                                    NO. 07-08-0092-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                     JANUARY 7, 2009

                           ______________________________


                               DAVID BLOCK, APPELLANT

                                              V.

                              KIMBERLY MORA, APPELLEE

                         _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B33,999-0504; HONORABLE ED SELF, JUDGE

                          _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                          OPINION


       Appellant, David Block, appeals from a judgment rendered in favor of Appellee,

Kimberly Mora, following a jury trial of his personal injury cause of action arising out of a

collision between the vehicle being driven by Mora and Block’s pickup truck. Block

presents five points of error, restated in three issues: (1) Was the evidence legally and

factually sufficient to support the jury’s verdict?; (2) Did the trial court erroneously charge
the jury on comparative fault?; and (3) Did Block conclusively establish Mora’s negligence

and his damages? Finding error in the submission of the court’s charge, we reverse and

remand.


                                   Factual Background


       Block’s petition alleged he was driving westbound on Olton Road near an

intersection with Wal-Mart’s parking lot in Plainview, Texas, when Mora’s vehicle collided

with his pickup truck after she exited the parking lot onto Olton Road. In response, Mora

filed a general denial and asserted two affirmative defenses – contributory negligence and,

alternatively, unavoidable accident.


       Block’s claim was tried in a two day, jury trial. The testimony at trial indicated that,

before leaving his house for work the day of the accident, Block placed a spare tire atop

four, five gallon buckets of hydraulic oil in the bed of his pickup truck. He did not secure

the tire. Later that day, while returning home from work via Olton Road, Block was driving

approximately forty-five miles per hour. As he approached the intersection of Olton Road

and the Wal-Mart parking lot, Mora pulled her vehicle in front of him, causing her vehicle

to collide with the front end of his pickup truck. On impact, the spare tire flew forward,

knocking out the pickup truck’s rear window and striking Block in the back of the neck and

shoulder while pushing him against the steering wheel. Block, his wife, and an expert

damages witness testified as to the nature and extent of his injuries.



                                              2
        Mora testified that, when the accident occurred, she was driving her mother’s vehicle

without permission and had not obtained a driver’s license. She admitted that the accident

was her fault.1 After Block rested his case-in-chief, Mora put on a single witness to rebut

Block’s damages evidence and rested.


        At the jury charge conference, the trial court proposed submission of the Texas

Pattern Jury Charges2 standard broad form, joint submission of negligence and proximate

cause3 as Question No. 1, and proportionate responsibility4 as Question No. 2.

        1
          Mora’s counsel conceded in voir dire, opening argum ent, and a sidebar conference with the trial court
that Mora was an inexperienced, unlicensed driver who had a duty to yield the right of way at the intersection
and failed to do so before she collided with Block. He further represented to the trial court that she did not
dispute liability.

        2
          Texas Pattern Jury Charges (2008). References herein to the PJC are references to the 2008
Edition of Texas Pattern Jury Charges.

        3
            PJC 4.1 Broad Form-Joint Subm ission of Negligence and Proximate Cause

        QUESTION _____

        Did the negligence, if any, of those nam ed below proxim ately cause the [occurrence] [injury]
        [occurrence or injury] in question?

        Answer “Yes” or “No” for each of the following:

        a.        Don Davis       ____________________

        b.        Paul Payne      ____________________

        4
            PJC 4.3 Proportionate Responsibility

        If you answered “Yes” to Question[s] __[applicable liability question(s)] for m ore than one of
        those nam ed below, then answer the following question. Otherwise, do not answer the
        following question.

        Assign percentages of responsibility only to those you found caused or contributed to cause
        the [occurrence] [Injury] [occurrence or injury]. The percentages you find m ust total 100
        percent. The percentages m ust be expressed in whole num bers. The percentage of
        responsibility attributable to any one is not necessarily m easured by the num ber of acts or
        om issions found. The percentage attributable to any one need not be the sam e attributed

                                                       3
Furthermore, the trial court proposed the use of the term injury in both questions. Block’s

counsel objected to the submission of the two questions, asserting that Mora had admitted

fault and there was no evidence that he was contributorily negligent in causing the

accident. In lieu thereof, Block proposed an instruction that stated: “Kimberly Mora has

admitted that her negligence proximately caused the occurrence in question.” Alternatively,

Block requested that the term occurrence be substituted for the term injury in Question No.

1.


       The trial court overruled his objections, denied the alternative instruction, and

charged the jury, in pertinent part, as follows:


       JURY QUESTION NO. 1
       Did the negligence, if any, of those named below proximately cause the
       injuries, if any, to David Block?


