PLEADINGS, CHARGE AND JUDGMENT ISSUES
IN AUTOMOBILE COLLISION CASES
THOMAS A. CROSLEY
B RANTON & H ALL , P.C.
O NE R IVERWALK P LACE , S UITE 1700
700 N.
S T .
M ARY ' S S TREET
S AN A NTONIO , T EXAS 78205
REAL WORLD
July 2003
San Antonio
CLE

Pleadings, Charge and Judgment Issues in Automobile Collision Cases
TABLE OF CONTENTS
2
P AGE
I. INTRODUCTION ............................................................................................................................... 4
II. THEORIES OF LIABILITY................................................................................................................ 4
A. Negligence – Ordinary Care ..................................................................................................... 4
B. Malice and Gross Negligence .................................................................................................. 4
C. Negligence Per Se ..................................................................................................................... 5
E. Negligence in Operating Defective Vehicle............................................................................ 7
F. Product Liability for Defective Vehicle or Equipment ........................................................... 7
G. High Degree of Care for Common Carriers ............................................................................ 8
H. Child's Degree of Care.............................................................................................................. 8
I. Intoxicated Driver ...................................................................................................................... 8
J. Joint Enterprise ......................................................................................................................... 9
K. Single Business Enterprise ................................................................................................... 10
M. Governmental Liability for Special Defects ................................................................... 11
N. Landowner Liability for Dangerous Conditions Adjacent to Roadway ...................... 11
III. THEORIES OF DEFENSE.............................................................................................................. 12
A. Contributory Negligence ........................................................................................................ 12
B. New and Independent Cause ................................................................................................. 13
C. Sole Proximate Cause ............................................................................................................ 13
D. Emergency ............................................................................................................................... 14
F. Act of God ................................................................................................................................ 16
G. Independent Contractor ......................................................................................................... 16
H. Failure to Mitigate Damages .................................................................................................. 17
I. Defenses Based on Failure to Wear a Seat Belt or Helmet ................................................ 17
J. Pre-existing (or Subsequent) Condition ............................................................................... 17
K. Defense Doctrines Abolished ................................................................................................ 18
L.
Parent’s Negligence Affecting Recovery by or Through Child .......................................... 18
M. Negligence of Passenger ....................................................................................................... 18
N. Family Purpose Doctrine ........................................................................................................ 19
O. Imputed Negligence .......................................................................................................... 19
P. Family Relationships and Immunity ............................................................................... 19
Q. Family Member Exclusion ...................................................................................................... 20
IV. PLEADINGS ................................................................................................................................... 20
A. General ............................................................................................................................... 20
B. Ad Damnum ....................................................................................................................... 20
C. General vs. Special Damages .......................................................................................... 21
D. Specific Amounts for Each Element of Damage not Required .............................. 21
E. Specific Pleadings Control Over General ..................................... Allegations 21
F. Standard Pleadings in Automobile Collision Cases ..................................................... 21
G. Standard Defensive Pleadings in Auto .................................................................Cases 22
H. Special Exceptions ........................................................................................................... 22
I. Strategic and Evidentiary Considerations in Pleadings ..................................................... 23
V. THE COURT’S CHARGE ............................................................................................................... 23
A. General Considerations ................................................................................................... 23
B. Preserving Error in the Charge ....................................................................................... 24

Pleadings, Charge and Judgment Issues in Automobile Collision Cases 3
C. Sample General Negligence Question ............................................................................ 24
VI. ......................................................................................................................... JUDGMENT ISSUES 24
A. General Considerations ................................................................................................... 24
B. Prejudgment Interest ........................................................................................................ 24
C. Post-Judgment Interest .................................................................................................... 25
D. Costs of Court ................................................................................................................... 26
VII. CONCLUSION ............................................................................................................................... 26

Pleadings, Charge and Judgment Issues in Automobile Collision Cases 4

Pleadings, Charge and Judgment Issues in Automobile Collision Cases
I.
INTRODUCTION
The purpose of this article is to provide an
5 negligent conduct, but they cannot close their eyes to that which is plainly visible and which overview of the various theories of recovery and defenses presented in automobile collision cases, and aid in identifying common issues that surface in pleadings, the jury charge, and the final judgment in these cases.
II.
THEORIES OF LIABILITY
A. Negligence – Ordinary Care
The generally accepted definition of negligence is set forth in § 2.1 of the Texas
Pattern Jury Charges ("PJC"), and provides: could have been observed by persons of ordinary prudence similarly situated.
Wilson Industries, Inc.,
Clifton v.
589 S.W.2d 498, 500
(Tex. Civ. App.–Texarkana 1979, writ ref'd n.r.e.). It is a question for the jury whether an approaching adverse vehicle was seen by the motorists and if a failure to see it did or did not constitute negligence on the part of the motorist.
Id.
B. Malice and Gross Negligence
The essential factor distinguishing gross
"Negligence" means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. negligence from ordinary negligence is the mental attitude of the defendant. Historically,
Texas courts struggled with the definition of gross negligence and its application to a particular set of facts. See Burke Royalty co. v.
Walls, 616 S.W.2d 911, 915-16 (Tex. 1981); and Williams v. Steve's Industries, Inc.
, 699
S.W.2d 570, 572 (Tex. 1985). The legislature, however, in its wave of "tort reform" legislation
"Ordinary care" means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.
Negligence is often pled generally in the original petition and, as such, is vulnerable to a special exception for failure to give the opponent fair notice. Exceptions are discussed in more detail in the pleadings section of this paper.
It is well settled by case law that the occurrence of an accident or auto collision is not of itself evidence of negligence, and the motorist's right-of-way is not an absolute right, but is relative, as a driver is legally obligated to exercise the right-of-way with proper regard for his own safety as well as the safety of others.
Hemphill v. Myers , 469 S.W.2d 327 (Tex. Civ.
App.–Austin 1971 original proceeding); Wesley v. Craig , 430 S.W.2d 683, 684 (Tex. Civ.
App.–Waco 1968, no writ); Intges v. Dunn , 311
S.W.2d 87, 881-883 (Tex. Civ. App.–Houston
1958, writ ref'd n.r.e.). Drivers with the right-of-way are not required to anticipate in 1995, supplanted existing common law, making it more difficult for a plaintiff to recover exemplary damage in negligence cases. Act of
April 11, 1995, 74 th
P
A
RAC
NN as:
.
& R EM
Supp. 2002)
.
others; and
C gross neglect. T
EX
Leg. R.S. ch. 19, § 1, 1995,
Tex. Gen. Laws 108, 109 (also at T
ODE
.
C
A
IV
NN
.
P
. § 41.002 (Vernon
Under the revamped statutory scheme, claims for exemplary damages must be based on either fraud, malice or, in wrongful death cases,
RAC
.
& R
EM
.
C
ODE
. § 41.003(a). The statute defines "Malice"
(A) a specific intent by the defendant to cause substantial injury to the claimant; or
(B) an act or omission:
EX .
C IV .
(1) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to
(2) of which the actor has actual, subjective awareness of the risk involved,

