Chase Michael Richard v. Chase Langston Wiatt ( 2023 )

Affirmed and Memorandum Opinion filed April 25, 2023.
In the
Fourteenth Court of Appeals
NO. 14-22-00236-CV
CHASE MICHAEL RICHARD, Appellant
V.
CHASE LANGSTON WIATT, Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2017-51540
MEMORANDUM OPINION
In this personal-injury case arising from a motor-vehicle accident, plaintiff
Chase Richard appeals the trial court’s (a) grant of directed verdict eliminating
Richard’s gross-negligence claim, and (b) denial of Richard’s motion for judgment
notwithstanding the verdict to increase the award of past medical expenses. We
affirm.
I. BACKGROUND
On a Saturday afternoon in September 2016, appellant Chase Richard was
stopped in traffic when his vehicle was struck from behind by a car driven by
appellee Chase Wiatt. The impact pushed Richard’s car into a car driven by Karen
Punia, who, like Richard, had stopped for traffic. Witness Dalton Hernandez stated
that about a minute before the accident, he had been driving next to Wiatt when
Wiatt, who was looking down at his phone, had begun to drift into Hernandez’s lane.
Hernandez said that he honked at Wiatt but failed to get Wiatt’s attention. Hernandez
stated that Wiatt had been driving faster than Hernandez, but about a minute later,
“maybe [Wiatt] slowed down some,” because Hernandez was approximately next to
Wiatt again when the accident occurred. According to Hernandez, Wiatt was looking
down at his phone at this time as well. Wiatt later testified that he had been looking
at his phone for directions.
Richard declined ambulance transportation at the scene but traveled on his
own to Memorial Hermann Northeast Hospital, where his leg and cervical spine
were x-rayed. There were no abnormal findings, and Richard was told to follow up
with his primary-care physician.
Richard then retained an attorney who recommended a number of health-care
providers to Richard, including AD Hospital East and Beyer Chiropractic. AD
Hospital East repeated the x-rays of Richard’s leg and performed a cervical CT scan.
Unidentified services also were rendered by Advanced Diagnostics and Progressive
Medicine Associates. The evidence at trial included billing records from Memorial
Hermann Northeast Hospital, AD Hospital East, Beyer Chiropractic, Advanced
Diagnostics, and Progressive Medicine Associates, but no other medical records.
Richard testified, however, that the x-rays and CT scan were normal, and that records
from AD Hospital East reported that the accident had no effect on his activities of
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daily living, his emotions, or his mental status, and that the records further stated his
range of motion was painless and within normal limits. Richard testified, however,
that he did experience pain as a result of the accident.
Beyer Chiropractic referred Richard to Elite Health Services for magnetic
resonance imaging of Richard’s cervical and lumbar spine. The MRIs revealed five
mild disc herniations: two to Richard’s cervical spine and three to his lumbar spine.
The MRI results did not prompt any further treatment recommendations, and
Richard saw the chiropractor just once more after the MRIs were completed.
Richard sued Wiatt for negligence and gross negligence, but the trial court
granted Wiatt’s motion for directed verdict on Richard’s gross-negligence claim.
Richard’s negligence claim was submitted to a jury, and although Richard asked to
recover the total of his past medical bills, which amounted to $31,168.90, the jury
found that Richard’s reasonable expenses for necessary medical care in the past was
only $15,584.45—exactly half of the amount requested. The jury assessed damages
of $12,000.00 for physical pain in the past but assessed no damages for mental
anguish, physical impairment, or future physical pain.
Richard moved for judgment notwithstanding the verdict, asking the trial
court to increase the award for past medical expenses to $31,168.90, but the trial
court denied the motion and rendered judgment on the jury’s verdict.
In two issues, Richard argues that the trial court erred in (a) rendering a
directed verdict eliminating Richard’s claim for gross negligence, and (b) denying
Richard’s motion for judgment notwithstanding the verdict as to Richard’s past
medical expenses.