       Answer “Yes” or “No” for each of the following:
       a. Kimberly Mora                        _____________
       b. David Block                          _____________



       to that one in answering another question.

       QUESTION _____

       For each person you found caused or contributed to cause the [occurrence] [Injury]
       [occurrence or injury], find the percentage of responsibility attributable to each:

       a.      Don Davis       _______________%

       b.      Paul Payne      _______________%

               Total                  100           %

                                                    4
        Because, in answering Question No. 1, the jury answered “no” to subpart “a” and

“yes” to subpart “b,”5 the jury was not required to answer Question No. 2. When asked in

Question No. 3, “[w]hat sum of money, if paid in cash, would fairly and reasonably

compensate David Block for his injuries, if any, that resulted from the collision,” the jury

awarded no damages. Thereafter, the trial court entered a judgment that Block take

nothing by his suit and awarded costs to Mora. In Block’s subsequent motion for judgment

notwithstanding the verdict, he re-urged his objections made during the jury charge

conference. The trial court denied his motion and this appeal followed.


                                               Discussion


        Block asserts that the evidence at trial supported judgment in his favor because

Mora’s negligence was established as a matter of law, and there was no evidence

indicating he was contributory negligent and/or proximately caused the accident or his

injuries. As such, he asserts the trial court erred in giving comparative fault instructions to

the jury and/or denying his motion for judgment notwithstanding the verdict.                           Block

preserved his legal sufficiency issues for appeal by timely objecting to the submission of

the comparative fault instructions and filing his motion for judgment JNOV. See Dunnagan

v. Watson, 204 S.W.3d 30, 45 (Tex.App.–Fort Worth 2006, pet. denied).




        5
          The charge form returned to the trial court by the jury indicates they first answered subpart “b” by
writing “100%,” then m arked through the answer and wrote “yes.”

                                                      5
       I.     Jury Charge Error


       We will first address Block’s contentions pertaining to jury charge error because that

issue is potentially dispositive of the appeal. See Tex. R. App. P. 47.1.


              A.     Standard of Review


       The standard of review applicable to a complaint pertaining to an alleged error in

submission of the court’s charge to the jury depends upon the particular aspect of the

charge about which the complaint is being made. See W. Wendell Hall, Standards of

Review in Texas, 38 St. Mary’s L. J. 195-200 (2006). In this case, Block is contending that

the evidence was not legally sufficient to support the trial court’s decision to submit

comparative negligence to the jury. Alternatively, he contends that the trial court erred in

submitting the comparative negligence question using the term injuries, when it should

have submitted the question using the term occurrence. Because the determination of

whether or not a legal duty exists under a given set of facts to warrant the submission of

a comparative negligence question is essentially a question of law, it is reviewable de novo.

See Murray v. Murray, No. 02-08-031-CV, 2008 WL 5265048, at *2 (Tex.App.–Fort Worth,

Dec. 18, 2008, no pet. h.); Webb v. City of Lubbock, 380 S.W.2d 135, 136

(Tex.Civ.App.–Amarillo 1964, writ ref’d n.r.e.).


       When conducting a de novo review, an appellate court exercises its own judgment

and redetermines each issue of fact and law. Quick v. City of Austin, 7 S.W.3d 109 (Tex.


                                             6
1998). In such a review, the appellate court accords the trial court no deference. See

State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). Accordingly, the issue is, given the facts and

circumstances of this case, was the evidence sufficient to support the submission of a

comparative negligence question to the jury?


                 B.       Broad Form Submission


        Rule 277 of the Texas Rules of Civil Procedure requires a trial court, whenever

feasible, to submit a claim or cause of action upon broad form questions. Furthermore, the

court is required to submit such instructions and definitions as are necessary and proper

to enable the jury to render a verdict based upon the appropriate law and the evidence

presented. See Tex. R. Civ. P. 277, 278.


