Jessica Alexander v. Halliburton Energy Services Inc., D/B/A Halliburton and Juan Jose Salomon

Affirmed and Memorandum Opinion filed July 12, 2018.

In The

Fourteenth Court of Appeals

NO. 14-17-00485-CV

JESSICA ALEXANDER, Appellant

V.

HALLIBURTON ENERGY SERVICES INC. D/B/A HALLIBURTON AND

JUAN JOSE SALOMON, Appellees

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2015-58155

MEMORANDUM OPINION

In this personal injury case, appellant Jessica Alexander challenges the take-

nothing judgment in favor of appellees Halliburton Energy Services Inc. d/b/a

Halliburton and Juan Jose Salomon. In two issues, Alexander asserts that the trial

court reversibly erred in (1) submitting an unavoidable accident jury instruction and

(2) denying her motion for new trial or for judgment notwithstanding the verdict.

We affirm.

Background

We summarize the facts in the light most favorable to the jury’s verdict and

the judgment. See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005).

On a January morning in 2015, Salomon, a Halliburton employee driving a company

truck, was traveling behind Alexander’s car while both vehicles prepared to merge

onto Loop 337 in Comal County, Texas. Salomon was not speeding and was

following Alexander’s car at what he believed to be a safe distance. Before “getting

up to speed to blend into the freeway,” Alexander looked over her left shoulder for

oncoming traffic. Salomon similarly checked his “blind spot” for oncoming traffic.

When a third vehicle traveling in front of Alexander unexpectedly stopped at a yield

sign rather than merging onto Loop 337, Alexander also stopped. Salomon rear-

ended Alexander’s car, pushing her car into the vehicle stopped in front of her.

After the accident, Salomon pulled onto the shoulder of the road and reported

to his supervisor that he had been in an accident. Alexander also pulled over and

called 911 to report the accident. New Braunfels Police Department Officer J. Green

responded to the scene. Green’s report notes Salomon’s “fail[ure] to control speed”

and indicates that Salomon’s conduct was a contributing factor to the accident.

However, Green did not make any specific determinations regarding Salomon’s

speed or following distance, nor did he issue a citation to Salomon.

Alexander sued Salomon and Halliburton for negligence, negligence per se,

and gross negligence. She alleged that Salomon, while driving a motor vehicle in

the course and scope of his employment with Halliburton, negligently struck her

vehicle causing personal injuries. Alexander sought actual and punitive damages in

excess of $1,000,000. Salomon and Halliburton answered with a general denial and

pleaded the defense of unavoidable accident.

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The case was tried to a jury. The trial court submitted a single broad-form

negligence question, which asked the jury whether the negligence, if any, of

Halliburton or Salomon proximately cased the occurrence in question. Over

Alexander’s objection, the trial court instructed the jury that “[a]n occurrence may

be an ‘unavoidable accident,’ that is, an event not proximately caused by the

negligence of any party to the occurrence.”1

The jury answered the broad-form submission as to both Halliburton and

Salomon “No.” Alexander filed a motion for judgment notwithstanding the verdict

(“JNOV”) or for new trial. The trial court signed a take-nothing judgment in

Salomon’s and Halliburton’s favor and denied Alexander’s motion for JNOV or new

trial the same day.

This appeal timely followed.

“Unavoidable Accident” Instruction

In her first issue, Alexander contends the trial court reversibly erred in

submitting an “unavoidable accident” jury instruction because the evidence

presented at trial did not support its submission.2

1

The unavoidable accident instruction included in the court’s charge tracks verbatim that

set forth in the Texas Pattern Jury Charges. See Tex. Pattern Jury Charges: General Negligence,

PJC 3.4 (2016).

2

Alexander’s first issue conflates her jury charge complaint with a factual sufficiency

challenge:

The Trial Court erred in submitting the “unavoidable accident” jury instruction as

the evidence presented at trial does not support the “unavoidable accident” jury

instruction and the jury finding that there was zero negligence as to all parties is so

against the great weight and preponderance of the evidence that the submission of

the instruction probably caused the rendition of an improper judgment.

We will discuss the two arguments separately, addressing Alexander’s charge complaint first.

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“Determining necessary and proper jury instructions is a matter within the

trial court’s discretion, and appellate review is for abuse of that discretion.”

Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex.

2009); see also Vast Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 722

(Tex. App.—Houston [14th Dist.] 2017, no pet.). For an instruction to be proper, it

must: (1) assist the jury; (2) accurately state the law; and (3) find support in the

pleadings and the evidence. Vast Constr., 526 S.W.3d at 722 (citing Tex. R. Civ. P.

