Hans M. Hughes v. Donald Bergman ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-98-00368-CV

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Hans M. Hughes, Appellant

v.

Donald Bergman, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. 94-06680, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING

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In this personal injury action, Hans M. Hughes ("defendant") appeals from a judgment rendered for Donald Bergman ("plaintiff") that awarded actual damages of $50,500 and exemplary damages of $25,003.50. In two points of error, defendant complains that (1) insufficient evidence supports the jury finding of gross negligence, and (2) the trial court improperly instructed the jury on negligence per se. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant rented a combination horse and cattle trailer from Windsor Trailer Rentals ("Windsor"), located on the access road to IH-35 in Austin, Texas. Defendant requested that the personnel at Windsor attach the trailer to his recently purchased pick-up truck. The rental trailer was equipped with brake lights and turn signals; Windsor personnel offered to connect the lights and signals to the electrical system of defendant's truck for a nominal charge. Defendant refused Windsor's offer because he "wasn't comfortable" with the splicing that would have been required to make the lights operate. Defendant testified that he felt the absence of brake lights and turn signals presented only a minimal risk because he planned to tow a clearly visible trailer on rural roads for only a short period during daylight hours.

Between approximately 11:00 A.M. and 3:00 P.M., defendant used the trailer to haul a friend's horse from a stable in Northeast Austin to a veterinarian's office in North Austin and back to the stable. All of the driving appears to have been within the city limits of Austin. In the middle of the afternoon, as defendant was preparing to turn off of the access road of IH-35 into the Windsor driveway to return the trailer, plaintiff's car collided with the rear of the trailer, causing property damage and physical injury.

Defendant testified that shortly before the collision, he rolled down his window and used hand signals to indicate that he was slowing and turning right into the Windsor driveway. At no point prior to embarking on his journey did defendant verify that these hand signals were visible from behind the trailer. Plaintiff testified that as he followed defendant's trailer, he turned his head slightly left for approximately one second while preparing to merge left; when he turned his gaze forward, the trailer had almost come to a complete stop. Plaintiff also testified that following the collision, he approached defendant's truck and found the driver's window rolled up.

The sheriff's department accident report indicated that the absence of brake lights and turn signals on the trailer that defendant was towing contributed to the accident. The report also indicated that faulty "evasive action" by plaintiff might or might not have contributed to the accident.

DISCUSSION

Exemplary Damages

The award of exemplary damages was based on the jury's finding that defendant was grossly negligent in driving without properly connected brake lights and turn signals. In his first point of error, defendant argues that there is no evidence or insufficient evidence in the record to support that finding. Specifically, he contends his conduct did not create an extreme risk of harm.

We may affirm a finding of gross negligence only if we are satisfied that there is some evidence that the tortfeasor's conduct created an extreme risk of harm and that the tortfeasor was aware of that risk. Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d. 322, 326 (Tex. 1993). In evaluating the legal sufficiency of the evidence, we must determine whether the evidence as a whole rose to a level that would enable reasonable and fair-minded individuals to differ in their conclusions on whether the defendant's conduct constituted gross negligence. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 923 (Tex. 1998). In no-evidence reviews, we consider all the evidence in the light most favorable to the verdict. Associated Indem. Corp. v. Cat Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). However, when considering a factual-sufficiency challenge, we consider both the evidence that supports the verdict and that which is contrary without favoring one over the other. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).

At the time of this accident, the Texas Legislature had defined "gross negligence" as "more than momentary thoughtlessness, inadvertence, or error of judgment." See Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.12, 1987 Tex. Gen. Laws 37, 44 (Tex. Civ. Prac. & Rem. Code Ann. § 41.001(5), since amended). Instead, gross negligence required "such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected." Id. In 1994 the Texas Supreme Court explained that "gross negligence" includes two distinct elements:

(1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety or welfare of others.

Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994) (emphasis added). ⁽¹⁾ We will review each of these elements independently.