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II. GROSS NEGLIGENCE
In most civil cases, a plaintiff must prove his claims by a preponderance of
the evidence. In such cases, we review a trial court’s grant of directed verdict de
novo by applying the same well-established legal-sufficiency standard under which
we review no-evidence summary judgments. See City of Baytown v. Schrock, 645
S.W.3d 174, 178 (Tex. 2022). But, gross negligence must be proved not merely by
a preponderance of the evidence, but by “clear and convincing evidence.” Columbia
Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008) (citing
TEX. CIV. PRAC. & REM. CODE § 41.003(a)(3)). “‘Clear and convincing’ means the
measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.” TEX.
CIV. PRAC. & REM. CODE § 41.001(2). And when the standard of proof in the trial
court is elevated, the standard of appellate review is likewise elevated. See Columbia
Med. Ctr., 271 S.W.3d at 248. Thus, to review the legal sufficiency of the evidence
supporting a claim that must be proved by clear and convincing evidence, we look
at all of the evidence in the light most favorable to the claimant to determine whether
a reasonable trier of fact could form a firm belief or conviction that the claim is true.
See id. If a reasonable factfinder could not form such a firm belief or conviction,
then there is legally insufficient evidence to support the claim. See id.
Gross negligence is an act or omission (a) that “when viewed objectively from
the standpoint of the actor at the time of its occurrence involves an extreme degree
of risk, considering the probability and magnitude of the potential harm to others”;
and (b) “of which the actor has actual, subjective awareness of the risk involved, but
nevertheless proceeds with conscious indifference to the rights, safety, or welfare of
others.” TEX. CIV. PRAC. & REM. CODE § 41.001(11). To establish the first, objective
component, the plaintiff must prove that the defendant’s conduct made serious injury
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likely. See Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014) (per curiam). To
satisfy the second, subjective component, the plaintiff must prove that the defendant
was actually aware of the extreme risk but did not care. See id.Our review of a directed verdict is not limited to the grounds identified by the
trial court as the basis for its ruling. Eurecat US, Inc. v. Marklund, 527 S.W.3d 367,
387 (Tex. App.—Houston [14th Dist.] 2017, no pet.). But because Wiatt moved for
directed verdict on the ground that there was no evidence of the second, subjective
component of gross negligence, we will begin our review there and we will assume,
without deciding, that the objective component of gross negligence has been
satisfied.
Richard gives several evidentiary reasons for his conclusion that there was
legally sufficient evidence of the subjective component of gross negligence, and he
cites three cases in support of his argument. We conclude, however, that the evidence
Richard cites, taken individually or cumulatively, is insufficient to allow a
reasonable factfinder to form a firm belief or conviction that when Wiatt chose to
look at his phone for directions, he had actual, subjective awareness that doing so
involved an extreme degree of risk and that he nevertheless acted with conscious
indifference to the rights, safety, or welfare of others. We further conclude that the
cases on which Richard relies are readily distinguishable.
A. The Conduct at Issue
Because it is repeated several times in Richard’s appellate briefing, we begin
by pointing out a flaw in Richard’s characterization of the evidence identifying
Wiatt’s conduct that allegedly involved an extreme degree of risk. Richard states
several times that Wiatt had been looking at his phone “for a full minute” before the
accident, and he considers the act or omission at issue to consist of Wiatt’s driving
while “looking at his phone for a full minute without looking up.”
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In fact, Hernandez testified that he saw Wiatt looking down at his phone on
two occasions: once about a minute before the accident, and a second time when the
collision occurred. But there is no evidence as to how long Wiatt looked at his phone.
