Bay, Inc. v. Randy and Rebecca Ramos, Individually and as Next Friends of Erika Ramos, A Minor, and Randy Ramos, Jr., A Minor and Melinda Garcia--Appeal from 79th Judicial District Court of Jim Wells County

CONCURRING AND DISSENTING OPINION
No. 04-02-00196-CV
BAY, INC.,
Appellant
v.
Randy and Rebecca RAMOS, Individually and as Next Friends of Erika

and Randy Ramos, Jr., Minor Children,
Appellees
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 98-02-36425
Honorable Stan Pemberton, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Concurring and Dissenting opinion by: Catherine Stone, Justice; joined by Chief Justice Alma L. L pez and Justice Phylis J. Speedlin

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

David Puryear, Justice (1)

Delivered and Filed: March 24, 2004

At approximately 8:30 p.m. on the evening of September 27, 1997, Rebecca Ramos seated her two sleepy young children in the front seat of a car for a quick trip home from their grandparents' house. The car, a rental vehicle that Rebecca had driven only one other time, was equipped with air bags. Within a few minutes of her journey, Rebecca was involved in an automobile accident that all parties agree was not caused by Rebecca in any way. At the ensuing trial, Rebecca testified that she did not understand what an air bag could do upon deployment. She also testified, however, that she knew the best place for her young children was in the back seat of the car. A jury in Jim Wells County heard this testimony and determined that Rebecca was not guilty of negligence that "proximately cause[d] the occurrence or injury" to her children. The majority concludes that "evidence that Rebecca's actions caused, or contributed to, Erika's injuries outweighs any finding of zero responsibility on Rebecca's part for those injuries." Slip op. at 13-14. I respectfully dissent from this conclusion.

As to Rebecca, the jury was told that "'Negligence' means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances." The jury was also instructed that proximate cause "means that cause which, in a natural and continuous sequence, produces an event, and without which such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using the degree of care required of him would have foreseen that the event, or some similar event, might reasonably result therefrom."

The record contains no evidence that Rebecca was legally obligated to place her young children in the back seat of the car. Nor is there any evidence that in 1997 a person of ordinary prudence would not have placed two young children in the front seat of a car, or that in 1997 a person of ordinary prudence would have foreseen that the failure to place children in the back seat would or could lead to the type of devastating injuries suffered by Erika. The jury determined that Rebecca was not negligent, and although we may sharply disagree with the jury's conclusion, based on this record, we are not free to disregard their conclusion. See Cruz ex. rel. Cruz v. Paso Del Norte Health Found., 44 S.W.3d 622, 646 (Tex. App.--El Paso 2001, pet. denied)(refusing to sit as thirteenth juror); Gainsco County Mut. Ins. Co. v. Martinez, 27 S.W.3d 97, 108 (Tex. App.--San Antonio 2000, pet. dism'd by agr.)(same). For this reason, I respectfully dissent from the portion of the majority opinion and judgment which reverses and remands the cause for a new trial. I concur in all other regards.

Catherine Stone, Justice

1. Justice Puryear sitting by designation of the Texas Supreme Court.