We begin by considering the requirement that, to constitute gross negligence, an act or omission must create an extreme degree of risk. In the personal injury setting, the supreme court has emphasized that "[the objective] component, being a function of both the magnitude and the probability of the potential injury, is not satisfied if the defendant's conduct merely creates a remote possibility of serious injury; rather, the defendant's conduct must create the 'likelihood of serious injury' to the plaintiff." Universal Servs. Co. v. Ung, 904 S.W.2d 638, 641 (Tex. 1995); see also Scott Fetzer Co. v. Read, 945 S.W.2d 854, 870 (Tex. App.--Austin 1997), aff'd, 42 Tex. Sup. Ct. J. 264 (Dec. 31, 1998) (expressly approving court of appeals' analysis on gross negligence issue).

Defendant contends that driving a large, red trailer during daylight hours, "on roads with little traffic," yet without brake lights or turn signals, does not create the likelihood of serious injury needed to support a finding of gross negligence. We disagree. While another jury might have agreed with defendant's arguments, we conclude that this jury had sufficient evidence to find that defendant's conduct created an extreme degree of risk.

First, the jury could have reasonably believed that the bright color and large size of the defendant's trailer in no way mitigated the level of danger created by the absence of brake lights and turn signals. Seeing a trailer and being able to recognize that the trailer is slowing down are two different things, and it would have been reasonable for the jury to focus on this distinction. Additionally, the jury would have been reasonable in finding that defendant drove the trailer on city roads during the heavily trafficked weekday lunch hours, significantly increasing the likelihood of a collision. Finally, the jury could have reasonably believed that defendant took insufficient steps to mitigate the likelihood of serious injury created when he towed a trailer through city streets without brake lights and turn signals. Although defendant testified that he used hand signals throughout his journey, he also acknowledged that he never verified that these hand signals were visible from behind the trailer. Moreover, plaintiff testified that after the collision he left his vehicle and found the driver's window of defendant's vehicle closed. This testimony creates a reasonable inference that defendant did not in fact use hand signals, or at best used them only sporadically. Based on this evidence, the conclusion that the defendant's conduct created an extreme risk of harm is reasonable.

In arguing that his conduct did not create a likelihood of serious injury to the plaintiff, defendant draws a parallel between this case and Universal Services Co. v. Ung. In Ung, the decedent was working alongside an interstate highway when a trailer passed over a pothole on the highway, decoupled from the truck that was towing it, and struck him. About eight months prior to the accident, a company employee had witnessed a similar accident caused by the same pothole. On that basis, a jury found Universal's conduct grossly negligent and awarded punitive damages. The supreme court reversed the punitive damage award, holding that there was no evidence that the risk posed by the pothole created a likelihood of serious injury. Ung, 904 S.W.2d at 642. In reaching this conclusion, however, the court was careful to point out the undisputed evidence that decedent's crew "was working in an area barrelled off from traffic, for a scheduled period of about thirty minutes, with sign trucks directing traffic away from the closed- off area." Id.

Defendant's conduct in the present case can be distinguished from that in Ung. First, the risk of being rear-ended when one drives a car without brake lights seems markedly higher than the risk of a trailer hitting a pothole, decoupling, and striking a road worker. Also important, however, are the differences between the conduct of the defendant in Ung and defendant here. As the supreme court pointed out in Ung, Universal Services Company undisputably took steps to control the environment in which the accident occurred. In this case, the jury was entitled to believe that defendant did not use hand signals or any other means of mitigating the risk created by the absence of brake lights. Additionally, whereas the incident in Ung revolved around an isolated pothole, defendant's conduct in this case took place on unpredictable, uncontrolled city streets. For these reasons, we do not consider Ung to be controlling.

To affirm the jury's finding of gross negligence, we must also find sufficient evidence that defendant knew of the extreme risk created by his conduct and consciously disregarded this risk. As the supreme court has explained, the requirement of conscious indifference would be superfluous unless it required proof that the defendant had actual subjective knowledge of an extreme risk of serious harm. Moriel, 879 S.W.2d at 22. However, proof of the defendant's state of mind may be based on circumstantial evidence. Id. at 23; Williams v. Steves Indus. Inc., 699 S.W.2d 570, 573 (Tex. 1985).

