Daniel Binion v. Brandon Brinkley, Nathanael Friend, and American Medical Response of Texas, Inc. ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-121-CV
DANIEL BINION APPELLANT
V.
BRANDON BRINKLEY, APPELLEES
NATHANAEL FRIEND, AND
AMERICAN MEDICAL
RESPONSE OF TEXAS, INC.
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Daniel Binion appeals the judgment awarding him damages for
injuries that he sustained as a passenger in a car accident involving Appellees
Brandon Brinkley; Nathanael Friend; American Medical Response of Texas, Inc.;
1
 See Tex. R. App. P. 47.4.
and involving Eric Clifford Wallace, who is not a party to this appeal. In two
issues, Binion argues that (1) the trial court abused its discretion by denying his
motion to exclude expert testimony from Officer Emily Summers concerning the
speed of the vehicle in which he was riding, and (2) that the trial court’s abuse
of discretion in admitting Officer Summers’s testimony constitutes harmful
error. Because we hold that any error in admitting Officer Summers’s testimony
about the speed of the vehicles were traveling prior to the accident was not
harmful, we will affirm.
II. F ACTUAL B ACKGROUND
The facts of the car accident are not in dispute. Binion was a passenger
in a modified Dodge Neon SRT driven by Brinkley. When Wallace, who was
driving a white Mustang, pulled up near the Neon at a light on South Cooper
Street, Binion yelled, “Mustangs suck,” to Wallace. Brinkley and Wallace
thereafter began racing; the speed limit was forty-five miles per hour. Brinkley
ultimately hit an American Medical Response of Texas ambulance. Binion
sustained injuries as a result of the accident.
At trial, Brinkley testified that he had told the police at the scene that he
thought he was traveling about sixty miles per hour. 2 Officer Cameron Huggins,
2
 Brinkley later pleaded guilty to the offense of felony racing.
2
who was on patrol and saw the vehicles racing on the night in question,
estimated that they were initially traveling at fifty-five to sixty miles an hour
and were accelerating from that speed. Officer Huggins opined that the speed
at the point of impact was a lot higher than sixty miles per hour based on the
level of damage to the Neon. Timothy Lovett, Binion’s expert, agreed that
Brinkley’s Neon was going close to eighty miles an hour at the time of impact.
Officer Becky Brandenburg, an accident investigator, opined that traveling at a
speed of eighty miles per hour down a public street was excessive. Officer
Emily Summers, an accident investigator, testified that she calculated Brinkley’s
speed at 102 miles per hour at the time of impact. Eric Moody, Ph.D., the
defense’s accident reconstruction expert, testified that Brinkley was traveling
102 miles an hour to 108 miles an hour, plus or minus five miles an hour, at the
time of impact. Moody also made a finding in his report that “eyewitnesses
Anderson, Watson, Griffin, and Huggins corroborate my finding that Mr.
Brinkley and Mr. Wallace were racing at a high rate of speed.”
The case was submitted to the jury, and it found Brinkley 47% liable,
Wallace 47% liable, 3 and Binion 6% liable. Because the jury found in response
to question number one that Friend, the ambulance driver, was not negligent,
3
 Binion entered into a settlement agreement with Wallace prior to trial.
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the jury did not apportion any fault to Friend. 4 The jury awarded damages to
Binion in the following amounts: $50,000 for past physical pain and mental
anguish; $100,000 for future physical pain and mental anguish; $166,271.60
for future loss of earning capacity; $10,000 for past disfigurement; $30,000
for past physical impairment; $100,000 for future physical impairment;
$321,551.93 for past medical care expenses; and $55,221.67 for future
medical care expenses. In light of Binion’s settlement with Wallace, the trial
court signed a judgment that Binion should recover from Brinkley $370,477.15,
for damages, prejudgment interest, and taxable court costs. This appeal
followed.
III. A DMITTING E XPERT T ESTIMONY ON S PEED W AS H ARMLESS
In his two issues, Binion argues that the trial court erred by admitting
Officer Summers’s testimony about the Neon’s speed at the time of the
accident and that the trial court’s error was harmful because, without Officer
Summers’s testimony, “the jury would have had a different view of the
apportioned responsibility of each Defendant and would have been more
receptive of the Appellant’s theories.” For purposes of this opinion, we will
assume that the trial court erred by admitting Officer Summers’s testimony
4
 Binion does not challenge on appeal the jury’s failure to find Friend
negligent in question number one.
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concerning the speed of the Neon at the time of the accident, but as discussed
below, the record does not support Binion’s contention that any such error was
harmful.
