Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-14-00494-CV
UNITED PARCEL SERVICE, INC. and Roland Leal,
Appellants
v.
Robert Scott RANKIN and Rachelle Rankin, individually and as next friend for Avery Rankin,
Robert Scott RANKIN and Rachelle Rankin, individually and as next friend for Avery Rankin,
Kara Rankin, and Samuel Rankin, minors,
Appellees
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CI-07922
Honorable Cathleen M. Stryker, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: June 3, 2015
AFFIRMED
This appeal involves a personal-injury suit brought by Robert Scott Rankin and his family
against United Parcel Service, Inc. and Roland Leal (collectively “UPS”). UPS appeals the over
$4 million judgment granted in favor of Rankin and his family. We affirm.
BACKGROUND
On July 15, 2009, at about 6:00 p.m., Roland Leal, a driver with UPS, parked his UPS
package vehicle in front of a residence at 109 Ranger Creek Road, Boerne, Texas, to make a
delivery on his normal route. Because he intended to park the vehicle for about two minutes, he
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left the vehicle halfway on the asphalt shoulder and halfway on the lane of traffic. Before leaving
the truck to deliver a package, Leal turned on the vehicle’s flashing hazard lights. The conditions
were sunny and clear, with the heat index up to 112 degree Fahrenheit, and traffic was light. At
trial, UPS introduced evidence that the view of the parked UPS vehicle was unobstructed for more
than 2,000 feet down the roadway. Rankin, however, also introduced evidence that the UPS vehicle
was brown and stopped under the canopy of a tree with brown leaves with a brown hill framing
the background.
Earlier that day, Robert Scott Rankin had finished his first of two bicycle rides. In the late
afternoon, Rankin went out for his second, longer bicycle ride. At about 6:00 p.m., Rankin was on
his way back to his home and was traveling eastbound on Ranger Creek Road. Rankin rode straight
into the back of Leal’s parked UPS vehicle and suffered severe personal injuries as a result of the
accident. At trial, UPS’s expert testified that he believed Rankin had his head down at the time of
the collision. Rankin testified that he does not remember what happened. Leal testified that he did
not see the accident. He had just delivered his package, was in the front of the truck, and was about
to leave when he heard the sound of Rankin hitting the back of the vehicle.
Sergeant Tom Allison with the Kendall County Sheriff’s Office investigated the accident.
When he arrived on the scene, the hazard lights of the UPS vehicle were still flashing. Sergeant
Allison testified that Rankin said he never saw the UPS vehicle before he rode into the back of it.
Sergeant Allison, who has received training in accident reconstruction and reporting, testified that
after examining the scene of the accident and talking with Rankin, Leal, and the owner of the
residence, Megan McGehee, Sergeant Allison determined that the UPS vehicle had been parked
when Rankin rode into the back of it. Sergeant Allison testified that Rankin had a duty to keep a
lookout for vehicles; that there was sufficient space for a cyclist to ride around the UPS vehicle;
that the UPS vehicle would have been visible and obvious to other motorists; and that he did not
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believe Leal had violated any parking laws. Further, Sergeant Allison testified that he was familiar
with the area and that it was a common practice for commercial vehicles to park in a manner similar
to the UPS vehicle when making a delivery or pick-up at the residence. It was also common
practice for residents to park in the same manner when opening gates to their driveways. Sergeant
Allison testified that he did not charge Leal with illegal parking.
As a result of the accident, Rankin is now a partial quadriplegic. He, his wife, and his
children (collectively “Rankin”) sued UPS for negligence. At trial, the jury was asked about and
given instructions regarding both negligence per se and common-law negligence. In Questions 1
and 2 the jury was asked about negligence per se. In Texas, the laws regarding parking differ
depending on whether one is parked within a “residence district.” See TEX. TRANSP. CODE ANN.
§ 545.301 (West Supp. 2014) (prohibiting parking “on the main traveled part of a highway outside
a business or residence district” unless certain exceptions apply). Thus, in Question 1, the jury was
asked whether when the accident occurred, the UPS vehicle was “stopped, parked, or standing
outside of a ‘residence district.’” 1 It was instructed that a “residence district” is “the territory
adjacent to and including a highway, if at least 300 feet of the highway frontage is primarily
improved with (a) residences or (b) buildings used for business purposes and residences.” 2 It
answered in the affirmative. In Question 2, the jury was asked whether the negligence, if any, of
Leal and/or Rankin proximately caused the occurrence in question. With respect to Leal, the jury
was instructed the following:
The law prohibits stopping, parking, or leaving standing an attended or unattended
vehicle on the main traveled part of a highway outside a business or residence
district unless:
1
This definition tracked section 545.301 of the Texas Transportation Code.
2
This definition tracked the definition of “residence district” found in section 541.102(2) of the Texas Transportation
Code.
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(1) stopping, parking, or leaving the vehicle off the main traveled part of
the highway is not practicable;
(2) a width of highway beside the vehicle is unobstructed and open for the
passage of other vehicles; and
(3) the vehicle is in clear view for at least 200 feet in each direction on the
highway.
A failure to comply with this law by Roland Leal, if any, is negligence in itself.
(emphasis in original). With respect to Rankin, the jury was instructed the following:
“Negligence” when used with respect to the conduct of Scott Rankin 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. “Ordinary care” means that degree of care that would be used by a
person of ordinary prudence under the same or similar circumstances.
The jury answered in the affirmative with respect to both Leal and Rankin.
In Question 3, the jury was again asked whether the negligence of Leal and/or Rankin
proximately caused the occurrence in question. The jury was instructed about the definition of
“negligence” and “ordinary care.”
“Negligence” when used with respect to the conduct of Roland Leal and Scott
Rankin 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. “Ordinary care” means the degree of care that would
be used by a person or ordinary prudence under the same or similar circumstances.
The jury was further instructed the following:
In your determination of this question, you shall not consider whether Roland
Leal failed to comply with the law regarding parking outside of a business or
residence district, but rather only consider the negligence standard set forth
above for both Roland Leal and Robert Scott Rankin.
