liability findings combined into one question, with the jury

moving forward to a conditional question based on general negligence only if the

jury answered no to the first question. (CR2:133-35). Therefore, even under UPS’s

                                     Page 29 of 58
proposed charge, the result would have been the same, i.e., the jury would have

answered yes to its proposed Question 2 (finding liability for negligence per se and

negligence) and then would have moved ahead to Question 4 to determine

proportionate responsibility. Id. Rule 278 of the Texas Rules of Civil Procedure

required UPS to submit an appropriate proportionate responsibility question (or

questions, it is not clear what UPS contends should have been done), and by failing

to do so, the failure to submit the question or questions is not grounds for reversal.

TEX. R. CIV. P. 278.

      Second, even if submission of the negligence per se claim was improper, the

jury found that both Mr. Leal and Mr. Rankin were negligent. Negligence per se

and negligence are not distinct or competing liability theories. To the contrary, both

simply rely upon a failure to exercise ordinary care. The only distinction is that, in

negligence per se, the standard is explicitly defined by statute and in negligence the

standard is one of ordinary care. In any event, the jury here found that Mr. Leal

violated the statute such that he was negligent per se and also found that, without

any reference to the standard set forth in the statute, he failed to exercise ordinary

care and was negligent. (CR2:194-196). The Jury Charge specifically instructed the

jury that its job was to determine the percentages of responsibility for those it “found

caused or contributed to cause the occurrence.” (CR2:197). Moreover, the jury was

told that “[t]he percentage of responsibility attributable to any one is not necessarily


                                      Page 30 of 58
measured by the number of acts or omissions found.” (CR2:197). The jury

apportioned responsibility based on what it believed were the causes of the accident.

      The case cited by UPS proves this point. In Romero v. KPH Consolidation,

Inc., 166 S.W.3d 212 (Tex. 2005), a jury found both that a hospital was negligent in

its treatment of a patient and that the hospital acted with malice in credentialing the

physician involved.     Id. at 214.    The jury then found, in one proportionate

responsibility question, that the hospital was 40% responsible. After finding that

there was no evidence to support submission of the question on malicious

credentialing, the Supreme Court considered the effect of submitting that question

on the proportionate responsibility question. Id. at 224-25. Because of the serious

impact it must have had on the jury to find that the hospital acted maliciously in

credentialing the physician, the Court stated that “the jury could not conceivably

have ignored that finding in apportioning responsibility.” Id. at 227. The Court

made it clear, however, that if the reviewing court is “reasonably certain that the jury

was not significantly influenced by issues erroneously submitted to it,” any error is

not grounds for reversal. Id. at 227-28.

      Negligence is negligence. This case is very far from the situation present in

Romero, in which an intentional act was combined with negligent conduct, or at least

two very different acts were combined. The jury found that Mr. Leal was negligent

per se and negligent. The jury’s findings with regard to Mr. Leal were based both


                                      Page 31 of 58
on its determinations with regard to the Transportation Code and on its determination

that he failed to exercise ordinary care. (CR2:194-96). The jury then determined

that Mr. Leal was 50% responsible for the accident. (CR2:197). This is not a

situation in which one theory required a higher level of intent than the other, such

that it would influence the jury’s proportionate responsibility finding. Unlike in

Romero, the jury in this case, in answering the proportionate responsibility question,

could not have been significantly influenced by submission of the negligence per se

question because neither negligence theory required intentional or knowing conduct

and because the negligent acts were the same. See Texas Mut. Ins. Co. v. Morris,

287 S.W.3d 401, 430 (Tex. App.—Houston [14th Dist.] 2009) (holding that reversal

is not required when it is reasonably clear that the jury would have answered the

same way on both the challenged theory and an unchallenged theory), rev’d on other

grounds, 383 S.W.3d 146 (Tex. 2012).

C.    The Trial Court correctly admitted the Affidavit of Lori Carroll and
      correctly excluded portions of the testimony of Sergeant Allison and
      Megan McGehee.

      1.     The Affidavit of Lori Carroll was not hearsay and was properly
             admitted.

      UPS contends that the trial court erred in admitting the Affidavit of Lori

Carroll, the City Secretary for Boerne, Texas, into evidence. The correct standard

of review for this point of error is whether the trial court abused its discretion in


                                     Page 32 of 58
admitting the Affidavit. Waste Mgmt. of Tex. Inc. v. Texas Disposal Sys. Landfill,

Inc., 434 S.W.3d 142, 157 (Tex. 2014).

      UPS first contends that the Affidavit is inadmissible hearsay. That is incorrect

under Texas Rule of Evidence 803(8). TEX. R. EVID. 803(8). The trial court

correctly concluded that, based on that exception to the hearsay rule, the Affidavit

was not hearsay and was admissible. (RR5:22-25). Rule 803(8) provides that

records, reports, statements, or data compilations, in any form, of public offices or

agencies setting forth: (A) the activities of the officer agency: (B) matters observed

pursuant to duty imposed by law as to which matters there was a duty to report…;

or (C) in civil cases as to any party and in criminal cases as against the state fact,

factual findings resulting from an investigation made pursuant to authority granted

by law. This is exactly what the Affidavit of Lori Carroll is.