Pleadings, Charge and Judgment Issues in Automobile Collision Cases but, nevertheless proceeds with conscious indifference to the rights, safety, or welfare
6
The statute further provides that proof of the elements of exemplary damage must be by clear and convincing evidence. Id.
, § 41.003(b). of others.
T EX .
C IV .
P RAC .
& R EM .
C ODE § 41.001(7).
To get an idea of how difficult it is to uphold a finding of exemplary damages in a personal injury case, consider the pre- "tort reform" case of Universal Services Co. v. Ung ,
904 S.W.2d 638 (Tex. 1995). In Ung , the
Texas Supreme Court reversed a gross negligence verdict because there was "no evidence that the risk created by the [the defendant's] conduct was so extreme as to create the likelihood of serious injury." Id . at 641.
The victim in Ung was working with a cleaning crew alongside an interstate highway when he was struck and killed by a trailer that came loose from a truck after hitting a pothole. The evidence indicated that the deceased's supervisor knew about the pothole, that he had seen a trailer become detached on an adjacent pothole in the past, and that the defendant did not set up adequate barriers to protect the workers or even follow the state's traffic control procedures, as it was required to do by contract. Despite evidence supporting both the extreme risk and conscious awareness prongs under the common
Hondo's Truck Stop, Inc. v. Clemons
SW.2d 725 (Tex. App.–Corpus Christi 1986, no writ); and Pedernales Elec. Cooperative v.
Schultz , 583 S.W.2d882 (Tex. Civ. App. –Waco
1979, writ ref'd n.r.e.); cf Trevino v. Lighting
Laydown, Inc.
, 782 S.W.2d (Tex. App.–Corpus
Christi, 1990, writ denied).
, 716
C.
Negligence Per Se
Negligence per se exists if there is an unexcused violation of a statutory standard.
Jones v. Southwestern Newspaper Corp road found to be negligence per se).
., 694 s.W.2d 455, 458 (Tex. Civ. App.–Amarillo
1985, no writ) (vehicle driven on wrong side of
But c.f. generally, City of Mission v. Cantu , 89 S.W.3d
795 (Tex. App.–Corpus Christi 2002, rehearing overruled (violation of MUTCD is not negligence per se). In automobile cases, as in law of gross negligence, the court still found that there was no evidence of gross negligence, stating:
Even though the adjacent pothole had previously caused at least one other trailer to decouple, this evidence as a matter of law is not sufficient to establish that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the rights or welfare of the person or persons to be affected by it.
Id . at 641.
On the brighter side, however, if a plaintiff is successful in obtaining a finding of exemplary damages, a finding of contributory negligence of less that than the defendant's percentage of responsibility should not serve to reduce his recovery of exemplary damages. See, e.g., most negligence per se cases, the defendant already owes the plaintiff a common law duty to act as a reasonably prudent person, so the chief purpose of the claim of negligence per se based on a violation of a statute is merely to define more precisely what conduct breaches that duty.
An unexcused violation of a statute constitutes negligence as a matter of law if:
(1) The party asserting the negligence per se doctrine belongs to the class of persons protected by the statute; and
(2) The harm to such person is of a type that the statute was intended to prevent.
Moughon v. Wolf , 576 S.W.2d 603 (Tex. 1978).
Consider, for example, the law that makes it illegal to operate a vehicle on the lefthand side of the road within 100 feet of an intersection.
In Harbert v. Mathis , 230 S.W.2d 380, 383
(Tex. Civ. App.–Eastland 1950, no writ), the court held that this provision was enacted for the benefit and protection of all persons and vehicles using the road at or near the intersection. Accordingly, the defendant driver was found guilty of negligence per se in

Pleadings, Charge and Judgment Issues in Automobile Collision Cases attempting to pass another vehicle on the left side of the roadway within 100 feet of the
7 minimum speed limitations shall not be construed to relieve the Plaintiff in proving intersection.
By contrast, in Pool v. Ford Motor Co.
,
715 S.W.2d 629 (Tex. 1988), the Texas
Supreme Court held that it was not negligence per se to violate a speed limit. The court emphasized that the statute clearly stated "the provisions of this Act declaring maximum or
The party alleging negligence per se must assume the burden of proving a statutory violation. Moughon v. Wolf , 576 S.W.2d 603,
604 (Tex. 1978). Once a party has met its burden of proving a statutory violation, the violator may attempt to excuse his conduct by pleading and proving a legally acceptable excuse. The Texas Supreme Court has approved a non-exclusive list of possible circumstances which will excuse a statutory negligence on the part of the defendant as the proximate cause of an accident." Id . at 63. The
Supreme Court has also said that the "ultimate question" of whether to apply a negligence per se is whether it is "fair, workable, and wise."
Perez v. S.N.
, 973 S.W.2d 301 (Tex. 1998).
501 S.W.2d 300 (Tex. 1973).
Robb
See also, Ray v.
, 2002 WL 31835725 (Tex. App.–Dallas
2002) (not designated for publication). When the defendant presents evidence of a legally acceptable excuse for violating a statute, the plaintiff must assume the burden of securing a jury finding of common law negligence because the excuse permits the defendant to avoid the doctrine of negligence per se.
D.
Negligent Entrustment
1.
In General
The doctrine of negligent entrustment violation. Missouri Pacific Railroad Company v. American-Statesman , 552 S.W.2d 99, 102
(Tex. 1977) (citing Rest. (2d) of Torts § 288a).
Some examples of permissible excuses include:
(1) a violation may be excused because of the adverse party's incapacity (such as age, mental status or blindness);
(2) the violator neither knows nor has reason to know of his non-compliance
( e.g.
, a burned out tail light of which the driver has no knowledge and, thus, no way to know of the violation);
(3) the violator is unable, after reasonable diligence or care, to comply;
(4) the violator is confronted by an emergency not due to his own misconduct ( e.g.
, unexpected braking or steering failure or a blowout); and
(5) compliance would involve a greater risk of harm to the actor or to others. ( See, e.g., Impson v. Structural Metals,
Inc.
487 S.W.2d 695 (Tex. 1972);
Zavala v. Trujillo , 883 S.W.2d 242, 246
(Tex. App.–El Paso 1994, writ denied).
The per se violation is submitted as an instruction, and if there is proof of a legal excuse the court may give the jury an instruction on the claimed excuse. L.M.B., Inc. v. Gurecky , applies when a vehicle's owner entrusts a vehicle to someone he knew or should have known was a reckless, incompetent or unlicenced driver.
Industries, Inc.
Williams v. Steves
, 699 S.W.2d 570, 571 (Tex.
1985). The doctrine imposes liability on the owner for his negligence in endangering the public by entrusting a vehicle to an incompetent, reckless or unlicenced driver. However, liability is not imposed upon the owner for his negligence until a negligent or wrongful act which proximately causes an accident is committed by the entrusted driver. Rogers v.
McFarland , 402 S.W.2d 208, 210 (Tex. Civ.
App.–El Paso 1966, writ ref'd n.r.e.)
While entrusting is a separate act of negligence, and in that sense not imputed, it is still derivative in nature in that one may be extremely negligent in entrusting a vehicle, and yet have no liability until the driver causes an injury. See Loom Craft Carpet Mills, Inc. v.
Gorrell , 823 S.W.2 432, 432 (Tex.
App.–Texarkana 1992, no writ). In other words, once a driver's negligence is established,