278; Hawley, 284 S.W.3d at 855-56). Alexander challenges only the third factor in

this appeal.

An unavoidable accident is “an event not proximately caused by the

negligence of any party to it.” Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995).

Providing an inferential rebuttal instruction to the jury on unavoidable accident

advises jurors that “they do not have to place blame on a party to the suit if the

evidence shows that conditions beyond the party’s control caused the accident.”

Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 432 (Tex. 2005) (citing Reinhart, 906

S.W.2d at 472).3 An instruction on unavoidable accident is “most often used to

inquire about the causal effect of some physical condition or circumstance such as

fog, snow, sleet, wet or slick pavement, or obstruction of view, or to resolve a case

involving a very young child who is legally incapable of negligence.” Reinhart, 906

S.W.2d at 472. But the instruction is not limited to only those circumstances—it

merely informs the jury that it may consider causes of the occurrence other than the

negligence of the parties. Dillard, 157 S.W.3d at 433.

Alexander contends the evidence did not warrant submission of the

unavoidable accident instruction. She relies on cases pre-dating Dillard in

3

“An inferential rebuttal defense operates to rebut an essential element of the plaintiff’s

case by proof of other facts.” Dillard, 157 S.W.3d at 430.

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advocating for a narrow view of this instruction, limiting its application to its

historical association with defendants who blame children or the weather.4 But “that

is not what it says. All it says is that accidents may be nobody’s ‘fault’ in the legal

sense.” Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 760 (Tex. 2006)

(Brister, J., concurring) (emphasis in original) (footnote omitted) (citing Dillard, 157

S.W.3d at 433). Thus, following more recent guidance from the Supreme Court of

Texas, we reject Alexander’s view, which would unduly restrict the doctrine’s

application only to limited factual circumstances. See id.; see also Dillard, 157

S.W.3d at 432-33.5

Here, we conclude that some evidence a reasonable jury could have credited

supported the submission of an unavoidable accident instruction. See, e.g., Otis

Elevator Co. v. Shows, 822 S.W.2d 59, 62 (Tex. App.—Houston [1st Dist.] 1991,

writ denied) (explaining that this instruction “is properly submitted if any evidence

shows that neither party proximately caused the accident in question”). See

generally Hill v. Winn Dixie Tex., Inc., 849 S.W.2d 802, 804 (Tex. 1992) (Hecht, J.,

4

See Hill v. Winn Dixie Tex., Inc., 849 S.W.2d 802, 803 (Tex. 1992); Yarborough v.

Berner, 457 S.W.2d 188, 190-91 (Tex. 1971); Dallas Ry. & Terminal Co. v. Bailey, 250 S.W.2d

379, 385 (Tex. 1952); Hicks v. Brown, 151 S.W.2d 790, 792 (Tex. 1942); Hukill v. H.E.B. Food

Stores, Inc., 756 S.W.2d 840, 843 (Tex. App.—Corpus Christi 1988, no writ); Leatherwood

Drilling Co. v. TXL Oil Corp., 379 S.W.2d 693, 697 (Tex. Civ. App.—Dallas 1964, writ ref’d

n.r.e.).

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This court has held that an unavoidable accident instruction was not warranted when the

defendant presented no evidence of a “non-human” event or condition that caused the plaintiff’s

injury. See Rauch v. Patterson, 832 S.W.2d 57, 61 (Tex. App.—Houston [14th Dist.] 1992, writ

denied); Brown v. Goldstein, 678 S.W.2d 539, 542 (Tex. App.—Houston [14th Dist.] 1984), rev’d

on other grounds, 685 S.W.2d 640 (Tex. 1985); Foley’s Dep’t Store v. Gardner, 588 S.W.2d 627,

629 (Tex. Civ. App.—Houston [14th Dist.] 1979, no writ). However, these cases predate Dillard

and Bed, Bath & Beyond; accordingly, we do not consider them controlling. Appellant additionally

relies on Priest v. Myers, 598 S.W.2d 359, 363 (Tex. Civ. App.—Houston [14th Dist.] 1980, no

writ). This case involved the propriety of a sudden emergency instruction, not an unavoidable

accident instruction. See id. at 363-64. Moreover, Priest also predates Dillard and Bed, Bath &

Beyond, so it does not control our analysis.