      The Affidavit sets forth Ms. Carroll’s position, sets forth her job

responsibilities in that position, and specifically identifies as one of her job

responsibilities verifying the location of the City of Boerne business and residence

districts, as those terms are defined by Tex. Transp. Code § 541.102. (RR8:85-86).

The Affidavit then states, as verified by a public officer, the facts that resulted from

an investigation made pursuant to an authority granted by law, i.e., that 109 Ranger

Creek Road is outside the City of Boerne’s corporate city limits and not within a

business or residence district of the City of Boerne as of June 15, 2009. (RR8:85-


                                      Page 33 of 58
86). This type of document is exactly the type of document anticipated by Rule

803(8), and therefore the Affidavit was properly admitted.

      UPS next complains that because the Affidavit is allegedly conclusory it

should not have been admitted into evidence at trial. UPS cites no authority for that

proposition. Rather, UPS cites summary judgment cases in which a conclusory

affidavit was found to be conclusory. UPS does not cite a single case in which an

appellate court in the State of Texas has found that an affidavit that falls under the

exception to hearsay provided by Tex. R. Evid. 803(8) is not admissible at trial.

      UPS also contends that it can raise this objection for the first time on appeal.

Not surprisingly, UPS makes this argument because it did not raise this contention

with the trial court. Again, UPS cites only to summary judgment cases and the

particular rules that apply in that context regarding the difference between

substantive and procedural defects in an affidavit. The problem with UPS’ position,

however, is that the distinction between defects in form and defects in substance of

affidavits used to support a motion for summary judgment is specific to the summary

judgment rule. See Tex. R. Civ. P. 166a(f). UPS has cited no authority, and the

Rankins are aware of none, that would extend that rule to a jury trial. To the contrary,

Texas law specifically requires that the grounds for an objection be made with

sufficient specificity to allow the trial court to make a ruling on the objection. TEX.




                                      Page 34 of 58
R. APP. P. 33.1(a)(1)(A). UPS completely failed to do so, and therefore this point of

error has not been preserved and is waived.

         Even if it was not waived, however, the Affidavit is not conclusory. Ms.

Carroll is the public official for the City of Boerne charged with making the very

determination made in her Affidavit and the information setting forth her

qualifications and her conclusions are set forth in the Affidavit. An affidavit is not

“conclusory” merely because the affiant reaches a conclusion after an investigation.

Strother v. City of Rockwall, 358 S.W.2d 462, 469 (Tex. App.—Dallas 2012, no

pet.).

         UPS also contends that Ms. Carroll’s Affidavit was irrelevant, misleading,

and confusing to the jury. Its argument seems to be that the Affidavit was misleading

or confusing because 109 Ranger Creek Road is outside the city limits of Boerne.

However, the Affidavit specifically sets forth that 109 Ranger Creek Road is outside

the city limits of Boerne. (RR8:85-86). It is difficult to understand how the Affidavit

could be irrelevant, misleading, or confusing when it states the very thing that UPS

wants it to state. The trial court took UPS’s contention into account, and correctly

ruled that because the Affidavit said exactly what UPS was arguing, UPS could,

therefore, argue to the jury their position on the import of Ms. Carroll’s Affidavit.

(RR4:58-61). It is interesting to note that this piece of evidence that UPS contends

was so critical was only mentioned once in passing by the Rankins and was not


                                     Page 35 of 58
mentioned at all by UPS during closing arguments. (RR10:107). It is difficult to

take seriously UPS’s argument when the evidence complained of merited only one

passing reference from the parties when arguing the case to the jury.

       2.      The excluded testimony of Sergeant Allison was irrelevant and
               without any basis in law or fact, and was properly excluded.

       UPS contends that the trial court erred in excluding portions of Sergeant

Allison’s deposition testimony. The trial court’s decision to exclude portions of

Sergeant Allison’s testimony can be disturbed on appeal only if the trial court abused

its discretion. Waste Mgmt. of Tex. Inc. v. Texas Disposal Sys. Landfill, Inc., 434

S.W.3d 142, 157 (Tex. 2014).

       Although UPS objected to the exclusion of a few portions of the deposition of

Sergeant Allison at trial, on appeal it complains only about the exclusion of four

questions and four answers from his deposition. (See Appellants’ Brief at 54). UPS

contends that the excluded testimony constituted Sergeant Allison’s opinion that Mr.

Leal was not illegally parked. A plain reading of the testimony, however, does not

support that conclusion. 14 UPS’s counsel certainly attempted to illicit that testimony

when she asked Sergeant Allison if he considered 109 Ranger Creek Road to be a

“residence district.” It appears Sergeant Allison was uncomfortable utilizing that

statutorily-defined phrase, however, and instead stated that he considered that area


14
  Although, as will be discussed later, Sergeant Allison did testify to that very thing in testimony
that was not excluded by the trial court and was heard by the jury.
                                           Page 36 of 58
to be a “residential area.” (RR19:29-31). In fact, UPS’s counsel pressed Sergeant

Allison on the phrase “residence district,” he reiterated that “I am going to say its

residential area. That’s what it is. That’s what we consider it. That’s what I’m

going to say.” (RR19:31). Sergeant Allison never utilized the term “residence

district” and, in fact, refused to do so.