(emphasis in original). Thus, Question 3 question related only to Rankin’s common-law
negligence claim, and not to Rankin’s negligence per se claim. With respect to both Leal and
Rankin, the jury answered the question in the affirmative.
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In Question 4, the jury was asked to assign percentages of responsibility to those it found
caused or contributed to cause the occurrence. It found both Rankin and Leal 50% responsible for
the occurrence, respectively. With respect to damages, the jury found over $7 million would fairly
and reasonably compensate Rankin for his injuries. The jury also awarded Rankin’s wife almost
$1 million for loss of household services and loss of consortium, and each of his children $450,000
for loss of parental consortium. The trial court then signed a judgment pursuant to the verdict and
Rankin’s proportionate responsibility. UPS now appeals.
PROXIMATE CAUSE
UPS argues that the evidence is factually and legally insufficient to support the finding that
Leal’s parking of the UPS vehicle proximately caused Rankin’s injuries. “In reviewing a verdict
for legal sufficiency, we ‘must view the evidence in the light most favorable to the verdict,
crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not.’” Reeder v. Wood Cnty. Energy, LLC, 395 S.W.3d 789, 795 (Tex.
2012) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005)). A legal sufficiency
challenge will be sustained when “the evidence offered to prove a vital fact is no more than a mere
scintilla.” Id. “Evidence does not exceed a scintilla if it is so weak as to do no more than create a
mere surmise or suspicion that the fact exists.” Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat’l
Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009) (citations omitted). In reviewing a
verdict for factual sufficiency, we consider all the evidence supporting and contradicting the jury’s
finding, and will set aside the judgment only if the finding is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. Villarreal v. Guerra, 446 S.W.3d 404,
411 (Tex. App.—San Antonio 2014, pet. denied). We note that as the factfinder, the jury is the
sole judge of the credibility of the witnesses and the weight to be given their testimony. See City
of Keller, 168 S.W.3d at 819. Thus, a jury may believe or disbelieve the testimony of a witness, in
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whole or in part, and may resolve any inconsistencies in a witness’s testimony. See Villarreal, 446
S.W.3d at 411; Dwairy v. Lopez, 243 S.W.3d 710, 713-14 (Tex. App.—San Antonio 2007, no
pet.). As an appellate court, we may not pass upon the credibility of the witnesses, or substitute
our judgment for that of the jury, even if the evidence would clearly support a different result.
Villarreal, 446 S.W.3d at 411 (citing Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.
1998)).
Proximate cause includes cause-in-fact and foreseeability. Doe v. Boys Clubs of Greater
Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). UPS argues that the evidence is legally and
factually insufficient to support both cause-in-fact and foreseeability. “Foreseeability exists when
the actor as a person of ordinary intelligence should have anticipated the dangers his negligent act
[or omission] creates for others.” D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002)
(citation omitted). Cause-in-fact “is established when the act or omission was a substantial factor
in bringing about the injuries, and without it, the harm would not have occurred.” Transcon. Ins.
Co. v. Crump, 330 S.W.3d 211, 222-23 (Tex. 2010) (citation omitted). UPS points to case law for
the proposition that the “substantial factor” requirement is not met if the injury is a “remote”
consequence of the defendant’s conduct. See Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113
(Tex. 2013) (stating that “an actor’s negligence may be too attenuated from the resulting injuries
to the plaintiff to be a substantial factor in bringing about the harm”) (citation omitted).
According to UPS, Leal’s parking of the UPS vehicle on the road was not a substantial
factor in causing Rankin’s injuries and thus was not a cause-in-fact. It argues that “the evidence
allows only one logical inference, namely, that the sole proximate cause of Mr. Rankin’s injury
was his own negligence in riding his bike on a hot day after suffering from heat-induced illness
earlier in the day, with his head down for over 2000 feet, without keeping any lookout for vehicles
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or people on this residential road.” Thus, UPS claims the undisputed evidence shows that Rankin
was the sole proximate cause of his injuries.
Rankin, however, points out that many facts supporting UPS’s assertion that he was the
sole proximate cause of his injuries were, in fact, disputed at trial. While UPS claims Rankin
“suffer[ed] from heat-induced illness earlier in the day,” Rankin points out that this fact was
disputed. Rankin testified he had not suffered from heat-induced illness after his earlier ride.
Similarly, while UPS claims that Rankin had “his head down for over 2000 feet,” Rankin
emphasizes that at trial, this fact was also disputed, as Rankin testified at trial that he had reached
the top of a hill and was descending at about forty to forty-five miles per hour when he reached
the flat part of Ranger Creek Road. According to Rankin, at those speeds, he would never have
kept his head down for that amount of distance. Further, Rankin argues that although UPS claims
the undisputed evidence shows Rankin was “not keeping a lookout for vehicles or people on this
residential road,” Rankin points out that the evidence was disputed at trial whether Ranger Creek
Road was a residential road or whether he was keeping a lookout. Rankin stresses that the evidence
at trial showed that the UPS truck was not as visible as UPS characterizes in its brief. The evidence
showed that Leal stopped the vehicle under a tree overhang in the summer at around 6:00 p.m. in
the evening when the sun was low in the sky. Because it was summer, the backdrop behind the
brown UPS truck was a brownish hill. For all these reasons, we disagree with UPS that the
evidence only allows for the logical inference that Rankin’s negligence was the sole proximate
cause of his injuries.