The record demonstrates that defendant recognized that hauling a trailer without brake lights and turn signals created an element of additional risk that would not have been present had the trailer's brake lights and turn signals been connected. Defendant maintains, however, that he believed this risk was minimal. As discussed above, plaintiff produced sufficient evidence for the jury to find that the risk created by defendant's conduct was objectively extreme. In the same manner, there was legally and factually sufficient circumstantial evidence for the jury to disbelieve defendant's testimony and find that, in addition to recognizing a risk, defendant must have recognized an extreme risk.

In summary, driving on city roads creates an inherent risk of injury. We believe that driving on city roads without brake lights or turn signals significantly increases the chances of a collision, creating an extreme risk of danger and the likelihood of serious injury. From the evidence, the jury could believe that defendant took virtually no steps to mitigate this extreme risk of danger. Moreover, the jury was presented with sufficient circumstantial evidence to support a finding that defendant recognized the extreme risk of harm that his conduct was creating and consciously disregarded that risk. Accordingly, the jury was entitled to find defendant grossly negligent. Defendant's first point of error is overruled.

Negligence Per Se

In his second point of error, defendant contends the district court erred by instructing the jury that (1) the law required the trailer hauled by defendant to be equipped with working brake lights and turn signals, and (2) the failure to maintain these lights and signals constituted negligence per se. ⁽²⁾ Defendant argues that the trailer in question was an "implement of husbandry," hence exempt from the State transportation code provisions requiring working brake lights and turn signals. See Tex. Rev. Civ. Stat. Ann. art. 6701d, § 108(c) (West 1977). For the following reasons, we conclude that the trial court properly classified the trailer as an ordinary vehicle and did not err in instructing the jury on negligence per se.

In every case involving negligence per se, the threshold questions are whether the plaintiff belongs to the class that the statute was intended to protect and whether the plaintiff's injury is of a type that the statute was designed to prevent. See Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998). If these threshold questions are answered affirmatively, we must still determine whether imposing tort liability for violations of that statute would be "fair, workable, and wise." Perry, 973 S.W.2d at 306. In this inquiry, we are guided by various factors, such as: (1) whether the defendant would have owed the plaintiff a common law duty absent the statute, see id. at 307; Praesel v. Johnson, 967 S.W.2d 391, 395 (Tex. 1998); (2) whether the statute clearly defines the prohibited or required conduct, see Perry, 973 S.W.2d. at 307; (3) whether applying negligence per se to the conduct would create liability without fault, see id. at 308; Praesel, 967 S.W.2d at 395; (4) whether negligence per se would impose liability disproportionate to the gravity of defendant's conduct, see id.; and (5) whether plaintiff's injury flowed directly or indirectly from violation of the statute, see id.; Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278-79 (Tex. 1979).

Defendant does not dispute that plaintiff was a member of the class that the statute in this case was designed to protect. Nor does defendant contest that the injury suffered by plaintiff is the type that the statute sought to prevent. Rather, defendant contends his conduct was not prohibited by statute, rendering the trial court's negligence per se instruction inappropriate. We disagree. Article 6701d, section 108 of the Texas Revised Civil Statutes, in effect at the time of the accident, provides that "[i]t is a misdemeanor for any person to drive or move . . . on any highway any vehicle or combination of vehicles which . . . is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this Article . . . ." Tex. Rev. Civ. Stat. Ann. art. 6701d, § 108(a) (West 1977). The statute subsequently provides that "every motor vehicle, trailer, semitrailer and pole trailer shall be equipped with two (2) or more stop lamps . . .", id. art. 6701d, § 118(a), and electric turn signals, id. art. 6701d, § 118(b). Thus, state law generally requires that trailers such as the one towed by defendant be equipped with functioning brake lights and turn signals. However, the statute exempts from the above provisions several different categories of vehicles, including "implements of husbandry." Id. art. 6701d, § 108(c). Defendant does not deny towing a trailer without brake lights and turn signals on June 4, 1992; rather, he argues that his conduct fell within the exception provided for implements of husbandry. We must first decide whether defendant's conduct fell within the parameters of this exception.