       Most significantly, Sergeant Allison admitted that his use of the term

“residential area” was not based on an interpretation or application of Section

541.102 of the Texas Transportation Code, but rather was based solely on the fact

that there were houses along the road. (RR8:126, 139).

      The testimony that was excluded was of no probative value. UPS contends

that the evidence was important because it showed that Mr. Leal was parked in a

residence district. Sergeant Allison’s testimony, however, was not in any way based

on the definition of that term in the Texas Transportation Code. Id. As the trial

court correctly noted, it would have been entirely inappropriate to have someone like

Sergeant Allison, “who doesn’t know a thing about the statute, trying to opine about

something he’s admittedly completely clueless about.” (RR8:93).

      In addition, the excluded testimony of Sergeant Allison about which UPS

complains was his testimony attempting to interpret the definition of residence

district from the Texas Transportation Code, a task he admittedly did not do.

(RR8:126, 139). UPS was allowed to introduce testimony from Sergeant Allison


                                       Page 37 of 58
that Mr. Rankin had the duty to follow the same traffic laws as vehicles, that Mr.

Rankin had a duty to keep a lookout for vehicles, that Mr. Rankin had a duty to ride

his bike at a safe speed in order to respond to traffic conditions, that Mr. Rankin had

some responsibility to take evasive action to avoid a stationary object, and that there

was enough space for a cyclist to have gone around the UPS truck. (RR8:119-120).

Sergeant Allison was allowed to testify that he had observed commercial vehicles,

mail trucks, and garbage trucks stopping in similar fashion as the UPS truck in this

case. (RR8:122). Sergeant Allison was allowed to testify that there were other

residences along Ranger Creek Road (RR8:123). And, importantly in response to

UPS’s point of error, Sergeant Allison was allowed to testify that he did not cite Mr.

Leal for any violation of parking statutes and that he did not feel that Mr. Leal

violated any parking statutes.15 (RR8:124).

       Sergeant Allison was not qualified to testify as to the application of the Texas

Transportation Code in this instance. By his own testimony he had only a “brief

overview” of the traffic laws on Texas during his training, as his primary function is

not traffic. (RR8:109-110). He testified that he was not generally called upon to

make determinations whether an area is a “residence district” for parking purposes.




15
  Sergeant Allison’s testimony on this subject was of limited or no probative value. It was based
solely on what was told to him by Mr. Leal, without conducting any real investigation, and he was
admittedly not familiar with the sections of the Texas Transportation Code in question. (RR8:137-
140).
                                          Page 38 of 58
(RR8:139).    Sergeant Allison did not purport to be an expert on the Texas

Transportation Code and UPS did not establish that he was, therefore the trial court

properly excluded the proffered expert testimony. Helena Chem. Co. v. Wilkins, 47

S.W.3d 486, 499 (Tex. 2001)

      Sergeant Allison also did not have any basis for a purported opinion that 109

Ranger Creek Road was within a “residence district” as that term is defined by the

Texas Transportation Code. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex.

2002). In fact, he never used that phrase. Moreover, he admitted to having no actual

expertise on the subject of whether the area around 109 Ranger Creek Road met the

criteria of a “residence district.” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499

(Tex. 2001). The trial court properly excluded the testimony because it had no basis

in law and fact, was not being offered by an expert on the subject, and carried the

risk of significant prejudice to the jury in that it would have been hearing testimony

from a law enforcement official which could carry great weight in their minds. TEX.

R. EVID. 401, 403, 702, & 703.

      Importantly, even if exclusion of that portion of Sergeant Allison’s testimony

was error, UPS was able to present to the jury through other testimony, including

other portions of the deposition testimony of Sergeant Allison, essentially the same

information. Specifically, Sergeant Allison testified that he did not believe Mr. Leal

had violated any parking statutes and did not issue a citation, and UPS argued that


                                     Page 39 of 58
point vociferously during closing argument to the jury. (RR8:124; RR10:140-42).

Therefore, any error, which the Rankins deny, was harmless as UPS obtained and

introduced to the jury the same information, and argued it at length in closing

argument. TEX. R. APP. P. 44.1.

      3.     The excluded testimony of Megan McGehee was irrelevant and
             duplicative, and was properly excluded.

      UPS further complains about the exclusion of two questions and two answers

from the deposition testimony of Megan McGehee, who resided at 109 Ranger Creek

Road at the time of this incident. As with the other evidentiary complaints from

UPS, the trial court’s decision to exclude that testimony is reviewed under an abuse

of discretion standard. Waste Mgmt. of Tex. Inc. v. Texas Disposal Sys. Landfill,

Inc., 434 S.W.3d 142, 157 (Tex. 2014).