                 C.       Comparative Fault


        Because comparative responsibility involves measuring the parties’ comparative

fault in causing plaintiff’s injuries, it necessitates a preliminary finding that the plaintiff was

in fact contributorily negligent.6 Kroger Co. v. Keng, 23 S.W.3d 347, 351 (Tex. 2000). See


        6
          Evidence that a plaintiff failed to m itigate his dam ages m ay warrant a m itigation of dam ages
instruction as opposed to a com parative negligence quesiton. See Elbaor v. Smith, 845 S.W .2d 240, 245
(Tex. 1992) (a plaintiff’s failure to follow doctor’s orders post-accident entitles defendant to m itigation
instruction); Moulton v. Alamo Ambulance Serv., Inc., 414 S.W .2d 444, 448-49 (Tex. 1967) (m itigation
instruction proper where plaintiff’s failure to follow com petent m edical advice aggravated or enhanced the
injuries he sustained in a collision); Young v. Thota, M.D., ___ S.W .3d ___, N o. 02-05-350-CV, 2008 W L
4938314, at *4-5 (Tex.App.–Fort W orth Nov. 20, 2008, no pet. h.) (m itigation instruction proper if patient failed
to follow post-adm ission instructions). W hile m itigation arises from the injured party’s separate duty to act
reasonably in reducing his dam ages after they are incurred, contributory negligence asks whether the plaintiff
was the proxim ate cause of the original incident upon which suit was filed. Hygeia Dairy Co. v. Gonzalez, 994
S.W .2d 220, 226 (Tex.App.–San Antonio 1999, no pet.). Mora did not plead or assert a m itigation defense.

                                                        7
Moore v. Kitsmiller, 201 S.W.3d 147, 151 (Tex.App.–Tyler 2006, no pet.); Howard v.

Bachman, 524 S.W.2d 414, 416 (Tex.Civ.App.–Eastland 1975, no writ). Contributory

negligence contemplates an injured person’s failure to use ordinary care in regard to his

or her own safety, Parker v. Highland Park, Inc., 565 S.W.2d 512, 520 (Tex. 1978), and

requires proof that the plaintiff was negligent and that the negligence was the proximate

cause of his or her injuries. See Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223

(Tex. 1988). The standards and tests for determining contributory negligence are the same

as those for determining negligence and the rules of law applicable to the former are

applicable to the latter. Moore, 201 S.W.3d at 151.


       Submission to the jury of a comparative fault question is not allowed “without

sufficient evidence to support the submission.” See Tex. Civ. Prac. & Rem. Code Ann. §

33.003(b) (Vernon 2006). As discussed in footnote one, there is no question that the

evidence was sufficient to support the submission of Mora’s negligence. The question is,

was there sufficient evidence to support the submission of Block’s negligence? To

determine whether legally sufficient evidence supported the submission of Block’s

negligence to the jury in a comparative fault question, we must first examine the record for

evidence supporting his negligence and ignore all evidence to the contrary. See Elbaor

v. Smith, 845 S.W.2d 240, 243 (Tex. 1992).




                                             8
                         Block’s Negligence and Proximate Cause


        Mora contends Block was negligent in placing his spare tire atop the hydraulic oil

cans in the bed of his pickup truck and that such negligence proximately caused his injuries

when the spare tire struck him during the collision. In support, she cites Block’s testimony

that he failed to secure the tire on the truck bed when he left home for work the day of the

accident. As a result, she contends that, while Block may not have caused the collision,

he was contributorily negligent in causing his injuries. At trial, the defendant bears the

burden of proving that the plaintiff was contributorily negligent by a preponderance of the

evidence. McDonald v. Dankworth, 212 S.W.3d 336, 340 (Tex.App.–Austin 2006, no pet.).


        Mora failed to meet that burden by failing to establish that, by placing the unsecured

spare tire in the back of his truck, Block committed an intrinsically harmful act or breached

a legal duty to Mora or to the public at large. See Elbaor, 845 S.W.2d at 245. Block’s

omission cannot constitute contributory negligence in the absence of a breach of some

legal duty. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006); May v. Barton’s

Pump Service, Inc., 153 S.W.3d 469, 476 (Tex.App.–Amarillo 2004, no pet.). Furthermore,

there was no evidence that Block was cited for any traffic violation due to the collision,7 nor


        7
         That Block was not cited com ports with Texas traffic law which regulates only the transportation of
“loose m aterial” defined as follows:

        Material that can be blown or spilled from a vehicle because of m ovem ent or exposure to air,
        wind currents, or other weather. The term includes dirt, sand, gravel, refuse, and wood chips
        but excludes agricultural product in its natural state.

Tex. Transp. Code Ann. §§ 725.001, 725.021 (Vernon Supp. 2008).

                                                      9
did Mora cite any traffic law violated by Block. The uncontroverted testimony at trial

indicated Block had driven his pickup truck with the fifteen pound spare tire in its bed to

and from work at forty-five miles per hour without incident until Mora collided with his

pickup truck. Under these circumstances, it cannot be said that Block engaged in a

negligent act by placing the spare tire in the bed of his pickup truck.


