Jimmie Reinicke, Individually and as Legal Representative of the Estate of Karen Reinicke, Max L. Reinicke, Deceased and Derrick A. Reinicke, Deceased v. Aeroground, Inc.--Appeal from Probate Court No 2 of Harris County

Affirmed and Plurality, Concurring, and Dissenting Opinions filed March 22, 2005

 Affirmed and Plurality, Concurring, and Dissenting Opinions filed March 22, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-02-00680-CV

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JIMMIE REINICKE, INDIVIDUALLY AND AS LEGAL REPRESENTATIVE

OF THE ESTATES OF KAREN REINICKE, DECEASED,

MAX L. REINICKE, DECEASED, AND DERRICK A. REINICKE, DECEASED, Appellants

V.

 AEROGROUND, INC., Appellee

_________________________________________________________

On Appeal from the Probate Court No. 2

Harris County, Texas

Trial Court Cause No. 308,512 401

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D I S S E N T I N G O P I N I O N

I respectfully dissent.

My colleague has raised an issue that was not raised or argued by either party on appeal. The plurality has concluded that the Reinickes were required to request issues or instructions calculated to establish Aeroground=s liability for creating a dangerous condition on the premises in question. My colleague cites Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998), an apartment rape case, Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997), an oil well drilling employee fall case, and Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992), a grocery store slip and fall case to support this conclusion. None of the above cases support the conclusion that a plaintiff must plead, adduce evidence, and obtain affirmative findings relative to a defective condition of premises in order to establish liability for negligence against a defendant who was not, at the time of plaintiff=s injury, an owner, occupier or possessor of the premises.

The plurality fails to acknowledge that Aeroground was not an owner, occupier or possessor and did not exercise the right to control the subject premises during all times material to this suit. In a footnote, the plurality cites City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986) and properly acknowledges that the law places upon a person who creates a dangerous condition on a public highway a duty to warn of the condition. This duty to warn does not arise out of ownership, possession or control of premises. It arises, in the instant case, from leaving a trailer on premises (shoulder of the highway) owned or controlled by the State of Texas. In Page, the court acknowledged that possession and control must generally be shown in premises liability cases. Id. at 835. Here, the plurality seems to rely on the Page court=s reference, in dicta, to Strakos v. Gehring, 360 S.W.2d 787 (Tex. 1962), which was cited for the proposition that a private person who creates a dangerous condition on premises may be liable even though he was not in control of the premises at the time of the accident.

In Strakos, the plaintiff was a motorist who sued a fence contractor after stepping into a posthole located along an original fence. Id. at 788B89. The fence contractor was no longer working in the area at the time of the injury. The court rejected the Aaccepted work@ doctrine and concluded that a contractor is not immune from liability for creating a dangerous condition on property solely because his work has been completed. Id. at 790. Notably, the Strakos court did not discuss or conclude that the trial court was required to submit definitions, instructions or special issues predicated on the duties of an owner, possessor or occupier of premises prerequisite to establishing liability against the contractor who allegedly created the dangerous condition.

The plurality does not attempt to describe or explain the Reinickes= legal status relative to Aeroground and the purportedly defective premises. We are left to speculate whether the Reinickes are invitees, licensees or trespassers relative to Aeroground. Reliance on the plurality=s analysis would require the trial court to propound a question such as the following: Did Aeroground know, or in the exercise of reasonable care, should it have known about the unreasonable risk of harm posed by the trailer? I respectfully submit that Aeroground=s negligence, if any, is not measured by its knowledge of a dangerous condition. Aeroground=s knowledge of the trailer=s location on the shoulder and potential danger to others was an undisputed fact. Two of Aeroground=s employees were on the scene, attempting to remove the trailer from the shoulder of the highway seconds before the fateful impact.

