Plaintiff places a spare tire on top of four 5-gallon buckets of hydrolic oil in the bed of his pickup truck. He does not secure the tire. Later that day, Defendant pulls her vehicle in front of Plaintiff’s pickup truck, causing her to collide with the front end of his truck. On impact, the spare tire is propelled forward through the truck’s rear window, stricking Plaintiff in the back of the neck and shoulder and causing him injury. Defendant admits that she was driving her mother’s vehicle without permission, she had no driver’s license, and the accident was her fault.
Plaintiff sues Defendant and Defendant asserts the affirmative defense of contributory negligence. The trial court submits the following jury question:
Did the negligence, if any, of those named below proximately cause the injuries, if any, to Defendant?
Answer “Yes” or “No” for each of the following:
a. Defendant _______________
b. Plaintiff _______________
The jury answers "Yes" for Plaintiff and "No" for Defendant and the trial court renders a take-nothing judgment. On appeal, Plaintiff complains that his negligence should not have been submitted because there was no evidence he was contributorily negligent.
The court of appeals opinion analyzes whether Plaintiff’s act in placing the loose tire in the back of his pickup truck constituted contributory negligence. The Court concludes that the spare tire did not cause the vehicular collision, but merely provided a scenario whereby Plaintiff’s injuries were enhanced or increased. Thus, the Court concludes that the Plaintiff’s negligence should not have been submitted.
The Court rejects Defendant’s argument that Plaintiff’s conduct must be considered under the umbrella of "responsibility" by virtue of the Texas Pattern Jury Charge comments that the word "injury" should be used on place of "occurrence" under circumstances such as this one. Interestingly, the Court agrees with the comment in the Pattern Jury Charge to the extent the committee intended use of the term "injury" to refer to a mitigation defense. The Court reverses the judgment and remands the case for a new trial. The opinion can be found at this link.
This opinion caused a fair amount of discussion and debate in our offices. In thinking about the fact pattern, I wonder if the Court’s analysis and answer would be any different if there was evidence that the Plaintiff would have suffered no personal injuries at all, but for the loose tire smashing through the window (i.e., the vehicles still crash and cause property damage, but no personal injuries but for the loose tire). Or better still, suppose there was testimony that the crash itself was somehow caused by the loose tire shifting around in the back of the truck, as might happen if the Defendant negligently cuts in front of the truck, Plaintiff slams on the brakes to avoid the accident, the tire is propelled forward through the back window and hits Plaintiff, causing him to release the brake and crash into the Defendant. Same result?
After reading this opinion, I was compelled to go back through my short history leading up to our current system of proportionate responsibility and reread Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 428 (Tex. 1984). I’ll share one quote from the opinion:
“the system we adopt will allow comparison of plaintiff’s conduct, whether it is characterized as assumption of risk, misuse, or failure to mitigate or avoid damages, with the conduct or product of a defendant . . .” (emphasis added)
Frankly, I don’t know if this quote clears anything up for me, but the Amarillo Court of Appeals opinion is certainly something I would want to study closely the next time I have a jury charge issue of a similar ilk.