      It is difficult to understand exactly what error could have arisen from the

excluded testimony. The testimony was that there were families on each side of 109

Ranger Creek Road. Sergeant Allison testified to the fact that there are residences

on either side of 109 Ranger Creek Road. (RR8:123). The jury saw maps and

photographs that showed residences on either side of 109 Ranger Creek Road.

(Defendants’ Exhibit 93A). The Rankins never contested that there were houses on

either side of 109 Ranger Creek Road; it is simply something that was not in dispute.

The proffered testimony was, therefore, irrelevant and duplicative as that evidence

was already before the jury and was undisputed. The only fact issue as to the
                                    Page 40 of 58
neighbors on either side of 109 Ranger Creek Road was with regard to how densely

the area was populated and how far apart those residences were, which was

necessary for the jury to make a determination of whether 109 Ranger Creek Road

was within or outside a residence district. That was a fact that was determined by

the jury in response to Question 1, and the testimony of Ms. McGehee offered

nothing to the jury in its efforts to resolve that, or any other, question. TEX. R. EVID.

401 & 403. The trial court did not abuse its discretion in excluding the evidence but,

even if the exclusion was error, it was harmless. TEX. R. APP. P. 44.1.

D.    The Rankins’ counsel made no judicial admission during closing
      argument.

      To be considered a judicial admission, a statement must be clear, unequivocal,

and deliberate. Spradlin v. State, 100 S.W.3d 372, 380 (Tex. App.–Houston [1st

Dist.] 2002, no pet.). This rule obviously does not do away with long-standing Texas

policy allowing parties to plead, present evidence, and argue in the alternative. In

fact, that is explicit in the requirement that the statement be unequivocal. Arguments

made in the alternative do not constitute judicial admissions. Id. at 380-81.

      UPS only tells half of the story, or none of it, throughout its brief. In this

instance it tells half. Mr. Marketos in his closing argument clearly articulated to the

jury the Rankins’ argument that the vehicle could have been in motion, thereby

constituting negligence—including that the vehicle could have been put in motion

shortly before the collision after it was parked. (RR10:157-158). However, he also
                                      Page 41 of 58
clearly articulated that even if the jury determined that the truck was not in motion

at the time of the incident, the location at which it was parked indisputably would be

a violation of the statute, and therefore negligence per se, as well as constituting

common law negligence. (RR10:104) (“let’s start there with where he chose to park,

at least as he explains it, in this case”); (RR10:105) (“He didn’t know what a – the

legal definition of a residential district”); (RR10:105-07) (arguing 109 Ranger Creek

road outside “residence district”); (RR10:107) (“When [Scott Rankin] struck the

vehicle, . . . whether it was parked or otherwise, one thing we can all agree on is, Mr.

Rankin was riding his bike on the highway, that’s his legal right, and nobody is

arguing otherwise.”); (RR10:108) (“But he opted not to park on the shoulder. This

is where he says he was parked.”); (RR10:109) (“but where he was parked, he left

his vehicle unattended, and he chose to park, and it was in the most direct route to

Ms. McGehee’s front door.”); (RR10:152) (“Would Mr. Rankin be paralyzed if this

truck were not in such a hurry and had pulled off the highway?”).

      In addition, UPS assumes that the alternative statements made by the Rankins’

counsel during closing argument are inherently inconsistent with the jury’s answers

to Questions 1 and 2, but that is not necessarily the case. To be in violation of the

Texas Transportation Code, the jury had to find that the UPS truck was “stopped,

parked, or standing outside of a ‘residence district’” at the time of the accident.

(CR2:194). The jury could have found that Mr. Leal parked off of the roadway in


                                      Page 42 of 58
one of the other practicable places to park, backed onto the roadway after returning

to his truck, and was stopped briefly while shifting into drive when the collision with

Mr. Rankin occurred. Such a scenario would be consistent with the statements made

by counsel for the Rankins and with the jury’s verdict.

      The statements cited in Appellants’ Brief are not unequivocal and were made

in the alternative. In addition, they are not necessarily inconsistent with the jury’s

verdict. As such, they are not judicial admissions.

E.    The evidence is legally and factually sufficient to support the jury’s
      verdict that the negligence of UPS’s driver, Roland Leal, proximately
      caused the occurrence.

      UPS’s driver, Roland Leal, parked unreasonably, unsafely, and illegally. The

jury found him negligent and 50% at fault. His vehicle was stopped partially on the

roadway and partially off the roadway. The jury determined that Mr. Leal was

negligent in stopping the vehicle where he did. Whether he stopped after backing

up or had parked in that location, the jury determined that Mr. Leal was negligent in

stopping his truck where he did. That was a question of fact for the jury alone to

determine. Proximate cause was not contested – breach of duty was, vigorously.

      UPS now argues that proximate cause should be decided in its favor as a

matter of law and should never have gone to the jury despite the fact that UPS

submitted a Proposed Jury Charge which included almost the very same question on

negligence and proximate cause that was actually submitted to the jury. (CR2:132-


                                     Page 43 of 58
135). That alone should bar UPS’s argument as invited error. See Bluestar Energy,

Inc. v. Murphy, 205 S.W.3d 96, 100-102 (Tex. App.—Eastland 2006, pet. denied).