Pleadings, Charge and Judgment Issues in Automobile Collision Cases liability is placed on the driver, and by negligent entrustment, liability can attach to the owner of the vehicle as well.
2.
The Elements
In order to establish negligent entrustment, a plaintiff must prove two separate acts of negligence – first, that the owner was negligent in entrusting the vehicle, and second, that the drier to whom it was entrusted was negligent and proximately caused the plaintiff to suffer
8
(2) to an incompetent, reckless, or unlicenced driver
(3) when, at the time of the entrustment, the owner knew or should have known that the driver was incompetent, reckless or unlicenced;
(4) the driver was negligent on the occasion in question; and
(5) the driver's negligence was a proximate cause of the plaintiff's damages.
Williams v. Steves Industries, Inc.
, 699 S.W.2d damage. The elements necessary to establish negligent entrustment are:
(1) entrustment of a vehicle by the owner
The entrustment of a vehicle by the owner can be established by either express or implied permission. Russell v. Ramirez , 949 S.W.2d
480 (Tex. App.–Houston [14 th
Dist. 1997, rehearing overruled). Implied permission can be
570, 571 (Tex. 1985).
3.
Proof of Entrustment
378, 386 (Tex. Civ. App.–Tyler 1977, no writ).
To be admissible, the driving record must show incompetence of the driver. La Roque v.
Sanchez , 641 S.W.2d 298 (Tex. Civ. App.–El
Paso 1982, writ ref'd n.r.e.). Proof of one or two shown by circumstantial evidence which would give rise to a reasonable inference that the driver was a given permission. For example, evidence which demonstrates that the owner allowed the driver to drive the vehicle on similar past occasion is sufficient to show implied permission. Arias v. Aguilar , 515 S.W.2d 313,
318 (Tex. Civ. App.–Corpus Christi 1974, no writ). In Farney v. Herr , 358 S.W.2d 758 (Tex.
Civ. App.–Fort Worth 1962, no writ), in which a son took his father's vehicle without permission and contrary to his father's expressed prohibition of the use of the vehicle, the father was not liable for negligent entrustment as a matter of law. Farney v. Herr , 358 S.W.2d 735 (Tex.
Civ. App.–Fort Worth 1962, no writ). traffic citations of the driver is usually insufficient to establish incompetence or recklessness. However, proof of seven citations, a warning letter, and disciplinary action taken by the driver's father, was sufficient evidence in Broesche v. Bullock to support a finding that the father had actual knowledge of his son's incompetence in driving. 427 S.W.2d
89, 93 (Tex. Civ. App.–Houston 1968, writ ref'd n.r.e.).
Proof is required to demonstrate that the owner knew or should have known of the driver's incompetence or recklessness. This can be proven by showing that the owner either witnessed the reckless driving habits of the driver or was aware of prior traffic citations. An
4.
Proof that Driver is Incompetent, Reckless, or Unlicenced
In order to show that a driver was incompetent or reckless, the plaintiff usually offers into evidence the defendant driver's driving record. Although a driver's record is normally inadmissible to show the driver's negligence at the time of the accident, it is admissible to demonstrate that the owner entrusted the vehicle to an incompetent or reckless driver. Hines v. Nelson , 547 S.W.2d entrustment may also be deemed negligent if the operator was incapacitated or intoxicated at the time the vehicle is entrusted. Revisore v. West ,
450 S.W.2d 361, 364 (Tex. Civ. App.–Houston
[14 th
Dist.] 1970, no writ); see also Kilday v.
Siskie , 1994 WL 273414 (Tex. App.–Houston
[14 th
Dist.]) (unpublished).
An owner will be guilty of negligence per se if he entrusts a vehicle to one whom he knows, or should have known, is an unlicenced driver. Mundy v. Pirie-Slaughter Motor
Company , 206 S.W.2d 587, 590 (Tex. 1948).

Pleadings, Charge and Judgment Issues in Automobile Collision Cases
5.
Entrustment of Defective Vehicle
Entrusting a defective vehicle will also give rise to a cause of action for negligent entrustment. The test for determining if the owner was negligent is whether he knew or
9 writ ref'd n.r.e.). Unlike the doctrine of negligent entrustment of a vehicle to an incompetent, reckless, or unlicenced driver, the entrustor of a defective vehicle must be found to be the proximate cause of the collision. In other words, the collision must have been should have know of the defect in the vehicle prior to the entrustment. Monk v. Cooper , 454
S.W.2d 244 (Tex. Civ. App.–Texarkana 1970,
In order for a driver to be held liable for negligently operating a vehicle with defective equipment, it must be first shown that he knew or should have known of the defective condition and the danger that it posed. For example, in proximately caused by the defect in question.
E.
Negligence in Operating Defective Vehicle
(collapse or failure in rear-end collisions), vehicle design in permitting rollover (high center of gravity, narrow wheel base, etc.), design in failing to protect occupants from injury in foreseeable collisions (known as "crash
Colls v. Price's Creameries , 244 S.W.2d 900
(Tex. Civ. App.–El Paso 1951, writ ref'd n.r.e.), the plaintiff was struck by a vehicle that had defective brakes. The court held that there was sufficient evidence to support a finding that the defendant's brakes were defective, but there was no finding that the defendant, in exercising ordinary care, should have known or discovered the defective brakes. Therefore, the defendant was not found liable for driving with defective brakes. (Note: this result seems odd in that it should not have been difficult to prove that the defendant knew the brakes were defective by the time he hit the plaintiff, because presumably he would have had to apply the brakes in the normal course of operating the car and would have realized that they were not performing adequately).
F.
Product Liability for Defective Vehicle or
Equipment
This area of law is the subject of many treatises in its own right and thus is beyond the scope of this article. However, the practitioner should remain aware that any automobile case involving serious injury or death should be evaluated for product liability issues. Most automobile product liability cases involve claims of defective design, and to a lesser extent defective manufacture, of the vehicle or one of its component parts. Types of claims include allegations of defective: braking systems, restraint systems (seatbelts), airbags, seatbacks worthiness").
G.
High Degree of Care for Common Carriers
A common carrier is an entity that transports passengers or things from place to place for hire, and which holds itself out to the public to do so. Railroad Commission of Texas v. United Parcel Service , 614 S.W.2d 903, 910
(Tex. Civ. App.–Austin 1981), aff'd , 629
S.W.2d 33 (Tex. 1981). A passenger is one who contracts, expressly or impliedly, to be transported by a common carrier. Also, one who is given permission by the carrier or an employee of the carrier to be transported without payment by the carrier is a passenger and will be entitled to the same degree of care as a paying passenger.
1949, writ ref'd n.r.e.).
Waits v. Hogan high degree of care for their safety.
, 220
S.W.2d 915, 917 (Tex. Civ. App.–Texarkana
A common carrier owes its passengers a
Dallas R.
& Terminal v. Travis , 8 S.W.2d 941, 942 (Tex.
1935); see Elmer v. Speed Boat Leasing, Inc., 89
S.W.3d 633 (Tex. App. - - 2002). "High degree" of care has been defined as "that degree of care that would have been used by a very cautious, competent, and prudent person under the same or similar circumstances. PJC 2.2; see also Elmer, 89 S.W.3d at 637.
Although a common carrier is not an absolute insurer of the passenger's safety, it si under a duty to exercise more than ordinary care. The carrier's duty to exercise a high