Article 6701d, section 2(g) defines "implement of husbandry" as "every vehicle designed and adapted for use as a farm implement, machinery or tool as used in tilling the soil, but shall not include any passenger car or truck." Tex. Rev. Civ. Stat. Ann. art. 6701d, § 2(g) (West 1977). It would be fair to read the phrase "as used in tilling the soil" to apply uniformly to "farm implement," "machinery," and "tool." Under this narrow reading of the definition, the trailer in this case could not be an "implement of husbandry" because it was not designed or used to till the soil. A broader reading of the definition would construe the "as used in tilling the soil" language to apply only to "tool," leaving open the possibility that the trailer was either "machinery" or a "farm implement." Even if this broader reading is proper, however, the result here is unchanged. "Machinery" generally denotes objects used to process materials or perform specific functions; a trailer would not be naturally described as "machinery." Black's Law Dictionary defines "implements" as "such things as are used or employed for a trade." Black's Law Dictionary 754 (6th ed. 1990). Thus, "farm implement" seems to denote an object designed or used for farming. The trailer in this case was neither designed for nor used in connection with farming, a fact conceded by defendant's counsel at trial. While the trailer could conceivably have been used in a farming operation, this was not its primary use or purpose on the facts as they appear in the record. Thus, under even the broadest natural reading of the statutory definition, the trailer in this case could not be classified as an implement of husbandry.

This result is further supported by Texas case law. In construing "implement of husbandry" as it has been used in connection with other pieces of Texas legislation, courts have focused on the primary use or purpose of the items in question. This approach has quite naturally led to case-by-case factual analysis. In Smith v. McBryde, the court declared that "implements of husbandry" include "all implements used by the farmer in conducting his farming operations . . . ." Smith v. McBryde, 173 S.W. 234, 235 (Tex. Civ. App.--San Antonio 1915, no writ). Similarly, the Texas Court of Criminal Appeals has construed the phrase in the context of article 827(a), section 3(a) of the Texas Civil Statutes, which exempted from length limitations placed upon motor vehicles implements of husbandry temporarily propelled or moved upon the public highways. Reaves v. State, 50 S.W.2d 286, 287 (Tex. Crim. App. 1931). The court stated that "[a]n implement of husbandry is something necessary to the carrying on of the business of farming, etc., without which the work cannot be done." Id. Finally, in discussing article 6675a-1 of the Revised Civil Statutes, which governs vehicle registration and provides an exemption from registration for "implements of husbandry," the Attorney General declared that the test was one of primary design and primary use or purpose, concluding: "It is fundamental then, that whether a vehicle is an 'implement of husbandry' must be determined by the primary design and primary use or purpose to which the vehicle is put and turns on the 'facts of any particular case.'" Op. Tex. Att'y Gen. No. M-1254 (1972); see also Op. Tex. Att'y Gen. No. JM-718 (1987).

These cases and opinions indicate that the purpose underlying exemptions for implements of husbandry appears to have been protection of the needs of farmers and ranchers, specifically protection of the equipment that they require to maintain their operations. While it is conceivable that under appropriate circumstances a rental trailer could satisfy this requirement, see Hickman v. Hickman, 234 S.W.2d 410, 414 (Tex. 1950) (classifying farmer's trailers that were intended to be used to haul cotton to gin as implements of husbandry), the trailer in this case was not being used for ranching or farming purposes. Defendant essentially asks this Court to declare that any trailer that could be used for agricultural or ranching purposes is exempt from the equipment requirements outlined in the Texas Transportation Code even when it is not being so used. This we decline to do.

Having found that the trailer in this case was an ordinary vehicle and that defendant violated Article 6701(d), section 108 of the Texas Revised Civil Statutes by towing the trailer without functioning brake lights, we turn to whether it would be appropriate to assign tort liability for violation of the statute. In Perry, the supreme court recognized that the overwhelming majority of its negligence per se cases had involved violations of traffic statutes. Perry, 973 S.W.2d at 306. In such cases, the defendant already owes the plaintiff a common law duty to act as a reasonably prudent person would act. Id. Applying a negligence per se standard in cases involving violations of traffic statutes does not cause a great change in the law. Id. In this case, the traffic statute that defendant violated clearly defined the required conduct. Additionally, violation of the statute directly contributed to causing the accident, and application of a negligence per se standard will not create liability without fault. In light of these factors, we believe that imposition of tort negligence for violation of this traffic statute was appropriate. See Carter, 584 S.W.2d at 278 (summarizing cases in which Texas courts have found violations of traffic statutes to constitute negligence per se).

