holding evidence was factually insufficient to support jury’s finding that mother bore zero responsibility for eighteen-month-old child’s injuries caused by deployment of air bag where mother, despite her knowledge that backseat was safest place for a young child, placed child in front passenger seat
How later courts described this case
- holding evidence was factually insufficient to support jury’s finding that mother bore zero responsibility for eighteen-month-old child’s injuries caused by deployment of air bag where mother, despite her knowledge that backseat was safest place for a young child, placed child in front passenger seat
- holding that a government contractor hired for highway construction work was not entitled to share in the state’s sovereign immunity when the contractor exercised considerable discretion in maintaining the construction site where the plaintiffs injury occurred
- considering contract as well as testimony regarding contractor’s responsibilities when considering whether contractor had immunity
Written by the judges who cited it.
The opinion
CATHERINE STONE, Justice,
concurring and dissenting.
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. *332 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.” Op. at 330. 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.