Pleadings, Charge and Judgment Issues in Automobile Collision Cases degree of care extends not only to the actual transportation of the passengers, but also to the
10
853 (Tex. Civ. App.–1904, writ ref'd). A carrier who fails to eject a passenger known to conditions of the carrier's premises and the boarding and unloading procedures. Delta
Airlines, Inc. v. Gibson , 550 S.W.2d 310, 312
(Tex. Civ. App.–El Paso 1977, writ ref'd n.r.e.).
See also Beaumont Transit Co. v. Bean , No.
09-95-385CV, 1997 WL 126790 (Tex. App. - -
Beaumont 1997) (Common carrier breached duty to secure passenger’s wheelchair so as to avoid tipping over). be dangerous or unruly may be held liable for injuries resulting to other passengers. If a passenger is ejected, however, the carrier still owes him a high degree of care to ensure the ejection is at a reasonably safe place. If he is ejected at an unsafe place, then the carrier's responsibility for the passenger's safety will be maintained until such passenger has had a reasonable opportunity to reach a safe place.
A carrier also has a right and duty to eject a passenger who is dangerous or interferes with the reasonable comfort of other passengers.
Texas & P. Ry. co. v. Storey , 83 S.W.2d 852,
There are various standards of care in determining a child's contributory negligence.
A child under the age of five is conclusively presumed to be incapable of negligence as a matter of law. Yarborough v. Berner , 467
S.W.2d 188, 190 (Tex. 1971). A child within the common law definition of childhood, between five and fourteen, is held to the same degree of care as an ordinary prudent child of the same age, experience, intelligence, and capacity would have exercised under similar circumstances. In addition, a child between the
Estate of Lee
T EX .
, 564 S.W.2d 392, 294 (Tex. Civ.
App.–Dallas 1978, writ ref'd n.r.e.).
H.
Child's Degree of Care
P ENAL C ODE A NN . § 49.01 (Vernon 1994).
Subpart (a), it would seem, would be subsumed by the submission of general negligence and ordinary care since it speaks in terms of loss of the "normal" use. On the other hand, it would seem that subpart (b) should give rise to a claim of negligence per so. However, the answer is not clear, as discussed below.
The old rule was that evidence of intoxication is an evidentiary fact to be considered by the jury in determining whether an individual is guilty of some specific act of ages of five and fourteen is not to be held to the standard of an adult merely because negligence per se is involved rather than common law negligence. Children over the age of fourteen will be held to the standard of care of an ordinary prudent adult, unless it can be shown that the child is lacking in discretion or is laboring under some mental disabilities. Id .
I. Intoxicated Driver
The Texas Penal Code defines
"intoxication" as:
(a) Not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into to the body; or
(b) Having an alcohol concentration of
0.10 or more. negligence. Benoit v. Wilson , 239 S.W.2d 792,
789 (Tex. 1951); Rowan and Hope v. Valadez ,
258 S.W.2d 395, 398 (Tex. Civ. App.–San
Antonio 1953, ref'd n.r.e.). Under these cases, the mere fact that the evidence established that an individual was intoxicated was not sufficient to establish an independent ground of negligence, since intoxication was not considered to be an ultimate issue. The rationale behind this approach was that there was no inherent connection between the state of intoxication and an act of negligence. See
Trans-State Pavers, Inc., v. Haynes , 808 S.W.2d
727, 733 (Tex. App.–Beaumont 1991, writ denied) (stating that evidence of alcohol consumption alone is inadmissible unless there is further evidence of negligence).
However, there is also support for the proposition that the operation of a motor vehicle by an intoxicated person is an ultimate issue and