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dissenting) (disagreeing with majority that unavoidable accident instruction was

improperly submitted because the evidence raised an inference that cookie that

caused slip-and-fall accident fell to floor “without anyone’s negligence or

knowledge”). Salomon testified that, before the accident, he was not speeding, not

talking on his cell phone, not tired, and not following too closely. He explained that,

as he prepared to merge onto Loop 337, he briefly checked his “blind spot” to look

for any oncoming traffic and was unable to avoid rear-ending Alexander’s vehicle

when it came to an abrupt stop. Alexander testified that traffic on Loop 337 was

light, she was “getting up to speed to blend into the freeway,” and she stopped when

the vehicle in front of her unexpectedly stopped. She agreed that she did not know

what Salomon was doing at the time of the accident; thus, she could not testify that

he was speeding, talking on his cell phone, or following her too closely. Alexander

also agreed that she was not expecting the car in front of her to stop; instead, she

expected the driver to speed up and merge onto Loop 337. Finally, Alexander

acknowledged that, in some cases, when a driver attempts to merge onto a freeway,

briefly looks away to check for oncoming traffic, then runs into the car in front of

him that has unexpectedly stopped, the accident may not be the driver’s fault.

Regardless why the driver in front of Alexander stopped unexpectedly, the

above testimony constitutes some evidence that the accident at issue was

proximately caused by the lead vehicle’s coming to an unexpected stop rather than

Salomon’s negligence. It also supports a reasonable inference that the accident

occurred despite the fact that Salomon acted as would any ordinary driver in similar

circumstances. Subsequent to Dillard, courts of appeals have concluded that

submission of an unavoidable accident instruction is proper when some evidence

showed that something other than the defendant’s negligence caused a traffic

accident. See, e.g., Harris v. Vazquez, No. 03-07-00245-CV, 2008 WL 2309179, at

6

*3-4 (Tex. App.—Austin June 5, 2008, no pet.) (mem. op.) (unavoidable accident

instruction properly given because defendant testified his view of oncoming traffic

was obstructed by parked truck, which provided some evidence that collision was

not proximately caused by the negligence of any party); Hauschildt v. Cent. Freight

Lines, Inc., No. 10-10-00185-CV, 2011 WL 455264, at *4 (Tex. App.—Waco Feb.

9, 2011, pet. denied) (mem. op.) (no error in submitting unavoidable accident

instruction when some evidence showed defendant did not see plaintiffs’ vehicle

stopped on roadway, briefly looked away to check rear-view mirrors, and did not

have time to stop when he saw the plaintiffs’ vehicle); accord Bed, Bath & Beyond,

211 S.W.3d at 756 (“The truth is, sometimes accidents are no one’s fault, and an

unavoidable accident instruction . . . simply explains to the jury that they are not

required to find someone at fault.”); Baker v. Mast, No. 12-08-00411-CV, 2010 WL

1367739, at *3 (Tex. App.—Tyler Apr. 7, 2010, no pet.) (mem. op.) (instruction on

unavoidable accident appropriate because evidence supported defendant’s position

that accident in question was not proximately caused by the negligence of any party).

Alexander also highlights Salomon’s testimony that the accident was

“preventable” by using “proper safety techniques.” During his testimony, Salomon

agreed with Alexander’s trial counsel that the accident could have been avoided if

he had “kept a lookout for what was in front of [him and] controlled [his] speed when

the Alexander vehicle was slowing and stopping.” To the extent Alexander contends

this evidence precluded the unavoidable accident instruction, we disagree. This

particular excerpt from Salomon’s testimony may have weighed against an

instruction but the other evidence summarized above supported it. As long as some

evidence supports an unavoidable accident instruction, a trial court acts within its

discretion in submitting the instruction. Otis Elevator Co., 822 S.W.2d at 62.

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In sum, given the evidence detailed above, we cannot say the trial court abused

its discretion in submitting the unavoidable accident instruction to the jury. We

overrule Alexander’s challenge to the instruction.

Sufficiency of the Evidence

Alexander also challenges the legal and factual sufficiency of the evidence to

support the jury’s failure to find negligence as to Salomon and Halliburton.6 Based

on the asserted evidentiary insufficiency, Alexander urges that the trial court erred

in denying her motion for JNOV and motion for new trial.

To prove negligence, a plaintiff must establish duty, breach, and damages

proximately caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794

(Tex. 2006) (per curiam). “Proof that the defendant’s vehicle rear-ended the

plaintiff’s vehicle does not establish negligence as a matter of law.” Gaskey v. One

Source Sec. & Found, No. 14-07-00850-CV, 2009 WL 7047692, at *1 (Tex. App.—

Houston [14th Dist.] June 18, 2009, no pet.) (mem. op.) (citing Till v. Thomas, 10

S.W.3d 730, 733 (Tex. App.—Houston [1st Dist.] 1999, no pet.); Smith v. Cent.

Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.—Houston [14th Dist.] 1989,

writ denied)); see also Arn v. Stuart, No. 03-09-00284-CV, 2010 WL 4378395, at

*3 (Tex. App.—Austin Nov. 5, 2010, no pet.) (mem. op.) (“Texas courts have

consistently held that the mere occurrence of a rear-end automobile accident is not

of itself evidence of negligence.”). A plaintiff must still prove that the defendant’s

6

Based on the jury charge submitted, Alexander’s negligence claims against Halliburton

are necessarily premised on the negligence, if any, of Salomon. See, e.g., Rossell v. Cent. W.

Motor Stages, Inc., 89 S.W.3d 643, 656-67 (Tex. App.—Dallas 2002, pet. denied) (explaining that

causes of action for negligent entrustment or negligent hiring, like the theory of respondeat

superior, are not actionable absent a tort committed by the employee). In any event, Alexander

does not seek reversal of the judgment in Halliburton’s favor on grounds that Halliburton was

negligent independently of Salomon.

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specific acts of negligence proximately caused the plaintiff’s damages. Arn, 2010

WL 4378395, at *3; Gaskey, 2009 WL 7047692, at *1.

When reviewing the legal sufficiency of the evidence, we view the evidence

in the light most favorable to the judgment and indulge every reasonable inference

that would support it. Vast Constr., LLC, 526 S.W.3d at 719 (citing City of Keller,

168 S.W.3d at 822). We credit favorable evidence if a reasonable fact finder could

and disregard contrary evidence unless a reasonable fact finder could not. Id. If

there is more than a scintilla of evidence to support the judgment, we must uphold

it. Id. More than a scintilla of evidence exists when the evidence supporting the

finding rises to a level that would enable reasonable and fair-minded people to differ

in their conclusions. Id. We apply this standard mindful that the jury is the sole

judge of the credibility of the witnesses and the weight to be given to their testimony,

and we indulge every reasonable inference in support of the jury's findings. Id.

When reviewing the factual sufficiency of the evidence, we examine the entire

record, considering all the evidence both in favor of and contrary to the challenged

finding. Id. at 723 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). We will

overturn a finding only when it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust. Id. (citing Pool v. Ford Motor Co., 715

S.W.2d 629, 635 (Tex. 1986)).

Alexander suggests that the judgment should be reversed because the record

contains “uncontroverted” evidence that she had come to a stop and was rear-ended

by Salomon. But, as noted above, proof that a defendant’s vehicle rear-ended the

plaintiff’s vehicle does not, by itself, establish that the jury’s failure to find

negligence is unsupported by legally or factually sufficient evidence. See, e.g.,

Gaskey, 2009 WL 7047692, at *1-4 (legally and factually sufficient evidence

supported jury’s verdict of no negligence in rear-end collision case).

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Alexander also contends that the evidence of Salomon’s negligence was

“clear and uncontroverted.” As support, Alexander first points to Salomon’s

testimony that the accident was preventable had Salomon used proper safety

techniques. But Salomon also testified that he was not speeding or in a hurry, that

he was not following too closely, and that he was not distracted or talking on his cell

phone when the accident occurred. He stated that the car in front of Alexander’s car

stopped suddenly and unexpectedly when he looked away briefly to check his blind

spot for oncoming traffic, and that he consequently was unable to avoid rear-ending

Alexander’s vehicle. Moreover, Alexander confirmed that she was forced to stop

when the vehicle in front of her unexpectedly stopped. She also denied any

knowledge of what Salomon was doing at the time of the accident; thus she could

not testify that Salomon was speeding, talking on his cell phone, or following too

closely. Taken as a whole, we cannot say that Salomon’s statements cited by

Alexander established his negligence conclusively or that evidence of his negligence

was “uncontroverted.” See id. at *2-3 (driver’s statements that he was following too

closely and was probably “jointly at fault” for rear-ending a bus were “quasi-

admissions,” which constituted “merely some evidence” and were “not conclusive

upon the admitter”).

Alexander additionally points to the fact that Halliburton disciplined Solomon

by suspending him for three days without pay following the accident. But the actions

taken by Salomon’s employer after the accident do not establish that this accident

resulted from Salomon’s negligence; he was not, for instance, disciplined for talking

on his cell phone while driving, which would have violated Halliburton’s company

policy prohibiting such acts. The discipline form describes the accident as follows:

“On January 6, 2015, while on his way to location in a company vehicle, Mr.