Instead, we hold the evidence is legally and factually sufficient to support the jury’s
findings that both Leal’s and Rankin’s negligent acts proximately caused the occurrence. We note
that it was undisputed that Leal stopped his UPS vehicle partially on the road and partially off the
road. It was also undisputed that Leal could have pulled off the road entirely by pulling into the
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driveway of 109 Ranger Creek Road or by pulling off the road completely to park on dirt. UPS
claims “there is no evidence that Leal should have anticipated that his conduct of parking his car
for two minutes with its hazard lights flashing where it was visible for over 2000 feet down a
straight and level roadway would create a danger or cause injury.” However, we agree with Rankin
that there was evidence that Leal parked unreasonably, unsafely, and (as will be explained in a
subsequent section) illegally. There was also evidence that the speed limit on Ranger Creek Road
was forty-five miles per hour. Rankin explained during his trial testimony that as a bicyclist, he
rode his bicycle as close to the side of the road as possible for two reasons: (1) to be courteous to
the other drivers on the road; and (2) for safety reasons. From this evidence, the jury could
reasonably infer that Leal should have foreseen cars and bicyclists traveling on the highway and
that parking the vehicle on the road was an obstruction to others. Thus, we hold that the evidence
is both legally and factually sufficient to support the jury’s findings that the acts of both Leal and
Rankin were proximate causes of the occurrence.
PROPORTIONATE RESPONSIBILITY
UPS also argues the evidence is factually insufficient to support the jury’s findings that
Rankin’s responsibility for the occurrence was equal to (and not greater than) Leal’s responsibility.
UPS contends that “the uncontroverted evidence showed that the view of the parked UPS package
car was unobstructed for over 2000 feet of flat, level roadway, and the accident occurred on a clear,
sunny day.” As explained above, however, the accident occurred at 6:00 p.m., the UPS package
car was parked under a canopy of a large tree, and the UPS package car was brown and the
background hill was also brown. Further, Leal parked his vehicle halfway on a road with a forty-
five miles per hour speed limit. There is factually sufficient evidence to support the jury’s finding
that Leal and Rankin were each 50% responsible for the occurrence.
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Here, the jury made two specific findings with regard to negligence: one finding was based
on negligence per se and the other was based on common-law negligence. The rest of UPS’s issues
relate to Rankin’s negligence per se claim and not to Rankin’s common-law negligence claim.
Thus, the judgment can be affirmed based on the jury’s finding of common-law negligence without
regard to the negligence per se claim. UPS disagrees, claiming that despite the jury’s finding of
common-law negligence, if there is insufficient evidence to support Rankin’s negligence per se
claim, it is harmed because of the jury’s proportionate responsibility finding of 50% liability on
Rankin and Leal, respectively. According to UPS, “[i]t is impossible to know precisely how much
of that 50% responsibility is based on negligence per se from illegal parking (Questions 1 and 2),
and how much is based on simple negligence (Question 3).” UPS argues that if even “1% of that
50% is based on negligence per se, there is reversible error” because a finding that Rankin was
51% responsible would bar any award to him. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.001
(West 2015).
In support of its argument, UPS relies on Romero v. KPH Consolidation, Inc., 166 S.W.3d
212 (Tex. 2005). In Romero, the plaintiff brought a negligence claim against a hospital based on
two different theories of negligence: (1) negligently delaying a blood transfusion for the plaintiff
while he was in surgery and (2) malicious credentialing of the surgeon. Id. at 214. The jury was
instructed that if it found liability under either theory, it should apportion responsibility for the
plaintiff’s injury, which it did: 40% to the hospital; 40% to the surgeon; and 20% to the
anesthesiologist. Id. at 219. On appeal, the supreme court determined that there was no evidence
to support judgment against the hospital for malicious credentialing. Id. at 224. The court then
considered whether the judgment for plaintiff could rest on the jury’s finding that the hospital
negligently delayed a blood transfusion, or whether reversal and remand was required because of
error in the jury question regarding the apportionment of responsibility. Id. at 225. The court
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explained that in answer to Question 1, the jury found that the plaintiff’s injury was caused by the
negligence of the hospital, surgeon, and anesthesiologist. Id. In answer to Question 2, the jury
found that the hospital’s malicious credentialing of the surgeon also caused the plaintiff’s injury.
Id. “Thus, the jury was instructed to apportion responsibility among [the hospital], [the surgeon],
and [the anesthesiologist], and in doing so, to consider [the hospital]’s malicious credentialing of
[the surgeon].” Id.
In considering whether the hospital was harmed by the erroneous submission of Question
2, the supreme court in Romero emphasized that it had previously held in Crown Life Insurance
Co. v. Casteel, 22 S.W.3d 378, 381 (Tex. 2000), that “submitting invalid theories of liability in a
single broad-form jury question is harmful error when it cannot be determined whether the jury
based its verdict on one or more of the invalid theories.” Romero, 166 S.W.3d at 226. Similarly,
the court noted that in Harris County v. Smith, 96 S.W.3d 230, 233-34 (Tex. 2002), it had held that
a broad-form question about damages cannot include elements for which there is no evidence.
Romero, 166 S.W.3d at 226. In considering the facts of its case, the Romero court reasoned that
“[h]aving found malicious credentialing, the jury could not conceivably have ignored that finding
in apportioning responsibility.” Id. at 227. The Romero court explained that “[w]hile in other
instances a jury may simply ignore a factor in the charge that lacks evidentiary support, there are
other instances – and this case is one – where the jury is as misled by the inclusion of a claim
without evidentiary support as by a legally erroneous instruction.” Id. Thus, the court held that
“[i]n all circumstances in which a trial court’s error in instructing a jury to consider erroneous
matters, whether an invalid liability theory or an unsupported element of damage, prevents the
appellant from demonstrating the consequences of the error on appeal, the same analysis must be
applied.” Id. at 227 (internal quotation omitted).
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However, in so holding, the Romero court specifically stated that it was not holding “that
the error of including a factually unsupported claim in a broad-form jury question is always
reversible.” Id. The court noted that Rule 44.1(a)(2) only requires reversal when the error
“probably prevented the appellant from properly presenting the case to the court of appeals.”
Romero, 166 S.W.3d at 227. “But unless the appellate court is reasonably certain that the jury was
not significantly influenced by issues erroneously submitted to it, the error is reversible.” Id.