Pleadings, Charge and Judgment Issues in Automobile Collision Cases would support a finding of negligence as a matter of law. See Castro v.
11
In the case of an auto accident, joint enterprise has the effect of imputing the
Hernandez-Davila , 694 S.W.2d 575, 578 (Tex.
App.–Corpus Christi 1985, no writ). It would seem, however, that under the general principles of negligence per se, there must be proof of an alcohol concentration of at least .10.
J. Joint Enterprise
The theory of joint enterprise is to make each party to an action the agent of the other and negligence of the driver of the vehicle to a passenger so as to reduce the passenger's recovery from a third party on a comparative negligence basis. Prosser and Keeton on Torts ,
§ 72 at 517 (5 th
Ed. 1984); Restatement (Second) of Torts , § 491. Likewise, it would be a basis of liability of the passenger to a third party in a suit by a third party against the passenger and his driver. Id ., However, the doctrine has no thereby to hold each party responsible for the negligent acts of the other. The elements of a joint enterprise are:
(1) an agreement, either express or implied, with respect to the enterprise or endeavor;
(2) a common purpose;
(1) a community of pecuniary interest in that purpose; and
(2) an equal right to direct and control the enterprise.
Greg Lair, Inc. v. Spring , 23 S.W.3d 443 (Tex.
App.–Amarillo 2000) (citing Shoemaker v.
Estate of Whistler, 513 S.W.2d 10, 14-17 (Tex.
1974); PJC 6.11.
Finally, the mere fact that there is an agreement between an answer/driver and a passenger of an automobile to share operating expenses is not enough to show the owner had relinquished, in part, his exclusive right to control the manner of driving his automobile.
To raise the issue of joint enterprise so as to be entitled to an issue submission there must additionally be proof of a sharing of control.
Bonney v. San Antonio Transit Company
S.W.2d 117, 119 (Tex. 1959);
Lair, Inc. v. Spring
, 325 see also Greg
, 23 S.W.3d 443 (Tex.
App.–Amarillo 2000) (automobile dealership and test driver had conflicting interests as prospective seller and buyer so as to preclude application of joint enterprise); Texas Dept of
Transportation v. Luke W. Able , 981 S.W.2d
765 (Tex. App.
–Houston [1 st
Dist.]
1998)(agreement between TxDot and transit system to accomplish "uniformity and coordination" in contemplated project was sufficient to support jury's finding of joint enterprise); Ely v. General Motors Corporation , effect upon an action brought between the parties of a joint enterprise. Each of the parties to an enterprise may have a cause of action against the other for their injuries arising from their joint enterprise. Jackson v. Davis , 470
S.W.2d 213, 215 (Tex. Civ. App.–Houston [14 th
Dist.] 1971, no writ).
Similarly, the negligence of a person engaged in a joint enterprise with a minor is not imputable to the minor, since joint enterprise is founded on agency principles and a minor lacks capacity to appoint or act as an agent. Fuller v.
Flanagan , 468 S.W.2d 171, 176-177 (Tex. Civ.
App.–Fort Worth 1971, writ ref'd n.r.e.).
927 S.W.2d 774 (Tex. App.
–Texarkana 1996)
(agreement between auto manufacturer and dealer had no "community of pecuniary interest" so as to impute negligence of dealer's mechanic to manufacturer").
The existence of a joint enterprise is a question of fact to be submitted to the jury.
See PJC 6.11.
K.
Single Business Enterprise
The single business enterprise is an equitable doctrine applied to reflect partnership-type liability principles when corporations integrate their resources and operations to achieve a common business purpose. North American Van Lines, Inc. v.
Emmons , 50 S.W. 3d 103, 119 (Tex.
App.
––Beaumont 2001, pet. den.). The important distinction between alter ego and single business enterprise is that the alter ego theory generally involves proof of fraud, i.e., proof that the corporation is organized and operated as merely a tool or business conduit of another corporation. Id. To recover under a finding of a single business enterprise, no proof

Pleadings, Charge and Judgment Issues in Automobile Collision Cases of fraud is required; instead, the single business enterprise theory relies on equity analogies to partnership principals of liability. Id. Single business enterprise is established when it is proved that two corporations are not operated as separate entities, but instead integrate their resources to achieve a common business purpose. Id. at 120. Courts have held that it may be equitable, under exceptional circumstances, to hold each constituent corporation liable for the debt and liability incurred in the common enterprise. Id.
The single business enterprise doctrine does not require proof of all the elements of a true joint venture or partnership; rather, it is a doctrine founded in equity. Id.
Equal right of control is not required, for example, because the doctrine does not try to determine whether a true joint venture has been established. Id. The doctrine looks to see if principals of equity support a holding that the two entities should be treated as one for the purposes of liability for their acts. Id.
In accordance with Texas case law, a proper jury instruction on the single business enterprise theory is as follows: "Two corporations operate as a single business enterprise if they are not operated as separate entities, but rather integrate their resources to achieve a common business purpose." The jury may properly rely on the following factors to be considered in making their determination:
In Paramount Petroleum Corp. v. Taylor
Rental Center CTR.
, 712 S.W. 2d 534 (Tex.
App.
––Houston [14 th
Dist.] 1986, writ ref. n.r.e.), the court held that the factors to be considered in determining whether the constituent corporations have not maintained as separate entities include, but are not limited to, the following: common employees; common offices; common centralized accounting; payment of wages by one corporation to another corporation’’s employees; common business name; services rendered by the employees of one corporation on behalf of the other corporation; undocumented transfers of funds between corporations; unclear allocation of profits and losses between corporations.
12 whether the corporations had common employees; whether the corporations had common offices; whether the corporations utilize central accounting; whether one corporation paid the wages of the other’’s employees; whether they utilize common business names; whether the employees of one corporation rendered services on behalf of the other corporation; whether there were undocumented transfers of funds between the two corporations; and wether there was unclear allocation of profits and losses between the two corporations. Id.
In North American Van Lines, Inc. v.
Emmons , the court held that there was sufficient evidence for the jury to find the two corporations were operated as a single business enterprise.
Id. at 121. The Court held that the legal effect of the jury finding is that the single business enterprise consisting of the corporation was the statutory employer of the driver at the time of the accident.
In North American Van Lines v. Emmons , the court references an improper jury instruction for a single business enterprise that occurred in the case George Grubbs Enterprises, Inc. v.
Bien , 900 S.W. 2d 337, 338-339 (Tex. 1995). In
Grubbs , the Court gave a jury instruction, but failed to provide the jury with the factors to be considered in making the determination. imposes liability on providers of alcoholic beverages:
. . . upon proof that:
T
EX
.
A.
. . . it was apparent to the provider that
A exclusive the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others.
LCO
.
B
EV
.
C
ODE
§ 2.02(b)(1) (Vernon
1995). The Dram Shop Act "provides the
cause of action for providing an alcoholic beverage to a person 18 years of age or older." TABC § 2.03. Thus, the Act expressly excludes a negligence or negligence per se cause of action against a provider. Southland Corp.
L. Dram Shop Liability
In motor vehicle cases that involve an intoxicated driver, a potential cause of action under the Texas Dram Shop Act should be investigated. Generally, the Dram Shop Act v. Lewis , 940 S.W.2d 84 (Tex. 1997). Social hosts and distributors of alcohol are not liable under the Act. Also, providers whose employees undergo an approved training