Hernandez emphatically denied watching Wiatt throughout the minute separating
those two occurrences, saying, “Oh no, I was definitely paying attention to the traffic
because we were all coming to a stop or the traffic was stopped and then I was
coming to a stop.” One cannot reasonably infer that Wiatt continued looking at his
phone for an entire minute, because it is at least as likely that he did not do so, and
“[a]n inference is not reasonable if it is susceptible to multiple, equally probable
inferences, requiring the factfinder to guess in order to reach a conclusion.” Suarez
v. City of Tex. City, 465 S.W.3d 623, 634 (Tex. 2015). Thus, the act or omission at
issue is Wiatt’s conduct in looking at his phone for directions while driving, not in
looking exclusively at his phone for a full minute while driving.
B. Sergeant Michael Hayward’s Testimony
The first evidentiary reason Richard gives for challenging the directed verdict
is drawn from the testimony of Sergeant Michael Hayward of the Harris County
Sheriff’s Office. Hayward was a patrolman in September 2016, and he came upon
the accident within minutes after it occurred. Hayward spoke with all three drivers
involved in the accident, and at trial he was asked to state his impression of Wiatt.
Hayward answered,
The impression I got of him I think he knew he had done something
wrong by not paying—at least not paying attention or being distracted.
He was evasive, and like I said earlier, belligerent in the way—his
demeanor towards me. When I asked him a question, he wouldn’t want
to answer it at first.
This statement is not probative of gross negligence for at least two reasons.
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First, to establish the subjective component of gross negligence, we examine
the risk “prospectively from the perspective of the actor, not in hindsight.” Columbia
Med. Ctr., 271 S.W.3d at 248. Sergeant Hayward testified only as to his belief that
Wiatt knew after the accident that he had done something wrong, to which Hayward
adds his own speculation about the reason for Wiatt’s consciousness of wrongdoing.
Although circumstantial evidence may suffice to prove either element of gross
negligence,1 the evidence must do “more than create a mere surmise or suspicion of
its existence.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
Hayward’s statement fails that test.
Second, evidence of simple negligence is insufficient to prove gross
negligence,2 but the quoted testimony offers no basis on which to distinguish gross
negligence from simple negligence. Because a person who has caused an accident
has “done something wrong” even if the person’s acts were simply negligent,
Hayward’s testimony is not probative of the greater culpability required for gross
negligence. See TEX. R. EVID. 401; Coastal Transp. Co. v. Crown Cent. Petroleum
Corp., 136 S.W.3d 227, 232 (Tex. 2004).
C. Wiatt’s Statements and Testimony
Richard’s remaining evidentiary arguments rely on Wiatt’s deposition
testimony3 or Hernandez’s testimony about a statement that Wiatt made at the scene
of the accident. But what is missing from all of the testimony on which Richard relies
is evidence that Wiatt was subjectively aware that looking at navigational directions
1
Boerjan, 436 S.W.3d at 311 (citing Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921
(Tex. 1998)).
2
Ellender, 968 S.W.2d at 921.
3
Wiatt was not present at trial, but excerpts from his deposition were read to the jury.
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on his phone while driving created an extreme degree of risk that he chose to
disregard. The cited testimony is as follows:
When asked if he was using his phone at the time of the collision, Wiatt said,
“No, ma’am. I was—I was trying to get to where I was going. I glanced at the phone,
but it wasn’t—I wasn’t just looking at the phone. It wasn’t the cause of it.” He later
elaborated, “I was looking at my phone to see where I was going to try to reroute
because I sit there about 20 minutes, so I was trying to figure the neighborhood to
cut through to go back around.” Richard argues that these statements show that Wiatt
was “self-focused” in that Wiatt wanted “to avoid being forced to wait for others in
traffic.” But, this is evidence only of the reason Wiatt was looking at driving
directions—that is, to avoid congested traffic. It says nothing about whether Wiatt
was subjectively aware that doing so while driving made serious injury likely.