(internal quotation omitted). The court explained that it had “no such reasonable certainty here; on
the contrary, [the court was] reasonably certain that the jury was significantly influenced by the
erroneous inclusion of the factually-unsupported malicious credentialing claim in the
apportionment question.” Id. at 228. Thus, the supreme court concluded the erroneous submission
of the malicious credentialing claim required reversal of the judgment. Id.
The instant case, however, is distinguishable. Although the jury found UPS liable under
two different theories of liability (negligence per se and common-law negligence), both theories
are based on the same negligent act by Leal: parking of the truck. Thus, regardless of whether that
act is the basis of negligence per se or common-law negligence, the jury based its answers
regarding Leal’s proportionate responsibility on his act of parking the UPS truck. Thus, we can
say with reasonable certainty that the submission of the negligence per se claim did not contribute
to the jury’s proportionate responsibility answer. And, because the submission of the negligence
per se claim did not contribute to the jury’s proportionate responsibility answer, the judgment can
be affirmed based on the jury’s finding of common-law negligence.
NEGLIGENCE PER SE
Alternatively, even if the judgment could not be affirmed based on the jury’s finding of
common-law negligence, UPS’s remaining issues regarding negligence per se would not require
reversal of the judgment.
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A. The Submission of Question 1 to the Jury
UPS argues that the trial court erred in submitting Question 1 to the jury because the
“interpretation and application of the transportation code is a question of law that should have been
decided by the trial court, not the jury.” UPS explains that it objected at trial to Question 1 being
submitted to the jury for the reason that the jury should not be asked to answer a question of law.
In support of its argument, UPS cites case law for the general proposition that construction of
statutory terms is a legal issue to be decided by a court. See City of Rockwall v. Hughes, 246
S.W.3d 621, 625 (Tex. 2008) (“Statutory construction is a legal question we review de novo.”).
We, however, disagree that Question No. 1 was a question of law.
Question 1 asked the jury the following:
When the accident occurred, was the UPS package car stopped, parked or standing
outside of a “residence-district” as defined below?
“Residence district” means the territory adjacent to and including a
highway, if at least 300 feet of the highway frontage is primarily improved
with (a) residences or (b) buildings used for business purposes and
residences. 3
Question 1 is not asking the jury a question of law; it is asking the jury a question of fact: that is,
whether the UPS package car was stopped, parked or standing in a residence district, which the
jury had to decide by considering the legal definition of residence district it was given. That is, it
had to decide whether the UPS car was stopped, parked or standing on a highway where at least
300 feet of highway frontage road was primarily improved with residences. UPS complains that
in determining whether the UPS truck parked in a residence district, the jury had to necessarily
consider what the word “residences” meant. However, that does not mean that the jury was asked
to answer a legal question. Question 1 is no different from Questions 2 or 3, which asked the jury
3
This definition of “residence district” tracked the language contained in section 541.102(2) of the Transportation
Code.
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whether “the negligence, if any, of the persons named below proximately cause the occurrence in
question.” (emphasis added). As in Question 1, in Questions 2 and 3 the jury necessarily had to
apply the legal term proximate cause to arrive at an answer. In doing so, however, the jury did not
answer a question of law – it answered a question of fact.
The difference in the jury charge between the legal term “proximate cause” and the term
“residences” is that the jury was given the definition of proximate cause in the charge but was not
instructed on the definition of “residences.” UPS has not argued on appeal that the trial court erred
by failing to instruct the jury on the definition of “residences” because UPS specifically argued at
trial that such an instruction should not be given to the jury. At the charge conference, Rankin
proposed a definition of “residences” to be included with Question 1. Although UPS objected to
Rankin’s proposed definition, it did not submit its own definition of “residences.” Instead, UPS’s
attorney specifically argued to the trial court, “I’m very concerned if you throw in a definition
from a different case [the one proposed by Rankin], interpreting a different statute, it’s going to
confuse the jury and, perhaps, change the meaning, intent of the statute, so the safe course is just
to not add any additional definitions that are not in the statute.” (emphasis added). Thus, UPS
could not now on appeal complain about the legal term “residences” not being defined for the
jury. 4
UPS further complains that the trial court should not have submitted Question 1 to the jury
because “the relevant characteristics of 109 Ranger Creek Road were not in dispute.” It then cites
Ace Fire Underwriters Insurance Co. v. Simpkins, 380 S.W.3d 291, 303 (Tex. App.—Fort Worth
2012, no pet.), for the proposition that “[w]hen facts are undisputed or conclusively established,
4
To complain on appeal that the trial court erred in failing to submit a definition, a party must request a substantially
correct definition in writing. See TEX. R. CIV. P. 278 (“Failure to submit a definition or instruction shall not be deemed
a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in
writing and tendered by the party complaining of the judgment.”).
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there is no need to submit those issues to the jury.” In Ace Fire, the appellant argued that the trial
court erred by submitting a producing cause definition and instruction in the jury charge. Id. In
deciding that any error was harmless, the court noted that “[w]hen facts are undisputed or
conclusively established, there is no need to submit those issues to the jury.” Id. Because there was
no dispute that the deceased’s fall was a producing cause of his death, the court explained that “[i]t
was unnecessary for the trial court to submit it to the jury.” Id. The court concluded that the “trial
court’s unnecessary inclusion of producing cause did not create a higher or more onerous burden
for Ace Fire because producing cause was superfluous language concerning an undisputed fact.”
Id. at 303-04. The court then cited case law for the proposition that the “submission of undisputed
facts does not ordinarily result in reversible error.” Id. at 304. Similarly, in this case, even if the
facts were undisputed, no reversible error resulted from the submission of Question 1 because, as
will be explained in the subsequent section about sufficiency, the evidence at trial supports the
jury’s finding that the UPS vehicle was not parked in a residence district.