To obtain reversal of a judgment based upon an error in the trial court, the
appellant must show that the error occurred and that it probably caused
rendition of an improper judgment or probably prevented the appellant from
properly presenting the case to this court. Tex. R. App. P. 44.1(a); Romero v.
KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex. 2005). We will not
reverse a trial court’s judgment because of an erroneous evidentiary ruling
unless the ruling probably, though not necessarily, caused the rendition of an
improper judgment. Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d
867, 871 (Tex. 2008). The complaining party must usually show that the
whole case turned on the evidence at issue. Interstate Northborough P’ship v.
State, 66 S.W.3d 213, 220 (Tex. 2001); City of Brownsville v. Alvarado, 897
S.W.2d 750, 753–54 (Tex. 1995). Error in admitting evidence is generally
harmless if the objecting party later permits the same or similar evidence to be
introduced without objection. Bay Area Healthcare Group Ltd. v. McShane,
239 S.W.3d 231, 235 (Tex. 2007); Richardson v. Green, 677 S.W.2d 497,
501 (Tex. 1984).
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The statutory provision governing proportionate responsibility provides
that the trier of fact shall determine the percentage of responsibility, stated in
whole numbers, with respect to each person’s causing or contributing to cause
in any way the harm for which recovery of damages is sought, whether by
negligent act or omission. See Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a)
(Vernon 2008). The determination of the negligent parties’ proportionate
responsibility is a matter soundly within the jury’s discretion; it is not the place
of this court to substitute its judgment for that of the jury. See Hagins v. E-Z
Mart Stores, Inc., 128 S.W.3d 383, 392 (Tex. App.—Texarkana 2004, no pet.)
(citing Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 659–60 (Tex.
App.—Dallas 2002, pet. denied) (explaining that section 33.033 of the Texas
Civil Practice and Remedies Code affords juries “wide latitude in . . . allocating
responsibility for an accident”)).
As set forth above, Officer Summers’s testimony was not the only
testimony admitted concerning the speed of the Neon at the time of the
accident. The jury heard unobjected-to testimony about the speed of the racing
vehicles from other officers, lay witnesses, and each side’s experts. Brinkley
himself told officers that he was traveling approximately sixty miles per hour at
the time of the accident. Throughout the trial, there was no evidence that
Brinkley was driving within the speed limit as he raced down South Cooper.
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Based on this evidence, the jury found the drivers of both of the racing vehicles
equally responsible, assessing each of their percentages of fault at 47%. The
jury found Binion 6% at fault.
Our review of the entire record does not support the contention that the
admission of Officer Summers’s opinion on the speed of the Neon probably
caused rendition of an improper judgment. See Tex. R. App. P. 44.1(a). The
proportionate responsibility statute requires the jury to determine the
percentage of responsibility with respect to each person’s causing or
contributing to cause in any way the harm for which recovery of damages is
sought. See Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a). Ample evidence
exists in the record—even not considering Officer Summers’s testimony—from
which the jury could have concluded that Brinkley was speeding and was
equally responsible along with Wallace for causing the harm for which Binion
sought recovery of damages. Nothing in the record supports any contention
that the exclusion of Officer Summers’s testimony would have altered the jury’s
finding that Binion was 6% responsible for causing the harm for which he
sought damages. We cannot say—based on the undisputed evidence that
Brinkley and Wallace were speeding and that Binion played some role in
instigating the race—that if Officer Summers’s opinion on the speed of the
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Neon had been excluded, the jury would have apportioned liability differently. 5
Instead, the jury likely would have reached the same apportionment of liability
based on the undisputed evidence that, regardless of the degree of speeding by
the racing cars, both were speeding and based on the evidence that Binion
played some role in instigating the race.
Additionally, because Officer Summers’s testimony was merely
cumulative and corroborative of other evidence concerning the speed of the
Neon, it was not, in any event, harmful. See Adams v. Morris, 584 S.W.2d
712, 718 (Tex. Civ. App.—Tyler 1979, no writ) (holding that even if officer’s
testimony on speed was inadmissible, it was merely cumulative and
corroborative of other evidence and was therefore harmless error); Adams v.
Smith, 479 S.W.2d 390, 395 (Tex. Civ. App.—Amarillo 1972, no writ) (same).
Therefore, even assuming error as Binon urges in his first issue, we find any
such error harmless and overrule his second issue.
5
 We note that there was no gross negligence submission within the
jury charge.
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IV. C ONCLUSION
Having held that any error by the trial court in admitting Officer
Summers’s opinion on the speed of the Neon at the time of the accident was
harmless, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.
DELIVERED: February 4, 2010
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