Pleadings, Charge and Judgment Issues in Automobile Collision Cases program may not be liable for the actions of their employees, although the employee may
13
For a good discussion of the types of conditions that have been held to be special defects, refer to still be held personally responsible.
§ 106.14(a).
See TABC
M. Governmental Liability for Special
Defects
Apart from its general liability for negligence in the operation or use of motor driven equipment (which includes automobiles), a governmental unit in Texas may be held liable
Sipes v. Texas Dept. of Transp . 949 S.W.2d 516,
519-20 (Tex. App.–Texarkana 1997, writ denied).
N. Landowner Liability for Dangerous
Conditions Adjacent to Roadway
A landowner who maintains a dangerous condition, such as a deep man-made ditch, adjacent to a public roadway is potentially liable for failure "to warn of special defects, such as excavations or obstructions on highways, roads, or streets[.]" T
EX
.
C
IV
.
P
RAC
.
& R
EM
.
C
ODE
A NN . § 101.002(b) (Vernon Supp. 1998).
Ordinarily, in premise defect claims, a
"governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property[.]" Id . § 101.022(a). A finding of a "special defect" elevates the duty owed to that which a private landowner owes an invitee. The key difference is that in ordinary premises defect cases, the claimant must prove that the governmental unit had actual notice of the defect, whereas in special defect cases, constructive notice ( i.e.
, knew or should have known) is all that is required. See, e.g., City of to those traveling on the roadway who are traveling on the roadway who are foreseeably injured by the dangerous condition. The source of this duty is the Restatement of Torts , which provides:
A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling upon the highway, is subject to liability for
;physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.
Grapevine v. Roberts , 946 S.W.2d 841, 843
(Tex. 1997); and Texas Dept. of Highways v.
Kitchen , 867 S.W.2d 784, 786 (Tex. 1993).
Restatement (Second) of Torts , § 368 (1965).
The Restatement position was recently cited with approval by the Texas Supreme Court in
City of McAllen v. De La Garza , 898 S.W.2d
809 (Tex. 1995); Gorrell v. Texas Utilities Elec.
Co., 915 S.W.2d 55, 59 (Tex. App.–Fort Worth
1995).
The comment to the Restatement, also cited by the court, indicates that the "ordinary course of travel" does not apply to situations "where the traveler intentionally deviates from the highway for a purpose not reasonably connected with travel upon it . . . The distinction is thus not between inadvertent and intentional deviations, but between those which are normal incidents of travel and those which are not." Restatement
(Second) of Torts , § 368 cmt. g.
The liability imposed by § 368 applies only to artificial conditions. Comment b to § 368 states that the condition "must have been created by the possessor or his predecessor in possession, or by someone acting on their behalf, or by their permission after the highway has been dedicated , or even by some third person without the knowledge or consent of the possessor." Restatement (Second) of Torts , §
368 cmt. b. (Emphasis added.) The comment goes on to say that it is not necessary that the condition pose an unreasonable risk when it is created; it si enough to subject the possessor to liability that he knows or should know the condition has become unreasonably dangerous.
Id .
An illustration to § 368 provides: "A digs a

Pleadings, Charge and Judgment Issues in Automobile Collision Cases ditch immediately adjacent to a highway upon which his land abuts at a point where cars, this case." De La Garza , 898 S.W.2d at 812.
14 though carefully driven, are likely to skid. B's carefully driven car skids off the highway and into the ditch. A is subject to liability to B." §
368, cmt. g., illus. 1. Another comment provides that the possessor's duty is one of reasonable care in light of the risk; a possessor is not liable if he has taken all reasonable precautions. Id ., cmt. i. Illustration 6 states that under circumstances similar to illustration
III. THEORIES OF DEFENSE
A.
Contributory Negligence
Comparative negligence, which was adopted in Texas by statute in 1973, allows the contributorily negligent plaintiff to recover damages which are reduced proportionately if his negligence is not greater than 50%. Our form of comparative negligence is frequently
1, "A would not be liable to B if he had erected a reasonably sufficient fence between the ditch and the highway . . ." Id .
The facts of the De La Garza case were as follows: the city of McAllen owned a caleche pit, which at some points was ten feet from an adjacent roadway An intoxicated driver veered across the two-lane road and traveled a distance of 40 feet before applying the brakes. The car continued another 100 feet before going through a wire fend, traveled an additional 110 feet, and finally came to rest at the bottom of the caleche pit (which at that point was 29 feet deep). The driver was thrown from the car and killed. City of McAllen v. De La Garza , 898 S.W.2d 809
(Tex. 1995). Although it adopted the referred to as the "51% bar rule" because a claimant may not recover damages if his percentage of responsibility is greater than 50 percent. See T EX .
C IV .
P RAC .
& R EM .
C ODE
A NN . § 33.001. Prior to the enactment of this legislation, contributory negligence of any degree on the part of the plaintiff was an absolute bar to the plaintiff's recovery. The
Texas comparative responsibility statute was amended in 1995 and has been renamed
"Proportionate Responsibility.
The amount of exemplary damages a plaintiff is entitled to recover based on a finding of the defendant's gross negligence is not reduced by the plaintiff's contributory negligence, unless the Plaintiff's proportionate
Restatement view and found that the Plaintiff was not traveling with reasonable care on the roadway and that his deviation was not in the ordinary course of travel, the court did not reach the issue of whether the deviation from the road and into the pit was foreseeable; instead, the court found that "‘foreseeable' or not, no duty was owed by the city under the circumstances of
A pleas of contributory or comparative negligence, or "proportionate responsibility," as it si now characterized, in a negligence action is properly a subject of special exceptions when a party's negligence is pled generally. The requirement of fair notice governs pleadings in the Texas and requires that a party be put on notice of what his opponent is claiming in order to prepare his case. See Davis v. Quality Pest
Control , 641 S.W.2d 324 (Tex. App.–Dallas
1984, no writ).
In submitting comparative negligence to a responsibility is such that he would be barred from recovering actual damages. See Hondo's
Truck Stop, Inc. v. Clemons , 716 S.W.2d 725
(Tex. App.–Corpus Christi 1986, no writ);
Pedernales Electric Cooperative v. Schulz , 583
S.W.2d 882 (Tex. Civ. App.–Waco 1979, writ ref'd n.r.e.). jury, a percentage allocation question is submitted when there have been findings in previous questions in the charge that the negligence of more than one person proximately caused the collision. The proportionate responsibility question that is recommended in the Texas Patter Jury Charges is:
If you have answered "Yes" to Question
_______, for more than one of the persons named below, then answer the following question. Otherwise, do not answer the following question.