The mere fact that Aeroground left its trailer sitting on the State=s right of way does not transmogrify Aeroground into a possessor, owner or occupier of the premises. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (acknowledging the difference between liability for one who controls premises versus one who creates a dangerous condition on premises). My colleague refers to a comment to Pattern Jury Charge 65.1 for the reader=s edification regarding the differences between a jury charge for negligent activity versus defective condition of premises. comm. on pattern jury charges, state bar of tex., pattern jury charges pjc 65.1 (2003). Notably, on the next page of this edition is PJC 65.2. See id. PJC 65.2. At the top of the page is the section topic: APREMISES LIABILITYCDEFINITIONS & INSTRUCTIONS.@ See id. The caption beside PJC 65.2 states as follows: ANegligence and Ordinary Care of Plaintiffs or of Defendants Other than Owners of Premises.@ See id. The definitions of ANegligence@ and AOrdinary Care@ with the exception of the precatory APaul Payne@ language are verbatim to the definitions submitted in the instant case. See id. Moreover, in AAccompanying definitions and instructions@ under PJC 66.4, the editors recommend use of the definitions under PJC 65.2 Awhen the conduct of a contributorily negligent plaintiff or defendant who is not an owner or occupier of a premises is also to be considered by the jury.@ See id. PJC 66.4. In the same edition and under the same topic, the PJC 65.4 definition of AProximate Cause@ is verbatim to the definition in the instant case. See id. PJC 65.4. The Committee on Pattern Jury Charges recognizes what the plurality refuses to acknowledge: some defendants are exposed to liability for creating dangerous conditions on premises they do not own or control, and their standard of care is not the same as the defendant who owns or controls the premises.

It is axiomatic that negligence (negligent activity) occurs by action or omission. I submit that leaving the trailer parked on the shoulder and failing to timely place emergency warning devices falls under the negligent activity rubric as omissions. The action that falls under the negligent activity rubric would be preparing to back or backing the tractor down the highway shoulder. Notwithstanding the plurality=s ruminations about the exact moment Aeroground=s negligent activity ended, a tortfeasor=s presence at the scene of an injury is not a prerequisite to establishing liability for negligence, including failure to warn. I respectfully submit that the plurality has gleaned and applied a rule which is not supported by the cited cases. Accordingly, I disagree with the plurality=s analysis and discussion of the negligent activity versus premise defect dichotomy because none of the defendants in this case owned or controlled the premises in question.

Sufficiency of The Evidence

Relative to the Reinicke=s first issue, this court must not only recite the proper standard of review for determining whether the trial court erred in granting a JNOV, it must view the evidence in a light that supports the challenged finding and disregard all evidence and inferences to the contrary. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). We must sustain the first issue if reasonable minds could reach different conclusions regarding the evidence. Tarrant Reg=l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004).

It is relatively undisputed that Aeroground=s employee parked its trailer on the highway shoulder and did not timely warn of the potentially dangerous condition by placement of warning cones required under federal law. The unexcused violation of a penal statute constitutes negligence as a matter of law if such statute was designed to prevent injuries to a class of persons to which the injured party belongs. Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982). In jury question number one, the trial court acknowledged the legal sufficiency of this undisputed evidence by instructing the jury on the statutory requirement for placement of warning devices along the roadway. After discussing the above undisputed evidence, the plurality concludes that the jury charge will not support recovery for an injury resulting from a condition that was Apreviously created by an activity.@ For the reasons stated above, I respectfully disagree. Accordingly, I would hold that there is more than a scintilla of evidence supporting assessment of negligence against Aeroground for failure to warn.

Proximate Cause

The more difficult issue for appellate resolution is whether there is more than a scintilla of evidence to support the jury=s affirmative finding that Aeroground=s negligence proximately caused injury and death to the Reinickes. Proximate cause requires both cause-in-fact and foreseeability. Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex. 1975). Cause-in-fact means that the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred. Texas and Pac. Ry. Co. v. McCleery, 418 S.W.2d 494, 497 (Tex. 1967). Foreseeability is satisfied by showing that the defendant should have anticipated the danger created for others by its negligent act or omission. Missouri Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 109 (Tex. 1977). Similar to any other ultimate fact, proximate cause may be established with circumstantial evidence. Farley, 529 S.W.2d at 755.

Pursuant to Section 392.22(b)(2)(v) of the Federal Motor Carrier Safety Regulations, Aeroground was required to place at least three warning devices behind the trailer with the following spacing: 10 feet, 100 feet and 200 feet. 49 CFR ' 392.22(b)(2)(v) (2000). Without referring to specific testimony or physical evidence in the record, the plurality concludes, there is no evidence that Afailure to put out warning triangles was a cause of the accident.@ Apparently, the plurality discounts or does not fully appreciate the multiple benefits of warning devices by concluding that Athe cause of this accident was whatever other event or condition caused the van to leave the roadway.@ I respectfully disagree with the rationale of the plurality. One primary purpose for warning devices is to provide the earliest possible warning to drivers that a vehicle is disabled. Placement of the warning devices at the required distances is pivotal to early warning that there is a hazard ahead; drivers should reduce speed and exercise caution. Such devices are calculated to reduce or eliminate any confusion regarding whether the disabled vehicle ahead is moving or stopped.