       Furthermore, proximate cause is comprised of two elements – cause in fact and

foreseeability. Leitch v. Hornsby, 935 S.W.2d 114, 118-19 (Tex. 1996); City of Gladewater

v. Pike, 727 S.W.2d 514, 517 (Tex. 1987). A “negligent act or omission is not a cause in

fact unless ‘but for the conduct the accident would not have happened.’” Williams v.

Steves Indus., Inc., 699 S.W.2d 570, 575 (Tex. 1985) (quoting Kerby v. Abilene Christian

College, 503 S.W.2d 526, 528 (Tex. 1973)). If the accident would have occurred even if

the injured party had taken the required precautions, his failure to do so cannot be a

substantial factor in bringing about the accident. RESTATEMENT (SECOND) OF TORTS

§ 432(1) cmt. b (1965). Cause in fact is established when the act or omission was a

substantial factor in bringing about the occurrence, and without it, the event would not have

occurred. See IHS Cedars Treatment Center of DeSoto, Texas, Inc. v. Mason, 143

S.W.3d 794, 799 (Tex. 2003).


       Block’s failure to secure the spare tire did not cause the vehicular collision; nor did

it cause the spare tire to suddenly fly forward and crash into the cab of his pickup truck.

The unsecured spare tire merely provided a scenario in which Block’s injuries were


                                             10
potentially enhanced or increased. Mora failed to produce any evidence that but for

Block’s conduct the accident would not have happened. Having failed to establish that

Block’s conduct was a cause in fact, Mora failed to establish proximate cause.


       Here, regardless of whether Block secured the spare tire, the accident would have

occurred. Having failed to preliminarily establish that Block was contributorily negligent in

causing the accident, Mora was not entitled to the submission of a comparative negligence

question. Accordingly, the trial court erred in submitting Question Nos. 1 and 2.


       II.    Enhanced or Increased Injuries


       Mora contends the trial court did not err in submitting Question Nos. 1 and 2

because Block’s conduct caused his injuries to be enhanced or increased. Whether

Block’s failure to secure the tire in the pickup truck’s bed enhanced or increased his injuries

suffered in the accident is of no moment as to the issue of comparative negligence. Under

Texas law, the concept of comparative negligence has “no application to a plaintiff’s

actions which antedate the defendant’s negligence.” See King Son Wong v. Carnation

Company, 509 S.W.2d 385, 387 (Tex.App.–Houston [14th Dist.] 1974), aff’d, 516 S.W.2d

116 (Tex. 1974) (holding that persons whose negligence did not contribute to an

automobile accident should not have the damages awarded to them reduced or mitigated

because of their failure to wear available seat belts).




                                              11
        In Kerby, 503 S.W.2d at 527, a linen truck driver appealed a jury verdict wherein he

was found to be thirty-five percent at fault for his injuries because, on impact with a school

bus, he was thrown through an open sliding door of the truck and, then, the truck toppled

over him. Reversing the trial court and court of appeals, the Supreme Court held that the

truck driver’s conduct of driving with the door open did not constitute contributory

negligence because it did not contribute to the accident; rather, it only provided a scenario

in which the injuries suffered in the accident were enhanced or increased. Id. at 528.

Finding that the trial court had no authority to submit comparative negligence issues to the

jury and no evidence supported the jury’s answers favoring the defendant, the Kerby Court

stated:


        [W]e draw a sharp distinction between negligence contributing to the
        accident and negligence contributing to the damages sustained.
        Contributory negligence must have the causal connection with the accident
        that but for the conduct the accident would not have happened. Negligence
        that merely increases or adds to the extent of the loss or injury occasioned
        by another’s negligence is not such contributory negligence as will defeat
        recovery.


Id. at 528 (emphasis added).8 See also Elbaor, 845 S.W.2d at 244-45 (post-accident

conduct aggravating plaintiff’s injuries); Haney Electric Company v. Hurst, 624 S.W.2d 602,

611 (Tex.App.–Dallas 1981, writ dism’d) (purported negligence in carrying a gasoline can




        8
          The Kerby Court further indicated that, “[e]ven if there were proof that the particular injury suffered
would not have been suffered had Kerby avoided being thrown from his truck, it would not support the jury’s
finding of percentage contribution.” 503 S.W .2d at 529.