Salomon was preparing to merge onto the highway, while checking for oncoming

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traffic and hit a vehicle from behind with a member of public.” Even assuming this

report constitutes some evidence that Salomon was at fault for this accident, it is not

conclusive so as to remove the negligence determination from the fact-finder. Nor

does Halliburton’s report, or the fact of Salomon’s post-accident discipline,

overwhelmingly outweigh the jury’s no-negligence finding.

Alexander identifies testimony by one of Salomon’s supervisors at

Halliburton, who agreed with Alexander’s trial counsel that “Salomon was following

too closely to [Alexander’s vehicle] and didn’t give himself enough time to stop.”

But Salomon’s supervisor conceded that he assumed that Salomon was following

too closely from the fact that Salomon rear-ended Alexander. As explained above,

proof that one vehicle rear-ended another does not, by itself, establish negligence.

See id. at *1-4.

Alexander cites testimony from her expert, Michael K. Napier, that Salomon

failed to keep a proper visual lookout, failed to identify a potential hazard, and was

distracted by talking on his cell phone at the time of the accident, all of which

contributed to this accident. But Napier did not personally see the accident; thus, he

could not offer any specific testimony concerning Salomon’s lookout, speed, or

following distance. He merely offered his opinion based on Alexander’s version of

the facts, which the jury could have reasonably disregarded. Further, Napier agreed

that, when merging or switching lanes, drivers must be mindful of the traffic in front

of them, as well as looking behind them. Though Napier faulted Salomon for talking

on his cell phone at the time of the accident, both Salomon and the person to whom

he made the call, his supervisor at Halliburton, stated unequivocally that Salomon

called the supervisor after the accident. Alexander offered expert testimony

concerning the time of Salomon’s call to his supervisor and the time of Alexander’s

911 call, but this evidence did not conclusively establish the time the accident

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occurred. And Napier agreed that if the jury were to conclude that Salomon was not

using his cell phone at the time of the accident, his opinions faulting Salomon for

distracted driving due to cell phone usage should be disregarded.

Finally, Alexander asserts that the police report “places fault for the wreck

solely on Salomon for failing to control his speed.” As noted above, Officer Green

noted Salomon’s “fail[ure] to control speed” and indicated that Green believed that

Salomon’s conduct was a contributing factor to the accident in his report. But Green

did not make any specific determinations regarding Salomon’s speed or following

distance in his report, nor did he issue a citation to Salomon.

In sum, instead of “uncontroverted” or overwhelming evidence of Salomon’s

negligence, our review of the record indicates that the jury was faced with conflicting

evidence. The jury, as the sole judge of the credibility of the witnesses and the

weight to be give their testimony, was entitled to believe the testimony

demonstrating that Salomon was not negligent and disbelieve Alexander’s expert

and fact testimony to the contrary. Thus, the jury’s verdict is supported by legally

sufficient evidence. The jury’s verdict is also not against the great weight and

preponderance of the evidence. See, e.g., In re Ybarra, No. 04-17-00245-CV, 2017

WL 4655347, at *3-4 (Tex. App.—San Antonio Oct. 18, 2017, orig. proceeding)

(mem. op.) (holding that trial court abused its discretion in granting motion for new

trial where jury was presented with conflicting evidence concerning rear-end

accident; defendant’s statements that he was responsible for accident were not

admission of negligence and defendant testified that the reason he did not see vehicle

he rear-ended because sun momentarily blinded him); Arn, 2010 WL 4378395, at

*1-4 (legally and factually sufficient evidence supported jury’s finding that driver

was not negligent in rear-ending car in front of her as the two attempted to merge

onto highway; driver acted with ordinary prudence when she looked over her

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shoulder to check for oncoming traffic, and when she looked back the car in front of

her had unexpectedly come to a stop and she was unable to avoid a rear-end

collision); Gaskey, 2009 WL 7047692, at *3-5 (jury’s finding of no negligence

supported by sufficient evidence despite investigating officer’s determination that

cause of rear-end collision was following driver’s failure to control speed and

driver’s testimony that he was partially at fault; driver also testified that (1) he was

not following too closely and was driving well below speed limit, (2) he believed

vehicle in front of him was going to proceed through a yellow light at intersection,

and (3) vehicle in front came to sudden and unexpected stop).

Because legally and factually sufficient evidence supports the jury’s verdict,

the trial court did not err in denying Alexander’s motion for JNOV or his motion for

new trial. Accordingly, we overrule Alexander’s second issue.

Conclusion

Having overruled both of Alexander’s appellate issues, we affirm the trial

court’s judgment.

/s/ Kevin Jewell

Justice

Panel consists of Justices Busby, Brown, and Jewell.

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