Immediately before the Reinicke vehicle struck the rear of Aeroground=s trailer, Pena was traveling ahead of Mrs. Reinicke in the right or outer lane of traffic. Pena testified that he easily saw the Aeroground trailer from his high vantage point in the seat of a tractor and observed the Reinicke vehicle pass in the right (outer) lane immediately before it came into contact with the Aeroground trailer. Kurishi, who was traveling behind the Reinicke vehicle, testified that he did not see the Aeroground trailer ahead before it was struck by the Reinicke vehicle. Truck driver Pena testified that he changed from the right (outer) lane to the center

lane of traffic as he approached the Aeroground trailer. If Kurishi could not see the Aeroground trailer until it was impacted by the Reinicke vehicle, the jury was permitted to infer that Mrs. Reinicke, traveling behind the Pena 18-wheeler, did not have an early opportunity to acknowledge or appreciate the potentially dangerous condition on the right shoulder until Pena=s tractor and trailer moved left, into the center lane of traffic.

Aeroground=s employee, Rodriguez, testified that Mrs. Reinicke=s vehicle weaved off the shoulder, then back onto the third (outer) lane and back onto the shoulder, striking the trailer in the rear. Rodriguez=s testimony is contradicted by Kurishi; however, after reviewing the entire record, this court is required to consider only the evidence and inferences that support the jury=s findings and disregard all contrary evidence. Lentz v. Lentz, 79 S.W.3d 10, 19 (Tex. 2002). This erratic movement is some evidence supporting a permissible inference that Mrs. Reinicke was startled by sudden perceived danger, a reaction that might reasonably have been avoided if the warning devices had been placed at the prescribed distance and location.

This circumstantial evidence coupled with other physical evidence, including presence or absence of skidmarks and physical location of all the vehicles on and off the highway, after the fiery collision, constitutes legally sufficient evidence to support a jury finding that Aeroground=s failure to warn proximately caused injury and death to the Reinickes. In other words, a jury could reasonably conclude that Abut for@ the failure to place warning devices prescribed by law, the impact would not have occurred. See Kerby v. Abilene Christian Coll., 503 S.W.2d 526, 528 (Tex. 1973).

The foreseeability element of proximate cause is established when the plaintiff shows that the defendant should have anticipated the dangers its negligent act or omission created for others. See Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). However, foreseeability does not require a person to anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence. Id. at 98. Here, one or more of Aeroground=s employees verbally acknowledged the potential danger. Moreover, the danger associated with a disabled trailer on the shoulder of a major highway in Houston traffic, without placement of required warning devices, is undisputable.

Regarding the movement of the Reinicke vehicle immediately before impact, the plurality ignores our Ano evidence@ standard of review by disregarding Rodriguez=s testimony in favor of Kurishi=s testimony. Moreover, the plurality fails to acknowledge the presumption in law that Mrs. Reinicke was exercising ordinary care during all times material to this action. See Boaz v. White Auto Stores, 141 S.W.2d 481, 483 (Tex. 1943). Admittedly, the presumption vanishes with Kurishi=s testimony; however, a Ano evidence@ challenge should be denied if, after reviewing the entire record, the proffered evidence rises to a level that would enable reasonable minds to differ. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994).

In conclusion, I would hold there is legally sufficient evidence to support the jury=s determination that Aeroground=s violation of Section 392.22(b)(2)(v) and failure to warn proximately caused injury and death to the Reinickes. See 49 CFR ' 392.22(b)(2)(v) (2000). Accordingly, I respectfully dissent.

/s/ Charles W. Seymore

Justice

Judgment rendered and Plurality, Concurring, and Dissenting Opinions filed March 22, 2005.

Panel consists of Justices Fowler, Edelman, and Seymore. (Edelman, J., plurality.) (Fowler, J., concurring.)