Pleadings, Charge and Judgment Issues in Automobile Collision Cases
QUESTION ______
Constructors, Inc.
15
, 592 S.W.2d 16 (Tex. Civ.
App.–Beaumont 1979, no writ). This defense
What percentage of the negligence that caused the occurrence do you find to be attributable to each of those found by you, in your answer to Question ______, to have been negligent?
The percentages you find must total 100 percent. The percentages must be expressed in whole numbers. The negligence attributable to a person named below is not necessarily measured by the number of acts or omissions found. The percentage attributable to a person need not be the same percentage attributed to that person in answering another question.
A.
Don Davis ______ %
B.
Paul Payne _____ %
C.
Sam Settlor _____ %
D.
Responsible Ray _____%
PJC 4.3.
Total 100%
B. New and Independent Cause
New and independent cause, when raised by the pleadings and evidence, is an element to be considered by the jury in determining the existence or non-existence of proximate cause.
As such, it technically is not an affirmative defense; rather, it is an extension of the concept is sometimes referred to as "superseding intervening cause."
New and independent cause is defined as:
The act or omission of a separate and independent agency, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question, and thereby becomes the immediate cause of such occurrence.
New and independent cause is not submitted as an issue, but as an instruction.
The general rule is that for a new and independent cause to break the chain of causation and relieve the defendant of liability, the intervening cause must supersede the original act of negligence and the unforeseeable.
An intervening cause that is reasonably foreseeable by the defendant is not a new and independent cause so as to break the chain of causation between the defendant's negligence and the injury complained of. See Teer v. J.
Weingarten, Inc.
, 426 S.W.2d 610 (Tex. Civ.
App.–Houston [14 th
Dist.] 1968, writ ref'd n.r.e.). Submission of this instruction if there is no evidence to raise it is improper and may be reversible error. Galvan v. Fedder , 678 S.W.2d
596, 598 (Tex. App.–Houston [14 th
Dist.] 1984, no writ).
C.
Sole Proximate Cause of proximate cause. See Walk v. Riggers and
Sole proximate cause pertains to neither the conduct of the plaintiff nor that of the defendant, but to a third party, whose conduct would be solely causative of the occurrence at issue. Illey v. Hatley , 693 S.W.2d 506, 509 (Tex App.–San
Antonio 1985, no writ). It is not properly alleged against the conduct of an opposing
Ham , 454 S.W.2d 451 (Tex. Civ. App.–Austin
1970, writ ref'd n.r.e.);
Co. v. Bailey
Dallas Ry. and Terminal
, 250 S.W.2d 379 (Tex. 1952); Illey v. Hatley , 693 S.W.2d 506 (Tex. App.–San
Antonio 1985, no writ).
Like new and independent cause, sole proximate cause requires an "add-on" to the party, but is available only to show that the act of a non-party or an extraneous happening was the cause for the occurrence. See Atchison,
Topeka and Santa Fe Railway Company v. definition of proximate cause contained in the court's charge. The last sentence of the standard from definition of proximate cause for use in the court's charge states: "There may be

Pleadings, Charge and Judgment Issues in Automobile Collision Cases more than one proximate cause of an event."
See PJC § 2.4. When there is evidence that a
16 proximate cause instruction was upheld on the basis that there was no evidence to show that the person's conduct that is not submitted to the jury is the sole proximate cause of the occurrence, the PJC proposes that the following instruction be submitted in lieu of the last sentence:
There may be more than one proximate cause of an event, but if an act or omission of any person not a party to the suit was the
"sole proximate cause" of an occurrence, then no act or omission of any other person accident resulted solely from the acts of a third party. Illey , 693 S.W.2d at 509. Thus, the issue of sole proximate cause was held not to have been raised by the evidence.
Sole proximate cause is an inferential rebuttal and, in accordance with T EX .
R.
C IV .
P.
277, should be submitted only in the form of an instruction. See Jackson v. Fontaine’s Clinics ,
499 S.W.2d 87 (Tex. 1973) could have been a proximate cause.
PJC 3.2; See American Jet, Inc. v. Leyendecker ,
683 S.W.2d 121, 126 (Tex. App.–San Antonio
1984, no writ). The giving of a sole proximate cause instruction when it has not been raised by the evidence can be grounds for reversal. See
First International Bank v. Roper Corp., 686
S.W.2d 602 (Tex. 1985); see also Huerta v.
Hotel Dieu Hospital , 636 S.W.2d 208 (Tex.
App. - - El Paso), rev’d on other grounds
, 639
S.W.2d 462 (Tex. 1982).
A person’s conduct need not be negligence to be a sole proximate cause. When an individual acts to cause injury, even if such conduct is not found to be negligence, so long as that person is not a party his or her conduct can constitute the sole proximate cause of the occurrence in question. See Plemmons v. Gary,
321 S.W.2d 625 (Tex. Civ. App. - - Beaumont
1959, no writ); see also Permastone Co. v.
Note that sole proximate cause, unlike unavoidable accident (discussed infra ), may encompass acts by humans and is not limited to non-human agencies or conditions.
D.
Emergency
This affirmative defense is commonly referred to as “sudden emergency.” The PJC suggests the following instruction for this defense:
When a person is confronted by an
“emergency” arising suddenly and unexpectedly which was not proximately caused by any negligence on his part and which, to a reasonable person, requires immediate action without time for
Teakell, 653 S.W.2d 483 (Tex. App. - - Corpus
Christi 1983), rev’d on other grounds,
S.W.2d 563 (Tex. 1986);
658
Smith v. Red Arrow
Freight Line, 460 S.W.2d 257 (Tex. App. - -
San Antonio 1970, writ ref’d n.r.e.).
Typically, a defendant will claim that the negligent acts of a plaintiff were the sole proximate cause of the occurrence in question.
The use of this doctrine by a defendant against a plaintiff is inappropriate and when excepted to should be stricken. See Dallas Ry. & Terminal
Co. v. Bailey, 250 S.W.2d 379, 385 (Tex. 1952); see also Illey v. Hatley, 693 S.W.2d 506 (Tex.
App. - - San Antonio 1985, writ ref’d n.r.e.). In
Illey , which involved an auto/pedestrial collision, the trial court’s refusal to give a sole deliberation, his conduct in such an emergency is not negligence or failure to use ordinary care if, after such emergency arises, he acts as a person of ordinary prudence would have acted under the same or similar circumstances.
PJC 3.3
This defensive doctrine’s effect is to lower the standard of care when an emergency triggers a need for “immediate action without time for deliberation.” The doctrine does not change or eliminate the requirement that the individual act as a “person of ordinary prudence,” but rather it changes the circumstances under which the conduct of the person of ordinary prudence is judged. See Trezza v. Dane, 370 F.2d 1006 (5 th
Cir. 1967).