Richard next points to evidence that Wiatt was asked if Richard did anything
to contribute to the accident, and Wiatt responded that Richard slammed on his
brakes, going from “[a]bout 40 to zero real quick on me.” When Wiatt was asked
why he did not tell this to Hayward, the officer who arrived at the scene, Wiatt said,
“I was just worried about my vehicle” because Wiatt was driving “a loaner vehicle
from the dealership.” Hernandez, too, testified that when Wiatt got out of the car,
Wiatt “was saying something along the lines [of] ‘I’m going to get in trouble, this
isn’t even my car, it’s a rental, I’m in this rental because I just wrecked my car not
too long ago.’” Richard states that even though Wiatt had recently been involved in
a car accident, Wiatt’s “primary focus was on the possible consequences he might
face rather than the injuries of others.”
But there are several problems with Richard’s reliance on this testimony as
well. As with the prior example, this evidence does not suggest that Wiatt knew,
before the accident, that looking at his phone for directions made serious injury
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likely. Indeed, it was not established at the scene that anyone had been seriously
injured. Hayward called an ambulance to the scene as a precaution, but no one
needed emergency transportation. Hayward further testified that he characterizes a
collision resulting in injuries as a “major accident,” but he considered this a “minor
accident.” Hayward additionally stated in his police report that there were no
injuries. Even after Richard was examined in an emergency room later that day, and
again five days later, no injuries were identified. The cited evidence shows only that
Wiatt was concerned after the accident about the damage to the car he had been
driving, but such concerns were not unique to Wiatt; Hayward testified that Punia,
too, was “worried about her car” after the accident.
Finally, Richard cites the following exchange from Wiatt’s deposition:
Question: “Okay. Do you take any responsibility for this collision?”
Answer: “I’m usually the guy that always says it’s my fault, so I guess
one, a percentage would say yeah, somewhat; but at the same time when
you’re driving down the road and it goes 40 to zero like that, you know
what I mean, it’s my fault but at the same time it’s not all my fault here.
People do have accidents, but at the same time—I mean, going from 40
to zero, people are slamming on their brakes, you know. Maybe they
will get enough wrecks there one day and they will fix it, you know,
because it happens every Saturday. I guarantee you tomorrow there will
be a wreck in that same spot. It happens every weekend there.”
Question: “So when you say it happens, what are you referring to?”
Answer: “I’m saying wrecks. The same—the same exact thing because
it’s two lanes and it’s 60 to 70,000 people there in two lanes. You know,
so, I mean, it’s hard. It’s busy. People out, it’s going to keep happening
with other people. It’s a common mistake. It’s not I’m over here Charles
Manson, I’m just a bad guy here, no, it happens. People get in accidents
and people hit each other’s car. They work things out.”
Richard argues that this exchange demonstrates that Wiatt had knowledge of
what he considered a dangerous road design. But, the exchange demonstrates only
that Wiatt knew by the time of his deposition that there were collisions in that
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location every Saturday; the exchange does not indicate that he had the same
knowledge about this stretch of road before the accident.
D. Federal Cases Cited by Richard
Richard maintains that three unpublished cases from federal district courts
have concluded that evidence similar to the evidence in this case raised a fact issue
on a driver’s subjective awareness of an extreme degree of risk. We are not bound
by these decisions,4 and given that the cited cases concern facts very different from
those before us,5 we do not find them persuasive.
E. Conclusion
The subjective component of gross negligence is not established by proof of
mere “momentary thoughtlessness, inadvertence, or error of judgment.” See Wal-
Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 325–26 (Tex. 1993) (quoting Burk
Royalty Co. v. Walls, 616 S.W.2d 911, 920 (Tex. 1981)). But that is all we have here.
Because the evidence is insufficient to support a firm belief or conviction that Wiatt
had actual subjective awareness that his conduct made serious injury likely, we
4
See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993).