      Even if UPS’s contention in this regard is not barred by the invited error

doctrine, it does show that UPS is less than serious about its arguments and is simply

summoning up every possible argument, regardless of its merit. Proximate cause is

uniquely and almost always a question of fact for the jury. Clark v. Waggoner, 452

S.W.2d 437, 440 (Tex. 1970); Homeland Express, LLC v. Seale, 420 S.W.3d 145,

149 (Tex. App. – El Paso 2012, no writ); Rodriguez v. Moerbe, 963 S.W.2d 808

(Tex. App. – San Antonio 1998). The jury’s decision was proper and was based on

more than sufficient evidence.

      But for the location of the truck partially on the roadway, Scott Rankin would

not have run into it. About that there can be no dispute. Had the truck been located

safely off the roadway, this collision would never have happened because Scott

Rankin was riding his bicycle on the roadway. Cause in fact – the “but for” portion

of proximate cause – is unquestionably present and has not been challenged by UPS.

      UPS argues that its driver’s negligence was not the proximate cause of Mr.

Rankin’s injuries for the following reasons: (1) Scott Rankin should have seen the

truck in front of him and therefore; (2) Scott Rankin’s negligence was the sole

proximate cause of the accident; (3) UPS’s negligence was not a substantial factor

in causing the injuries; (4) Scott Rankin had an opportunity to avoid the effect of


                                     Page 44 of 58
UPS’s negligence; and (5) the potential of a collision with the back of a dangerously

stopped UPS truck would not have been foreseeable to the UPS driver. None of

these arguments have merit. Even a cursory understanding of the law of proximate

cause, combined with the facts of this case, demonstrate the lack of substance of the

arguments.

      The visibility of the truck to Scott Rankin is unknown. No one recreated the

exact conditions or events of the fateful day that Scott Rankin collided with the truck.

No one can know exactly what he could see. The jury heard the testimony upon

which UPS relies and also saw photographs and videos in which it was very difficult

to see a truck parked in that exact location until mere seconds before coming upon

it. (Plaintiffs’ Exhibits 22 & 29 (admitted for demonstrative purposes); RR18:43-

44 (Defendants’ Exhibits 99F & 99G), 91-94 (Defendants’ Exhibits 144E-144H)).

Scott and Rachelle Rankin strongly disputed the allegation that Scott Rankin had

suffered from heat induced illness earlier in the day and UPS’s own expert testified

there was no medical evidence of any such thing. (RR6:48, 58, 116; RR8:246-247).

Scott Rankin testified about his pattern and practice with regard to being aware of

his surroundings when riding his bicycle. (RR6:155-159, 163-164, 170-173). His

ability to see the truck or get around it without colliding with it, however, was

obviously considered by the jury and the jury found that UPS and Mr. Rankin each

deserved 50% of the fault.


                                      Page 45 of 58
       All the evidence upon which UPS relies to “establish” lack of proximate cause

was disputed at trial and it appears the jury simply found the Rankins’ evidence more

credible.16 The fact that the truck may have been visible to Mr. Rankin (for whatever

period of time) before Mr. Rankin collided with it does not mean that UPS was not

negligent. Indeed, it is well established that there may be more than one cause of an

event, the jury was so instructed, and there was more than one cause in this case.

The jury considered the facts, and held both parties at fault.

       Likewise, the claim that Scott Rankin’s negligence was the sole proximate

cause of the wreck is not true factually or legally. If the truck had not been stopped

where it was, the collision could not have occurred. One of the cases cited by UPS,

Lawrence v. City of Wichita Falls, 122 S.W.3d 322 (Tex. App. – Fort Worth 2003,

pet. denied), shows as a matter of law that Scott Rankin’s conduct could not be the

sole proximate cause of his injuries. The Lawrence court states, correctly, that sole

proximate cause is an “inferential rebuttal issue available when the evidence shows

that a third person’s conduct, not the conduct of any of the parties to the lawsuit, is

the only proximate cause of the damage.” Id. at 329 (citing Montes v. Pendergrass,

61 S.W.3d 505, 508 (Tex. App. – San Antonio 2001, no pet.). The Lawrence court




16
   In fact, in reading UPS’s brief one might be led to believe that there was no conflicting evidence
at trial and no contested fact issues, as UPS repeatedly represents as uncontested that which was
heavily contested.
                                           Page 46 of 58
repeats the familiar refrain that proximate cause is a question of fact for the jury to

decide, again citing Montes at page 508.

      UPS argues that a key element in the “substantial factor” analysis for

proximate cause is “whether the Plaintiff had an opportunity to avoid the effects of

the Defendant’s conduct.” This is simply untrue. Whether a plaintiff had an

opportunity to avoid the effects of the defendant’s conduct is a question of

proportionate responsibility.

      UPS cites Union Pump Company v. Allbritton, 898 S.W.2d 773, 774 (Tex.