B. Sufficiency of the Evidence with Regard to the Jury’s Negligence Per Se Finding
UPS argues that there is legally and factually insufficient evidence to support the jury’s
negligence per se finding, specifically as it relates to Leal parking the UPS vehicle outside a
residence district. Rankin’s negligence per se claim was based on section 545.301 of the Texas
Transportation Code, titled “Stopping, Standing, or Parking Outside a Business or Residence
District.” It provides the following:
(a) An operator may not stop, park, or leave standing an attended or unattended
vehicle on the main traveled part of a highway outside a business or residence
district unless:
(1) stopping, parking, or leaving the vehicle off the main traveled part
of the highway is not practicable;
(2) a width of highway beside the vehicle is unobstructed and open for
the passage of other vehicles; and
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(3) the highway is in clear view for at least 200 feet in each direction on
the highway.
(b) This section does not apply to an operator of:
(1) a vehicle that is disabled while on the paved or main traveled part of
a highway if it is impossible to avoid stopping and temporarily
leaving the vehicle on the highway;
(2) a vehicle used exclusively to transport solid, semisolid, or liquid
waste operated at the time in connection with the removal or
transportation of solid, semisolid, or liquid waste from a location
adjacent to the highway; or
(3) a tow truck, as defined by Section 545.157(e), that is performing
towing duties under Chapter 2308, Occupations Code.
TEX. TRANSP. CODE ANN. § 545.301 (West Supp. 2014) (emphasis added).
The Transportation Code defines “residence district” as “the territory, other than a business
district, adjacent to and including a highway, if at least 300 feet of the highway frontage is
primarily improved with: (A) residences; or (B) buildings used for business purposes and
residences.” TEX. TRANSP. CODE ANN. § 541.102(2) (West 2011) (emphasis added). With respect
to how “residences” relates to section 541.102(2), the term is not defined by the Transportation
Code. As noted, the jury charge tracked section 541.102(2)’s definition of “residence district,” but
did not include a definition of “residences.” To determine whether there was sufficient evidence
to support the jury’s finding of negligence per se, we must determine what the term “residences”
means in the context of sections 545.301 and 541.102 of the Transportation Code. 5
“We construe a statute’s words according to their plain and common meaning unless they
are statutorily defined otherwise, a different meaning is apparent from the context, or such a
construction leads to absurd results.” Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 52 (Tex.
2014). “Statutory construction also requires us to take statutes as we find them, understanding that
5
In considering sufficiency of the evidence, we must necessarily consider what the term “residences” means with
respect to Question, just as we had to consider what the term “proximate cause” meant in Questions 2 and 3.
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the Legislature purposefully selected the words chosen” Sw. Bell Tele., L.P. v. Emmett, No. 13-
0584, 2015 WL 1285326, at *3 (Tex. Mar. 20, 2015).
UPS argues that the term “residences” “refers to land being used for residential purposes
(not ‘dwellings’ or structures upon that land, as [Rankin] argued at trial).” That is, UPS contends
that “residences” refers to the houses and all the land around the houses. According to UPS, this
interpretation “is supported by the plain language of the statute, and the Legislature’s decision to
use the term ‘residences’ in this part of the statute but ‘dwellings’ in another part of the same
statute (a distinction that basic rules of statutory construction require courts to consider
deliberate).” UPS is referring to section 541.102(3), which defines an “urban district”:
“Urban district” means the territory adjacent to and including a highway, if the
territory:
(A) is not in a municipality; and
(B) is improved with structures that are used for business, industry, or
dwelling houses and located at intervals of less than 100 feet for a
distance of at least one-quarter mile on either side of the highway.
TEX. TRANSP. CODE ANN. § 541.102(3) (West 2011) (emphasis added).
Rankin responds that UPS’s interpretation leads to absurd results. For example, Rankin
argues that under UPS’s interpretation, homes on extremely large acreage could conceivably
qualify as residence districts. Instead, Rankin stresses that “residences” “refer[s] to the residences
themselves, not to the property on which they sit.” Rankin points out that the Transportation Code
must give notice to drivers about where they can legally park. According to Rankin, under UPS’s
interpretation of “residences” as acreage plus dwellings, a driver would not necessarily know
whether at least 300 feet of the highway frontage was primarily improved with residences, thus
defeating the purpose of the statute giving a motorist notice of where he could legally park.
In addition, Rankin argues the plain meaning of the word “residences” supports his
interpretation. Black’s Law Dictionary defines residence as
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1. The act or fact of living in a given place for some time . 2. The place where one actually lives, as distinguished from a
domicile she made her residence in Oregon>. . . . 3. A house or other fixed
abode; a dwelling . 4. The place where a corporation
or other enterprise does business or is registered to do business .
BLACK’S LAW DICTIONARY 1335 (8th ed. 2004).
We agree with Rankin. The plain meaning supports Rankin’s interpretation that
“residences” refers to structures and not to structures plus the acreage around it. And, we agree
that UPS’s interpretation can lead to absurd results and not necessarily give notice to motorists of
where they can legally park.
UPS argues that even if we agree with Rankin’s interpretation of “residences,” there is still
no evidence to support the jury’s finding in Question No. 1 that when the accident occurred, the
UPS vehicle was stopped, parked, or standing outside a residence district. To support this finding
by the jury, there must be evidence that 300 feet of the highway frontage at 109 Ranger Creek
Road was primarily improved with residences. Rankin responds that there is sufficient evidence
to support the jury’s finding that Leal was not parked outside a residence district. He points to the
following evidence admitted at trial: Plaintiff’s Exhibit 26, a survey, and Defendant’s Exhibit 93A,
a Google map of 109 Ranger Creek Road. Plaintiff’s Exhibit 26 shows that 109 Ranger Creek
Road is an eight-acre tract. Plaintiff’s Exhibit 26 also shows two other tracts adjacent to 109
Ranger Creek Road: a 2.23 acre tract and a 7 acre tract. It does not show the dwellings on those
tracts. Defendant’s Exhibit 93A, the Google map of 109 Ranger Creek Road, includes a scale at
the bottom left-hand corner; it shows the dwellings and surrounding acreage at 109 Ranger Creek
Road and the surrounding properties. Defendant’s Exhibit 93A alone is evidence to support the
jury’s finding that 109 Ranger Creek was not a residence district — that is, that 300 feet of the
highway frontage was not primarily improved with residences.