                                                       12
in trunk of a car is a circumstance enhancing damages rather than a circumstance causing

the accident and, therefore, not an appropriate ground of contributory negligence).


       III.   Pattern Jury Charge


       Mora further contends there was sufficient evidence demonstrating that Block’s

negligence was “injury-causing” or “injury-enhancing” to support the trial court’s submission

of Question No. 1. In support, she relies on comments to PJC 4.1, the broad form

instruction upon which the trial court based Question No. 1. The comments for PJC 4.1

provide, in pertinent part, as follows:


       Use of “occurrence” or “injury.” The use of “occurrence” or “injury” in this
       question, as well as in PJC 4.3, could affect a case in which there is
       evidence of the plaintiff’s negligence that is “injury-causing” or
       “injury–enhancing” but not “occurrence–causing”: for example, carrying
       gasoline in an unprotected container, which exploded in the crash, greatly
       increasing the plaintiff’s injuries (preaccident negligence), or failing to follow
       doctor’s orders during recovery, thereby aggravating the injuries
       (postaccident negligence). In such a case the jury should not consider this
       negligence in answering PJC 4.1 and 4.3 if “occurrence” is used, while it
       should consider the negligence if “injury” is used.


Comm. On Pattern Jury Charges, State Bar of Texas, Pattern Jury Charges PJC 4.1 cmt.

(2008).


       To the extent Mora asserts that these comments can be interpreted to support a trial

court’s application of PJC 4.1 under circumstances such as exist in this appeal, we

disagree. Proportionate responsibility questions, such as PJC 4.1 and 4.3, are appropriate


                                              13
when the defendant has met his burden of proof on contributory negligence. That the

plaintiff engaged in conduct prior to the accident that somehow increased or added to the

extent of his loss or injury does not establish contributory negligence as to the occurrence,

i.e., but for his negligence, the accident would not have occurred. See Carnation Co. v.

Wong, 516 S.W.2d 116, 117 (Tex. 1974) (failure to wear seatbelt does not permit reduction

or mitigation of plaintiff’s damages); Kerby, 503 S.W.2d at 528 (driving with the van door

open, thereby contributing to nature and extent of injuries, does not permit reduction of his

damages); Haney, 624 S.W.2d at 611 (plaintiff’s placement of a gas can in the rear of her

vehicle prior to a rear-end collision is not evidence of contributory negligence). See also

Goldberg v. Dicks, No. 12-02-00053-CV, 2004 WL 253250, at *15-16 (Tex.App.–Tyler

February 11, 2004, pet. denied) (not designated for publication) (although plaintiff was

thrown from an open truck bed on impact with defendant’s truck, plaintiff was not

contributorily negligent); Price v. Arkansas Freightways, Inc., No. 12-01-00050-CV, 2002

WL 1065875, at *6 (Tex.App.–Tyler March 22, 2002, pet denied) (not designated for

publication) (trial court erred by including a passenger riding in the trunk of a vehicle that

was struck from behind in a jury instruction asking whose negligence caused the

occurrence).9 Cf., Williams v. Steves Industries, Inc., 699 S.W.2d 570, 575 (Tex. 1985)

        9
           Although the Price Court would have withheld from the jury the question whether plaintiff’s act of
riding in the trunk caused the occurrence pursuant to the Texas Suprem e Court’s pronouncem ent in Kerby,
the Price Court reached an anom alous result on causation related to plaintiff’s injuries, i.e., the Price Court
upheld a jury determ ination that plaintiff was negligent and caused his injuries. 2002 W L 1065875, at *5-6.
In doing so, the Price Court did not discuss Kerby and/or its progeny; id., and the unpublished opinion has not
been cited as support in any subsequent case. Unpublished cases such as Price m ay be cited but they have
no precedential value. Tex. R. App. P. 47.7. See Associates Home Equity Services Co., Inc. v. Hunt, 151
S.W .3d 559, 562 n.2 (Tex.App.–Beaum ont 2004, no pet.); Brinker Texas, L.P. v. Looney, 135 S.W .3d 280,
285 n.4 (Tex.App.–Fort W orth 2004, no pet.).

                                                      14
(some evidence of cause in fact where plaintiff’s conduct, i.e., running out of gas in the

middle of the road, contributed to the occurrence, to-wit: being struck from behind, because

jury could infer that had the car not stalled in the middle of the highway, defendant would

not have collided with it).