1995) for this unfounded, incorrect statement that confuses proximate cause with the

standard of care.    The Court in Union Pump never held that the plaintiff’s

opportunity to avoid the effects of the negligence should be considered in

determining if proximate cause exists. The Court concluded that the pump fire in

Union Pump only created the condition that made the injuries possible, because

forces generated by the fire had “come to rest” when the plaintiff fell off the pipe

rack and suffered her injuries. Id. at 776. UPS’s confusion of proportionate

responsibility with proximate cause is not supported by the Union Pump decision,

nor any other Texas case.

      The effects of the UPS truck being stopped on the highway had not “come to

rest” when Scott Rankin collided with the back of the truck. The location of the




                                     Page 47 of 58
truck, found by the jury to be parked unreasonably, unsafely, and illegally, is exactly

what caused his debilitating injuries.

      Just to be sure that it does not miss any opportunity to argue any possibly

theory, UPS also throws in a lack of foreseeability. By arguing to this Court that its

driver could not have reasonably foreseen the potential effects of his negligence or

potential for harm, UPS ignores its owns driver’s testimony that he was trained by

UPS that backing the vehicle should not be undertaken because of the risk of harm

and that backing and parking are two of the largest reasons for loss to UPS.

(RR5:105-109). It further ignores Mr. Leal’s testimony that the place he allegedly

parked was safer for the UPS truck, but that being entirely off of the roadway would

have been safer for other users of the roadway. (RR5:104). Finally, it ignores the

jury findings that Mr. Leal was negligent by stopping his vehicle as he did.

(CR2:194-196).

      The law could not be clearer that foreseeability does not require that a person

anticipate the precise manner in which an injury will occur once he has created a

dangerous situation through his negligence. Travis v. City of Mesquite, 830 S.W.2d

94 (Tex. 1992); Rodriguez v. Moerbe, 963 S.W.2d 808, 818 (Tex. App. – San

Antonio 1998, no writ). The same cases also instruct that there can be concurrent

proximate causes of an accident and all persons whose negligent conduct contributes

to the injury, proximately causing the injury, are liable. Id.


                                      Page 48 of 58
      The cases relied upon by UPS for the proposition that proximate cause should

be decided in its favor as a matter of law because the causation is too attenuated are

easy to distinguish. This Court’s unpublished opinion in Turner v. Cruz, 2010 Tex.

App. LEXIS 10216 (Tex. App.—San Antonio Dec. 29, 2010, no pet.), for example,

involved an automobile accident in which an intoxicated driver, traveling at an

excessive speed, hydroplaned on a wet highway, crossed a lane into oncoming traffic

and hit a vehicle driven by defendant Cruz. This Court did in fact hold in that case

that every motorist has a duty to keep a proper lookout, and is not required to

anticipate negligence or other unlawful conduct on the part of another, and in that

case that rule excused Cruz from any liability for any of his acts or omissions in not

being able to stop in time to avoid the collision. That principle would apply to excuse

Mr. Rankin in this case. And the facts in that case are very different from this case.

It turned on duty. This Court found that defendant Cruz owed no duty and did not

breach any duty. UPS does not yet have the temerity to argue in this case that it

owed no duty to other users of the roadway. Duty is not an issue in this appeal.

      The Court in Southwestern Bell Telephone Company v. Hertz Equipment

Rental Company, 533 S.W.2d 853 (Tex. App. – Fort Worth 1976, writ ref'd n.r.e.),

concluded that the acts of a driver of a rental vehicle, by driving with an illegal load

in excess of 13 feet 6 inches high, was a proximate cause as a matter of law of

damage to the telephone company’s telephone cable. Id. at 856-57. The court noted


                                      Page 49 of 58
that the operation of the truck with that load could not be a remote cause of the event,

just as the stopping on the roadway by UPS could not be the remote cause of this

event. Id.

      Ambrosio v. Carter’s Shooting Center, Inc., 20 S.W.3d 262 (Tex. App.–

Houston [14th District] 2000 pet. denied) contains an excellent discussion of

proximate cause. Noting that the Supreme Court has recognized that certain causes

are insufficient to constitute the legal cause of an injury, the Ambrosio court

discussed Bell v. Campbell, 434 S.W.2d 117, 122 (Tex. 1968); Lear Siegler, Inc. v.

Perez, 819 S.W.2d 470 (Tex. 1991); and the aforementioned Union Pump Company

v. Allbritton, 898 S.W.2d 773 (Tex. 1995), the triad of Texas cases holding

proximate cause to be too remote or attenuated. Ambrosio, 20 S.W.3d at 266-68.

The court noted that in each of those cases, the negligence charged to the defendants

had not caused the injury or death, as it did directly in this case. Id.

      In Bell, three people were injured when they were struck by another vehicle

while attempting to move a trailer which had overturned as a result of an earlier

accident that was blocking a lane of traffic. Id. at 267. In Lear Siegler, the plaintiff

had been trying to reattach wires to a sign that was being pulled behind a highway

department truck. Id. While he was trying to do so, an oncoming vehicle, whose

driver was asleep, struck the sign, which in turn, struck and killed Perez. Id. The




                                      Page 50 of 58
claimed negligence of the manufacturer of an allegedly defective sign was not the

cause of the plaintiff’s death. Id.