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UPS argues that Exhibit 93A cannot be evidence to support the jury’s finding because it
contains a 2013 copyright and thus is not a picture taken in 2009, the time of the accident. We first
note that UPS introduced Exhibit 93A at trial during the testimony of its accident reconstructionist
expert, Robert J. Swint. Swint, who had worked at NASA for twenty-five years “from a science
and engineering standpoint,” testified he used Google GPS aerial mapping, or GoogleMaps, to
create the exhibit. He used the exhibit and the scale to testify about the distance of unobstructed
view Rankin had at the time of the accident. He then used Exhibit 93A to testify about the
structures on and around 109 Ranger Creek. Later, in argument to the trial court, UPS’s attorney
argued Exhibit 93A was evidence 109 Ranger Creek was a residence district at the time of the
accident:
And in this case plaintiffs have not presented any evidence to suggest that 109
Ranger Creek Road was not associated with other residences collectively that
extended at least 300 feet. In fact, the evidence presented in the case is just to the
opposite, that, first-off, we have at least through the survey presented — it’s already
been in evidence, I think it’s Defendant’s Exhibit 2, and I think plaintiffs actually
admitted it as their own exhibit, as well, combined with the GoogleMaps that shows
the overview, combined with the testimony of Mr. Swint and his 600-foot
photograph showed that there are residences of 107, 109, 111, 115 Ranger Creek
Road, all of which encompass at least 600 to 900 feet of highway frontage. Not
only that, but we had Mr. Vaughn testifying, and business records of UPS that came
into evidence, establishing that those residences received deliveries of packages
from UPS during the two-year period leading up to the date of this accident, July
15, 2009. That, Your Honor, I believe, is sufficient evidence to itself meet the
definition of a “residential district” under the code section, Transportation Code
541.102.
(emphasis added). Thus, at trial UPS introduced Exhibit 93A for the purpose of proving 109
Ranger Creek was a residence district at the time of the accident, argued to the trial court that it
was evidence of that fact, but now on appeal claims the evidence is defective because it contains
a copyright 2013. UPS is estopped from making such an argument. See McInnes v. Yamaha Motor
Corp., 673 S.W.2d 185, 188 (Tex. 1984) (explaining that a party on appeal will not be heard to
complain of improper evidence offered by the other side when he himself introduces the same
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evidence); see also Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 841 (Tex. App.—Houston [1st
Dist.] 1987, writ ref’d n.r.e.). Moreover, at trial, there was evidence that since the time of the
accident, there have been more dwellings built around 109 Ranger Creek Road, not that dwellings
had been torn down. Thus, we conclude there is legally and factually sufficient evidence to support
the jury’s finding that when Leal parked the UPS vehicle at 109 Ranger Creek Road, he was not
parking it in a residence district.
C. Evidentiary Issues Regarding Negligence Per Se
UPS argues the trial court erred in admitting the affidavit of Lori Carroll because it was
irrelevant, conclusory, and constitutes hearsay. In her affidavit, Carroll, an employee of the City
of Boerne, Texas, stated the following:
. . . I have verified that on July 15, 2009, the residence address known as 109 Ranger
Creek Road, Boerne, was outside the City of Boerne’s corporate city limits.
Furthermore, that address and area adjacent to that address were not within any
business or residence district of the City as of June 15, 2009.
We review the admission of evidence for abuse of discretion. See Whirlpool Corp. v.
Camacho, 298 S.W.3d 631, 638 (Tex. 2009). First, the affidavit was relevant. The home at 109
Ranger Creek Road had a Boerne mailing address and the parties had mentioned the city of Boerne
to the jury. Thus, the affidavit makes clear that 109 Ranger Creek Road is not within Boerne city
limits and cannot be part of a business or residence district in the city of Boerne. Second, whether
or not the affidavit was conclusory or inadmissible hearsay, UPS suffered no harm from its
admission. See TEX. R. APP. P. 44.1. The affidavit clearly stated that 109 Ranger Creek is not
within Boerne, Texas; thus, it constituted no evidence regarding whether 109 Ranger Creek was
in a residence district. And, it could not have confused the jury as the affidavit was quite clear that
109 Ranger Creek Road was not within the city of Boerne and thus could not be a business or
residence district in Boerne.
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UPS also argues the trial court erred in excluding portions of the deposition testimony of
Sergeant Allison, the investigating officer, who they claim testified that Leal parked legally at 109
Ranger Creek Road. We review the trial court’s decision to exclude portions of Sergeant Allison’s
testimony for abuse of discretion. See Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill,
Inc., 434 S.W.3d 142, 157 n.97 (Tex. 2014). UPS specifically complains that the following
testimony by Sergeant Allison was excluded:
Q: Exhibit No. 8 is Section 541.102 of the Texas Transportation Code.
Specifically under section 2, it defines what a residence district is. Can you
read the definition of residence?
A: “Residence district means the territory other than a business district adjacent
to and including a highway, if at least 300 feet of the highway frontage is
primarily improved with a residence or building used for business purposes
and residences.”
Q: And based upon I guess the information that you have personally from the
residences out there and also the exhibits that you see showing the
residences, would that qualify as a residence area under the statute?
[Plaintiff]: Object to form.
A: Yes, ma’am. That shows one inch equals 200 feet on the scale here.
Q: Okay the area where this accident happened, 109 Ranger Creek Road, do
you consider that to be a residence district?
[Plaintiff]: Object to form.
A: Yes, it’s residential – residential area, yes.
Q: Why do you say it’s a residential area?
A: Because there are houses all down Ranger Creek Road. There [are] residents
that live there, so we call it a residential area.
*****
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Q: Okay. And were there – was there residence [sic] to the right of 109 Ranger
Creek Road? 6
A: To the right – I believe so, yes.