       Further, to the extent the Committee on Pattern Jury Charges intended the terms

“occurrence–causing” to describe a contributory negligence defense and “injury-enhancing”

to represent a mitigation defense, we agree with the use of these terms in the comment

to PJC 4.1. However, we find no Texas cases recognizing the use of proportionate

responsibility questions where a defendant is the sole cause of an accident or occurrence

but asserts the plaintiff caused his injuries, i.e., “injury–causation.” If, but for the plaintiff’s

negligence, the accident would not have occurred then, depending upon the jury’s findings,

the plaintiff either partially or wholly caused the accident and the injuries attendant thereto.

Stated conversely, if the accident would have occurred regardless of the plaintiff’s

negligence then the plaintiff is not proportionately responsible for the accident. See Kerby,

503 S.W.2d at 528.


       The comments to PJC 4.1 appear to endorse the use of a proportionate

responsibility question under circumstances where a plaintiff is “carrying gasoline in an

unprotected container which explodes in the crash, greatly increasing the plaintiff’s injuries

(preaccident negligence).” These facts are similar to those in Haney Electric Company,

624 S.W.2d at 602, where the appellate court reached the opposite result. In Haney, the


                                                15
appellate court determined that the preaccident placement of a gas can by plaintiff in the

rear of her car prior to a multi-vehicle accident wherein her car was struck from the rear

could not be relied upon by the defendant as evidence of contributory negligence. Id. at

611.10 Accordingly, we do not find the Committee’s comments persuasive under the

circumstances presented in this appeal.


         Block met his burden of proof establishing Mora was negligent in causing the

collision. The evidence at trial established she had a duty to yield the right of way to Block,

failed to do so and, as a result, collided with Block’s pickup truck. At trial, Mora admitted

she was at fault. Thereafter, it was incumbent upon Mora to establish her affirmative

defense, i.e, that Block was contributorily negligent. She failed to do so. As such, Mora

is liable to Block for any injuries he may have sustained resulting from her failure to yield

the right of way. See 28 Tex.Jur.3d Damages § 2 (2006).


         Having determined Block met his burden of proof and Mora failed to come forward

with any evidence to establish Block was contributorily negligent, we sustain Block’s

second and third points of error pertaining to jury charge error. Because we find the

evidence supporting the submission of Block’s contributory negligence to be legally


         10
             The Haney court did perm it evidence of the gas can’s placem ent to be introduced for the purpose
of determ ining the chain of events of the m ulit-vehicle collision leading to plaintiff’s death, i.e., whether
plaintiff’s injuries were proxim ately caused by a second plaintiff, the driver of a postal truck who struck her car
from the rear, or by the defendant, the driver of a sem i-tractor trailer who struck the postal truck from the rear.
624 S.W .2d at 608. The evidence was relevant to determ ine whether the driver of the postal truck or the
sem i-tractor trailer proxim ately caused plaintiff’s injuries, not whether plaintiff caused her own injuries. Id. at
604 (evidence indicated that, not only was the plaintiff’s vehicle afire, but the postal truck also burst into flam es
on being struck by the sem i-tractor trailer).

                                                         16
insufficient, we find the trial court erred in submitting Question Nos. 1 and 2, and we

proceed with a harm analysis.


       IV.    Harm Analysis


       When a single broad-form liability question erroneously commingles valid and invalid

liability theories and an appellant’s objection is timely and specific, the error is harmful

when it cannot be determined whether the improperly submitted theories formed the sole

basis for the jury’s finding. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000).

Here, the trial court submitted two competing theories of liability within one broad-form

liability question that asked whether the negligence of the two parties involved in the

accident caused the plaintiff’s injuries.    The jury’s answers, finding no negligence

attributable to Mora and finding Block as the only responsible party, commingled Block’s

valid theory of negligence with Mora’s invalid theory of comparative negligence. Because

we cannot determine whether the jury truly found that Mora was not negligent in causing

the accident or Block was solely negligent in causing his injuries (both of which findings

would be against the great weight and preponderance of the evidence), we find the

submission of Question Nos. 1 and 2 likely caused the rendition of an improper judgment.

As such, the error was not harmless. Tex. R. App. P. 44.1(a)(1).


       Because our finding of error requires that this cause be reversed and remanded,

and because we may not order a separate trial solely on unliquidated damages where



                                            17
liability is contested, Block’s remaining points of error are pretermitted. Tex. R. App. P.

44.1(b) and 47.1.


                                       Conclusion


       We reverse the judgment of the trial court and remand the cause for further

proceedings in conformance with this opinion.



                                                 Patrick A. Pirtle
                                                     Justice




                                            18