      In Union Pump, after a fire, the plaintiff had gone to perform certain repairs

on a valve. Id. After reaching the valve, it was determined that the repair was no

longer necessary. Id. The plaintiff then chose to climb over the pipe rack instead of

taking the safer route around it, but slipped off the pipe rack and injured herself. Id.

The Texas Supreme Court concluded, as mentioned previously, that the acts or

omissions of the defendant had run their course, and it was not the fire that caused

the injury. Id. at 267-68.

      In this case, there are no such extenuating circumstances. There are no third

parties. This was a simple, and tragic, matter of a collision between two users of the

roadway. The jury heard the disputed evidence on visibility, Scott Rankin’s physical

condition, Scott Rankin’s pattern and practice when riding, viable alternative

locations for the truck, and Mr. Leal’s knowledge of the dangers of the location of

his truck and determined fault between the parties. Proximate cause was a simple

thing. If the truck had not been parked where it was, the collision could not have

occurred (cause in fact). The location of the truck was a substantial factor in bringing

about the accident, and the driver of the UPS truck knew and should have foreseen

that his negligent acts could lead to harm to another. Nothing came to rest until Scott

Rankin was a quadriplegic.


                                      Page 51 of 58
      Homeland Express, LLC v. Seale, 420 S.W.3d 145 (Tex. App. – El Paso 2012

no writ) involves facts very similar to those in this case. A truck driver for Homeland

Express parked his 18-wheel tractor trailer partially on the shoulder and partly on

the roadway of Interstate 10 in Culberson County. Id. at 147. A few minutes later,

a van driven by a grandfather and carrying his 14 year old grandson approached the

rig traveling eastbound on I-10. Id. The driver swerved to the right onto the shoulder

to avoid the maneuvers of a third vehicle which cut in front of the van, and as he

attempted to come back into the right hand lane of the highway, the van clipped the

left rear of the 18 wheeler with the van’s right front bumper. Id. The grandson was

seriously injured. Id. at 148.

      The evidence was that the accident would not have occurred had the truck

driver not parked where he did. Id. at 149-50. The truck driver had also violated

trucking regulations by not placing reflective devices behind his truck. Id. at 150.

The Court in the Homeland Express case distinguished Lear Siegler, Bell, and Union

Pump in much the same way as those cases are distinguished from this case above.

Id. at 150-51. The jury verdict finding the negligence of the truck driver to be the

proximate cause of the grandson’s injuries was affirmed. Id. at 152.

      Proximate cause was never an issue in this case. The negligence of the UPS

driver contributed to cause the collision, which resulted in profound injuries to Scott

Rankin. UPS objected to the submission of the negligence questions (2 and 3) to the


                                     Page 52 of 58
jury, but only after it had submitted the same questions itself. There were no third

parties, no remoteness, and no attenuated causation in this case. Bell, Union Pump,

and Lear Siegler all involved unusual circumstances in which causation was not

easily nor logically seen. Proximate case is clear, logical, and indisputable in this

case.

F.      The jury’s verdict that Scott Rankin was 50% responsible is the
        consummate jury question and is supported by legally and factually
        sufficient evidence.

        The Court is not free to substitute its judgment for that of the jury, and should

decline UPS’s invitation to do so. Larson v. Cactus Utility Co., 730 S.W.2d 640,

641 (Tex. 1987). As discussed above, the evidence cited by UPS as conclusively

establishing proportionate responsibility was disputed and the jury heard significant

evidence to the contrary. The Rankins’ counsel did not state that Mr. Rankin rode

with his head down for over a minute. That was a recap of testimony presented by

UPS’s expert and was used for effect to point out the outrageous nature of UPS’s

position. The jury was presented with significant evidence that contradicted and cast

doubts upon Mr. Leal’s version of events and the distance from which the truck

could be seen. It is absurd for UPS to use Mr. Rankin’s attempt to console Mr. Leal

as a weapon for its legal argument. Mr. Rankin testified as to those statements,

indicating that he was concerned for his life and hoped to provide Mr. Leal with

some comfort. (RR6:180-183). Mr. Rankin did not at that time have any memory


                                       Page 53 of 58
or real information about how the accident occurred. (RR6:183). He could not

possibly have known who was at fault in the accident, as all he knew about the

accident came from information provided by Mr. Leal. The fact of the matter is, the

jury disbelieved UPS’s evidence and believed the Rankins’ evidence. That is a job

that is uniquely within the province of the jury and their verdict should not be

disturbed.

G.     The Trial Court correctly denied UPS’s Motion for Directed Verdict and
       correctly refused to instruct the jury regarding the alleged effect of
       compliance with applicable parking laws.

       The complaints raised by UPS in its final, catch-all section are all reviewed

for an abuse of discretion by the trial court. All the contentions in this section are

based on UPS’s erroneous interpretation of “residences” and “residence district,”

which has been addressed above. The trial court did not err in failing to instruct the

jury as requested by UPS because the jury found that UPS did not comply with the

applicable parking laws. (CR2:194-95).