Q: And how about to the left?
A: Yes, ma’am. Yes, there is.
Q: I’m going to hand that’s [sic] been marked – what I marked as Exhibit No.
9, which is also another part of the Transportation Code 545.301. That
statute applies in areas where it is not a residential area. Considering the
information that you have as to the definition of residence under the statute,
can you tell us whether or not you would apply a statute in a residence that
applies to a non-residential area?
[Plaintiff]: Object to form.
A: This is more of relating if it’s on the highway or cannot stop on a highway
or main travel part of the highway outside of business [sic] area, which this
– I don’t believe this – this would not fit because this is not outside of a
residential area or business area.
Q: Okay.
A: I – if that’s the answer to your question. I’m not sure –
Q: Yes. Would you apply – well–
A: I would not apply this to that.
Q: Okay. And the reason is because the area is what type of area?
A: The area is residential – or residential, yes. I mean I – I’m going to say it’s
[a] residential area. That what it is. That’s what we consider it. That’s what
I’m going to say.
Rankin responds that Sergeant Allison’s deposition testimony is not testimony that Leal
parked legally in a residence district. We agree. During his deposition testimony, Sergeant Allison
would not commit to whether 109 Ranger Creek was a residence district under the Transportation
6
The trial court did allow Sergeant Allison’s testimony that there was a residence to the right and left of 109 Ranger
Creek Road.
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Code. He testified he considered 109 Ranger Creek to be a “residential area” because “there are
houses all down Ranger Creek Road.” “There is [sic] residents that live there, so we call it a
residential area.” Thus, Sergeant Allison was not basing his analysis on the Transportation Code
but rather on the fact that there were houses along the road. In excluding the testimony, the trial
court stated the following:
I think my problem with this questioning is, originally, the way the questions were
asked were, is this a residence district, and obviously that has a specific meaning
that he clearly had no idea what that was. . . . My problem is, that that whole
conversation was precipitated by an attempt to try to get him to qualify it under the
statute, and that’s when you said, “Well, I say it’s a residential area.” You said,
“It’s a district.” Then he said, “Well, yeah, it’s a residential.” He didn’t, obviously,
want to say that because he probably wasn’t clear as to what that was, and so that
whole conversation seems to – there will be nothing in front of that if you start with,
“And why do you say it’s a residential area.”
We find no abuse of discretion by the trial court.
UPS further contends the trial court erred in excluding the following testimony of Megan
McGehee, the resident of 109 Ranger Creek at the time of the accident. In particular, UPS
complains that the following testimony was excluded:
Q: And it looks to me [looking at Googlemaps picture] – well, let me ask you,
are there a number of structures and driveways along Ranger Creek Road
around where your house is located?
A: There [are] neighbors, yeah.
Q: And are those residences – are those – when you say neighbors, do you
mean residences where people and families live?
A: Yes. There [are] families on both sides.
Rankin argues that the trial court’s exclusion of this testimony was harmless because Sergeant
Allison testified there are other residences on either side of 109 Ranger Creek Road. Further, the
Googlemaps Exhibit 93A clearly showed homes on either side of 109 Ranger Creek Road. Indeed,
whether there were homes on either side of 109 Ranger Creek Road was not a disputed fact at trial.
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What was disputed at trial was whether 300 feet of highway frontage was primarily improved with
residences. Thus, the trial court did not abuse its discretion in excluding the testimony.
D. Judicial Admission
UPS also argues that at closing argument, Rankin’s counsel made a judicial admission that
the UPS car was in motion, and not parked, at the time of the accident. Assertions of fact, not
pleaded in the alternative, in the live pleadings of a party are regarded as formal judicial
admissions. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). “A
judicially admitted fact is established as a matter of law, and the admitting party may not dispute
it or introduce evidence contrary to it.” In re Spooner, 333 S.W.3d 759, 764 (Tex. App.—Houston
[1st Dist.] 2010, orig. proceeding). “This rule is based on the public policy that it would be absurd
and manifestly unjust to permit a party to recover after he has sworn himself out of court by a clear
and unequivocal statement.” Id. “Nonetheless, a judicial admission must be clear, deliberate, and
unequivocal.” Id. (citing Regency Advantage Ltd. P’ship v. Bingo Idea–Watauga, Inc., 936 S.W.2d
275, 278 (Tex. 1996)). Rankin argues that when his attorney’s argument to the jury is read in
context, he was not judicially admitting that the UPS car was in motion at the time of the accident.
We agree with Rankin and hold there was no judicial admission of the UPS vehicle being in motion
at the time of the accident.
CROSS-APPEAL ATTORNEYS’ FEES
Rankin brings a cross appeal, arguing that the trial court erred by failing to include in its
calculations of attorneys’ fees awarded to Rankin a multiplier of the lodestar calculation. Rankin
also argues that the trial court erred in failing to award him conditional appellate attorneys’ fees.
Pursuant to section 42.004 of the Texas Civil Practice and Remedies Code, if a settlement
offer is made and rejected, and the judgment rendered is significantly less favorable to the rejecting
party than was the settlement offer, the offering party shall recover litigation costs from the
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rejecting party. TEX. CIV. PRAC. & REM. CODE ANN. § 42.004(a) (West 2015). Here, Rankin made
an offer of settlement, which was rejected by UPS. The final judgment was significantly less
favorable to UPS than Rankin’s offer of settlement. Thus, pursuant to section 42.004(a), Rankin
is entitled to recover “litigation costs” from UPS that Rankin incurred after the date UPS rejected
the settlement offer. See TEX. CIV. PRAC. & REM. CODE ANN. § 42.004(a) (West 2015).
“Litigation costs” include reasonable attorneys’ fees. See TEX. CIV. PRAC. & REM. CODE
ANN. § 42.001(5)(D) (West 2015). Here, the final judgment included an award of $685,620.50 in
attorneys’ fees. Rankin claims the trial court should have used a multiplier and awarded more
attorneys’ fees than $685,620.50.