5
See, e.g., Lara v. Power of Grace Trucking, LLC, No. PE:20-CV-00010-DC-DF, 2021
WL 7184245 (W.D. Tex. Oct. 4, 2021) (no cell phone involved; commercial driver (a) was not
licensed to drive in this country; (b) claimed in his job application to have extensive experience
though he had none; (c) made an illegal u-turn on a highway in the dark, blocking both lanes of
traffic where the speed limit was 75 miles per hour; (d) fled the scene and asked supervisor and
employer to lie about his name to police officers; (e) was indicted for criminally negligent
homicide and failure to render aid; and (f) failed to appear at his deposition); Alpizar v. John
Christner Trucking, LLC, No. SA-17-CV-00712-FB, 2019 WL 1643743, at *5 (W.D. Tex. Apr.
16, 2019) (commercial driver (a) had a history of unsafe driving (b) made forty calls from his cell
phone that day; and (c) was making a cell phone call at the exact time the accident occurred);
Braun v. Clean Harbors Envtl. Servs., Inc., No. 1:14-CV-524, 2016 WL 7551118, at *5 (E.D. Tex.
Jan. 22, 2016) (commercial driver (a) had a history of safety violations, (b) was driving solo
without approval to do so, (c) had received training materials warning of the increased risks from
driving while using a cell phone, and (d) was talking on his cell phone when the accident occurred).
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conclude that the trial court did not err in granting a directed verdict on Richard’s
gross-negligence claim. We overrule his first issue.
III. PAST MEDICAL EXPENSES
In his second issue, Richard contends that, notwithstanding the jury’s verdict
that his reasonable expenses of necessary medical care in the past amounted to
$15,584.45, the trial court erred in failing to render judgment doubling that amount.
When, as here, a party attacks the legal sufficiency of an adverse finding on
an issue on which he bore the burden of proof, he must demonstrate on appeal that
the evidence establishes, as a matter of law, all vital facts in support of the issue.
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). Thus, a
party with the burden of proof at trial is entitled to judgment notwithstanding the
verdict on a particular issue only if the evidence conclusively establishes the issue
in that party’s favor as a matter of law.
To prove his past medical expenses, Richard relied on medical affidavits
pursuant to Texas Civil Practice and Remedies Code section 18.001(b). Under the
applicable version of that provision, an uncontroverted “affidavit that the amount a
person charged for a service was reasonable at the time and place that the service
was provided and that the service was necessary is sufficient evidence to support a
finding of fact . . . that the amount charged was reasonable or that the service was
necessary.” Act of Apr. 4, 2013, 83d Leg., R.S., ch. 560, § 1, 2013 TEX. GEN. LAWS
1507, 1507 (amended 2019) (emphasis added). Although an uncontroverted affidavit
is sufficient evidence of reasonableness and necessity, it is not conclusive evidence
of reasonableness and necessity. In re Allstate Indem. Co., 622 S.W.3d 870, 881
(Tex. 2021) (orig. proceeding). Moreover, such an affidavit is not sufficient to
establish that the defendant caused the injuries for which the medical expenses were
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paid or incurred. See Gunn v. McCoy, 489 S.W.3d 75, 102 (Tex. App.—Houston
[14th Dist.] 2016), aff’d, 554 S.W.3d 645 (Tex. 2018).
The jury reasonably could have concluded that Richard failed to meet his
burden to prove that all of the medical expenses he incurred were the result of the
accident and were reasonable and necessary. See Gunn v. McCoy, 554 S.W.3d 645,
664–65 (Tex. 2018) (“[I]t is the province of the jury to determine which evidence to
credit . . . .”). We must defer to that determination. See Gen. Growth Props., Inc. v.
Prop. Tax Mgmt., Inc., 614 S.W.3d 386, 390 (Tex. App.—Houston [14th Dist.]
2020, no pet.) (“[W]e defer to the jury’s reasonable credibility determinations.”).
Because Richard did not conclusively establish, as a matter of law, that the entire
$$31,168.90 he sought for past medical expenses were reasonable and necessary and
were incurred as a result of the accident, the trial court did not err in denying his
motion for judgment notwithstanding the judgment.
We overrule Richard’s second issue.
IV. CONCLUSION
Having overruled both of Richard’s appellate issues, we affirm the trial
court’s judgment.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.
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