       Moreover, the trial court’s decision to refuse UPS’s requested instruction

regarding Mr. Leal’s alleged compliance with the applicable parking rules was not

an abuse of discretion. 17 The Texas Pattern Jury Charge does not contain any such

instruction. Instead, UPS relies upon Section 288C of the Restatement (Second) of



17
  The trial court was further justified in refusing to submit this instruction as it would constitute
an improper comment on the weight of the evidence.
                                           Page 54 of 58
Torts for this proposition. UPS told the trial court and now tells this Court that a

Texas court has adopted that section. (Appellants’ Brief at 69). That statement is

patently untrue.

      The case cited by UPS as having adopted Section 288C of the Restatement

(Second) of Torts is Moore v. Brunswick Bowling & Billiards Corp., 853 S.W.2d

842 (Tex. App.—Houston [1st Dist.] 1993), rev’d on other grounds, 889 S.W.2d 246

(Tex. 1994). That case was focused on whether the Federal Boating Safety Act of

1971 preempted the plaintiff’s state common law claims. Id. at 843-46. The court

determined that it did. Id. at 846.

      One justice dissented, and would have held that the common law claims were

not preempted.     Id. at 846-50.     The dissent referenced Section 288C of the

Restatement (Second) of Torts the discussion of why that justice disagreed with the

majority holding that the claims were preempted. Id. at 848. That is far from being

adopted by a Texas court. It is the very opposite of it. Counsel for the Rankins has

been unable to locate any other reported decision from a Texas court that even

references Section 288C of the Restatement (Second) of Torts.

      In addition, Section 288C of the Restatement (Second) of Torts was

referenced by the dissent in Moore for the proposition that “[c]ompliance with

regulatory standards may be admissible on the issue of care but does not require a

jury to find a defendant's conduct reasonable.” Id. As discussed above, UPS was


                                      Page 55 of 58
allowed to introduce evidence that Mr. Leal did not receive a citation and Sergeant

Allison did not believe he violated the parking laws, and it argued that fact at some

length to the jury during closing arguments. 18 (RR8:124; RR10:140-42). The trial

court admitted evidence of Mr. Leal’s alleged compliance with the regulatory

standards and did not abuse its discretion in refusing to submit the requested

instruction to the jury. The jury, however, did not believe he complied with the

Texas Transportation Code, making the point moot.

                                       VI. PRAYER

       Wherefore, premises considered, Appellees request that the Court of Appeals

affirm the judgment below, award them their costs of court incurred herein, and for

such other and further relief, general or special, at law or in equity, to which they

may show themselves justly entitled.




18
  The jury also heard evidence that Sergeant Allison was not familiar with the Transportation
Code sections and was not applying them to reach his conclusion that Mr. Leal did not violate the
parking laws. (RR8:126, 139).
                                          Page 56 of 58
          Respectfully submitted,

          THE PERRIN LAW FIRM
          1910 Pacific Avenue, Suite 6050
          Dallas, Texas 75201
          Telephone: (214) 646-2004
          Facsimile: (214) 646-6117
          Email: dougperrin@perrinlaw.org
                  markperrin@perrinlaw.org

          /s/J. Mark Perrin
          Doug Perrin
          State Bar No. 15796520
          J. Mark Perrin
          State Bar No. 24013313

          REESE GORDON MARKETOS
          750 N. St. Paul Street, Suite 610
          Dallas, Texas 75201
          Telephone: (214) 382-9810
          Facsimile: (214) 501-0731
          Email: pete.marketos@rgmfirm.com

          /s/Pete Marketos
          Pete Marketos
          State Bar No. 24013101

          KEELING & DOWNES, P.C.
          1500 McGowen Street
          Houston, Texas 77004
          Telephone: (832) 214-9900
          Fax: (832) 214-9908
          Email: bck@keelingdownes.com

          /s/Byron Keeling
          Byron Keeling
          State Bar No. 11157980

          ATTORNEYS FOR
          APPELLEES
Page 57 of 58
                     CERTIFICATE OF COMPLIANCE

      The undersigned hereby certifies on this the 30th day of January, 2015 that,
according to the word count of the computer program used to prepare the document,
Appellees’ Brief contains 14,396words.

                                              /s/J. Mark Perrin


                        CERTIFICATE OF SERVICE

      This will certify that a true and correct copy of the above and foregoing
document was forwarded to all counsel of record in the above cause through the
Court’s electronic case filing system, on this the 30th day of January, 2015.

Ricardo Reyna
Audrey A. Haake
Brock, Person, Guerra, Reyna P.C.
17339 Redland Road
San Antonio, Texas 78247

W. Randall Bassett
Bradley W. Pratt
King & Spalding, LLP
1180 Peachtree Street, NE
Atlanta, Georgia 30309

H. Victor Thomas
King & Spalding, LLP
1100 Louisiana, Suite 4000
Houston, Texas 77002


                                              /s/J. Mark Perrin




                                    Page 58 of 58