The award of attorney’s fees generally rests in the sound discretion of the trial court. El
Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012). Rankin argues the trial court abused its
discretion because “Texas law required the trial court to award to the Rankins as their attorneys’
fees a multiplier of the lodestar calculation.” According to Rankin, “[t]he novelty and difficulty of
the issues involved, the contingent nature of the fee arrangement between [him] and [his] counsel,
the amount involved and the result obtained, the fee customarily charged for services such as these
(i.e. a contingent fee), and the ability and experience of [his] counsel all compel that result.” He
requests that we “determine that the trial court erred and abused its discretion and that [he] should
have received a lodestar multiplier of two-and-one-half times as a matter of law and should reverse
the trial court’s award of attorney’s fees and render judgment that [he is] awarded $1,714,051.25
in attorneys’ fees.”
In support of this argument, Rankin states that “[a]n appellant recently asked the Texas
Supreme Court to expressly reject the contingent nature of a fee as a basis for application of a
lodestar multiplier, and the Court refused to do so.” Rankin is referring to El Apple I, Ltd. v. Olivas,
370 S.W.3d 757 (Tex. 2012), where an Applebee’s restaurant manager won a sex discrimination
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suit and was awarded attorneys’ fees. The trial court used the lodestar method to calculate
attorney’s fees. Id. at 759. It then enhanced the lodestar by applying a 2.0 multiplier, resulting in
$464,000 in attorney’s fees for the trial of the case. Id. On appeal, the defendant argued that the
trial court abused its discretion because no basis existed for the trial court’s enhancement of the
lodestar. Id. at 759-60. The supreme court explained that “[u]nder the lodestar method, the
determination of what constitutes a reasonable attorney’s fee involves two steps.” Id. at 760. “First,
the court must determine the reasonable hours spent by counsel in the case and a reasonable hourly
rate for such work.” Id. “The court then multiplies the number of such hours by the applicable rate,
the product of which is the base fee or lodestar.” Id. “The court may then adjust the base lodestar
up or down (apply a multiplier), if relevant factors indicate an adjustment is necessary to reach a
reasonable fee in the case.” Id. The court explained that the “lodestar method aims to provide a
relatively objective measure of attorney’s fees.” Id. at 762. “The starting point for determining a
lodestar fee award is the number of hours ‘reasonably expended on the litigation.’” Id. “The party
applying for the award bears the burden of proof.” Id. at 762-63. “That proof should include the
basic facts underlying the lodestar, which are (1) the nature of the work, (2) who performed the
services and their rate; (3) approximately when the services where performed, and (4) the number
of hours worked.” Id. at 763. The court also emphasized that an appellate court should “accord
considerable deference to a trial court’s findings regarding whether prevailing counsel’s claimed
hours are excessive, redundant, or unreasonable.” Id. at 763-64. “The trial court possesses a
superior understanding of the case and the factual matters involved.” Id. at 764.
With regard to the multiplier, the supreme court in El Apple I recognized that the lodestar
is presumptively a reasonable fee and that enhancements should be rare and reserved for
exceptional cases. Id. The defendant criticized the trial court for basing its decision to apply a
multiplier solely on the contingent nature of the fee and not any exceptional aspect of the case. Id.
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The supreme court explained that it “accept[ed] the premise that lodestar presumptively produces
a reasonable fee, but that exceptional circumstances may justify enhancements to the base
lodestar.” Id. at 765. According to the court, “[w]hether a multiplier is needed, however, cannot
be determined until the base lodestar is known.” Id. Because the court did “not as yet have a
legitimate base lodestar in this case, any comment on the need for a multiplier here is premature.”
Thus, pursuant to El Apple, the trial court has much discretion in determining the amount
of fees and whether to apply a multiplier. El Apple does not stand for the proposition that the trial
court must use a multiplier. Further, as pointed out by UPS, no Texas appellate court has ever
approved the use of a multiplier in awarding attorneys’ fees in the context of “litigation costs” in
chapter 42 of the Texas Civil Practice and Remedies Code. We therefore find no abuse of
discretion by the trial court in failing to apply a multiplier.
Rankin additionally argues the trial court erred by failing to award him conditional
appellate attorneys’ fees. As noted, pursuant to Texas Rule of Civil Procedure 167.4(a), “[i]f a
settlement offer made under this rule is rejected, and the judgment to be awarded on the monetary
claims covered by the offer is significantly less favorable to the offeree than was the offer, the
court must award the offeror litigation costs against the offeree from the time the offer was rejected
to the time of judgment.” TEX. R. CIV. P. 167.4(a) (emphasis added). Rankin argues that “to the
time of judgment” includes the time until an appellate judgment is signed and thus the trial court
abused its discretion by failing to award him conditional appellate attorneys’ fees. UPS responds
that the trial court correctly interpreted “to the time of judgment” to mean to the time the trial
court’s judgment was signed. We agree with UPS. Based on the language of Rule 167 as a whole,
we conclude the trial court did not abuse its discretion by failing to award conditional appellate
attorneys’ fees.
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CONCLUSION
Because there is legally and factually sufficient evidence to support the jury’s findings of
proximate cause and proportionate responsibility, the judgment of the trial court is affirmed based
on the jury’s finding of common-law negligence. Alternatively, even if the judgment could not be
affirmed based on the jury’s common-law negligence finding, we hold that (1) there is legally and
factually sufficient evidence to support the jury’s negligence per se finding; (2) the trial court did
not err in submitting Question 1 to the jury; (3) the trial court’s admission of certain evidence
relating to Rankin’s negligence per se claim was not error or constituted harmless error; and (4)
there was no judicial admission made by Rankin. Finally, we hold the trial court did not abuse its
discretion in failing to include in its calculations of attorneys’ fees awarded to Rankin a multiplier
of the lodestar calculation, nor did the trial court abuse its discretion in failing to award conditional
appellate fees. The judgment of the trial court is affirmed.
Karen Angelini, Justice
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