We overrule defendant's second point of error.

CONCLUSION

For the reasons discussed above, we affirm the trial court's judgment.

J. Woodfin Jones, Justice

Before Justices Jones, B. A. Smith and Yeakel

Affirmed

Filed: February 25, 1999

Do Not Publish

1. The legislature codified the cited language in 1995. See Tex. Civ. Prac. & Rem. Code Ann. § 41.001(7)(B) (West 1997).

2. In its charge, the trial court instructed the jury that "[t]he violation of a law is negligence in itself. The law forbids any person to move on any highway a trailer which is not at all times equipped as required by law. . . . The law required this trailer to be equipped with stop lights and turn-signals that were working."

estion. This approach has quite naturally led to case-by-case factual analysis. In Smith v. McBryde, the court declared that "implements of husbandry" include "all implements used by the farmer in conducting his farming operations . . . ." Smith v. McBryde, 173 S.W. 234, 235 (Tex. Civ. App.--San Antonio 1915, no writ). Similarly, the Texas Court of Criminal Appeals has construed the phrase in the context of article 827(a), section 3(a) of the Texas Civil Statutes, which exempted from length limitations placed upon motor vehicles implements of husbandry temporarily propelled or moved upon the public highways. Reaves v. State, 50 S.W.2d 286, 287 (Tex. Crim. App. 1931). The court stated that "[a]n implement of husbandry is something necessary to the carrying on of the business of farming, etc., without which the work cannot be done." Id. Finally, in discussing article 6675a-1 of the Revised Civil Statutes, which governs vehicle registration and provides an exemption from registration for "implements of husbandry," the Attorney General declared that the test was one of primary design and primary use or purpose, concluding: "It is fundamental then, that whether a vehicle is an 'implement of husbandry' must be determined by the primary design and primary use or purpose to which the vehicle is put and turns on the 'facts of any particular case.'" Op. Tex. Att'y Gen. No. M-1254 (1972); see also Op. Tex. Att'y Gen. No. JM-718 (1987).

These cases and opinions indicate that the purpose underlying exemptions for implements of husbandry appears to have been protection of the needs of farmers and ranchers, specifically protection of the equipment that they require to maintain their operations. While it is conceivable that under appropriate circumstances a rental trailer could satisfy this requirement, see Hickman v. Hickman, 234 S.W.2d 410, 414 (Tex. 1950) (classifying farmer's trailers that were intended to be used to haul cotton to gin as implements of husbandry), the trailer in this case was not being used for ranching or farming purposes. Defendant essentially asks this Court to declare that any trailer that could be used for agricultural or ranching purposes is exempt from the equipment requirements outlined in the Texas Transportation Code even when it is not being so used. This we decline to do.

Having found that the trailer in this case was an ordinary vehicle and that defendant violated Article 6701(d), section 108 of the Texas Revised Civil Statutes by towing the trailer without functioning brake lights, we turn to whether it would be appropriate to assign tort liability for violation of the statute. In Perry, the supreme court recognized that the overwhelming majority of its negligence per se cases had involved violations of traffic statutes. Perry, 973 S.W.2d at 306. In such cases, the defendant already owes the plaintiff a common law duty to act as a reasonably prudent person would act. Id. Applying a negligence per se standard in cases involving violations of traffic statutes does not cause a great change in the law. Id. In this case, the traffic statute that defendant violated clearly defined the required conduct. Additionally, violation of the statute directly contributed to causing the accident, and application of a negligence per se standard will not create liability without fault. In light of these factors, we believe that imposition of tort negligence for violation of this traffic statute was appropriate. See Carter, 584 S.W.2d at 278 (summarizing cases in which Texas courts have found violations of traffic statutes to constitute negligence per se).

We overrule defendant's second point of error.

CONCLUSION

For the reasons discussed above, we affirm the trial court's judgment.

J. Woodfin Jones, Justice

Before Justices Jones, B. A. Smith and Yeakel

Affirmed

Filed: February 25, 1999

Do Not Publish

1. The legislature codified the cited language in 1995. See Tex. Civ. Prac. & Rem. Code Ann. § 41.001(7)(B) (West 1997).

2. In its charge, the trial court instructed the jury that "[t]he viola