Pleadings, Charge and Judgment Issues in Automobile Collision Cases
This doctrine can apply to either the plaintiff or the defendant in determining order to raise the issue of emergency,
Hatley,
17 see Illey v.
693 S.W.2d 506 (Tex. App. - - San whether that person acted reasonably in an emergency not created by his own negligence.
The rationale for this doctrine is that a person, if in a state of sudden emergency, without sufficient time to consider and weigh all of the circumstances or best means that may be adopted to avoid an imminent danger, is not necessarily guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method.
Sanders v. Davila,
Glazener,
See
550 S.W.2d 709 (Tex. App. -
- Amarillo 1977, writ ref’d n.r.e.); see also Del
Bosque v. Heitman Bearing-Cortez, Co., 474
S.W.2d 450 (Tex. 1971). The essence of this defensive doctrine is that the fact finder may conclude that the conduct of a party which in other circumstances would be unreasonable or imprudent, is not so in an emergency situation.
See e.g., Del Bosque v. Heitman Bearing-Cortez
Co., 474 S.W.2d 450 (Tex. 1971); Francis v.
Cogdell, 803 S.W.2d 868 (Tex. App. - -
Houston [1 st
Dist.] 1991, no writ).
The sudden emergency defense is not available if the actor’s own negligence placed him in the situation that required the quick, but injury-causing response. Bounds v. Scurlock
Oil Co., 730 S.W.2d 68 (Tex. App. - - Corpus
Christi 1987, writ ref’d n.r.e.);
Campbell v.
McKinney, 402 S.W.2d 262 (Tex. Civ. App. - -
Houston 1966, writ ref’d n.r.e.). This doctrine is applicable only when the individual seeking its application was free of negligence before the emergency arose. Taylor v. Bair, 414 F. 2d 815
(5 th
Cir. 1969). The emergency doctrine cannot be a basis for liability, but is used only for purposes of excusing a party’s conduct that would otherwise be negligent. Vaughan v.
459 S.W.2d 898 (Tex. Civ. App. - -
Amarillo 1970, writ ref’d n.r.e.). Also, because it does not constitute a separate ground of recovery in itself, emergency cannot be used as an offensive doctrine.
1972, writ ref’d n.r.e.).
Wilson v. Whitcher, 477
S.W.2d 344 (Tex. Civ. App. - - Fort Worth
As to the quantum of proof required in
Antonio 1985, no writ), in which the court held the evidence was insufficient to raise the issue of sudden emergency. For a case in which it was held that there was sufficient evidence to raise the issue of emergency so as to justify an instruction to the jury, see Carter v. Helicopter
Ambulance Service of North Texas, Inc., No.
05-95-00468-CV, 1996 WL 403987 (Tex. App. –
Dallas Jul. 19, 1996) (not designated for publication), citing Missouri Pacific Railroad
Company v. Lane, 720 S.W.2d 830 (Tex. App.
-- Texarkana 1986, no writ).
The emergency doctrine is an inferential rebuttal and, if raised by the pleadings and evidence, should be submitted by instruction only. See McDonald Transit, Inc. v. Moore,
565 S.W.2d 43 (Tex. 1978).
E.
Unavoidable Accident
Unavoidable accident is a defense that is frequently raised in automobile litigation. It is defined as “an event not proximately caused by the negligence of any party to it.”
Reinhart v.
Young, 906 S.W.2d 471, 472 (Tex. 1995) . It applies if there is evidence that the occurrence was caused by unforeseeable non-human conditions.
The purpose of the instruction is to ensure that the jury understands that it does not necessarily have to place blame on a party to the suit for the accident complained of. Urista v. Bed, Bath, & Beyond, Inc.
, No.
01-02-00150-CV, 2003 WL 21357307, at *1
(Tex. App. – Houston [1st Dist.] Jun. 12, 2003), citing Reinhart v. Young , 906 S.W.2d at 472;
Friday v. Spears, 975 S.W.2d 699, 701 (Tex.
App.
– Texarkana 1998);
Ordonez v. M.W.
McCurdy & Co., Inc.
, 984 S.W.2d 264, 271
(Tex. App. – Houston [1st Dist.] 1998, no pet.).
The instruction is most often used to inquire about the causal effect of some physical condition or circumstance such as fog, snow, sleet, wet or slick pavement, or obstruction of view, or to resolve a case involving a very young child who is legally incapable of negligence.
Urista, 2003 WL 21357307, at *1, citing
Reinhart v. Young , 906 S.W.2d at 472;
Ordonez , 984 S.W.2d at 271.

Pleadings, Charge and Judgment Issues in Automobile Collision Cases
Because an unavoidable accident is a causation-based defense, it focuses on conditions or agencies which are claimed to be the cause of the accident to the exclusion of any conduct by any party being the cause of the accident. The defense is raised by proof of some non-human agency or physical condition as the cause of the accident. Examples include fog, snow, gravel on the road, slick pavement, obstruction of view, an unforeseen obstacle, such as a tree limb or an animal, obstructing the roadway, etc. Situations in which a driver had an unforeseeable acute medical problem, such as a stroke or heart attack, or where the defendant’s vehicle failed suddenly and without warning, would support assertion of the unavoidable accident defense.
See, e.g., McDonald v. Brennan, 704 S.W.2d
136 (Tex. App. - - El Paso 1986, writ ref’d n.r.e.); Clark v. Cotten, 573 S.W.2d 886 (Tex.
Civ. App. - - Beaumont 1978, writ ref’d n.r.e.);
Fister v. Jackson, 276 S.W.2d 910 (Tex. Civ.
App. - - San Antonio 1955, no writ). Similarly, a child too young to be capable of negligence, who darted out into the roadway, has been held t o be in the nature of a “physical condition or circumstance” giving rise to an unavoidable accident. See Yarborough v. Berner, 467
S.W.2d 188 (Tex. 1971); cf. Otis Elevator Co. v.
Shows , 822 S.W.2d 59, 63 (Tex. App. –
Houston [1st Dist.] 1991) (discussing that
Yarborough should not be read to mean that a jury may be permitted to find a young child responsible for the consequences of his own conduct under a guise of unavoidable accident.
Rather, an instruction on unavoidable accident is proper only when th e child’s conduct helps a jury to understand the conduct of the alleged tortfeasor in context of a situation in part created by the child).
This defensive doctrine is almost always pled generally against the plaintiff and is a prime target for special exception. If the allegation is excepted to, a party pleading unavoidable accident generally must plead specific facts setting forth what the party claims to be the non-human condition or agency which was the cause of the occurrence as part of the fair notice requirement of Tex. R. Civ. P. 45.
See Mason v. Ratcliff, 437 S.W.2d 320 (Tex.
Civ. App. - - San Antonio 1969, no writ).
One of the most common misuses of this doctrine is the submission of an instruction on unavoidable accident when it has not been raised by the evidence. In order for it to be raised, the non-human condition which is relied upon must have been unforeseeable. Thus, if a defendant is relying upon wet pavement as a non-human condition to be the cause of the accident, he must show that the wet pavement was not foreseeable. It would appear, therefore, that when properly challenged, wet pavement usually would not be an appropriate basis for the unavoidable accident defense unless the defendant came upon it suddenly and unexpectedly.
Unavoidable accident is an inferential rebuttal and, if raised by the evidence, should be submitted by instruction only. Yarborough v. Berner, 467 S.W.2d 188 (Tex. 1971).
The unavoidable accident instruction recently has been viewed disfavorably by the courts, however. According to the Texas
Supreme Court, an instruction on unavoidable accident should be avoided due to the risk of misleading the jury. Urista, 2003 WL
21357307, at *1, citing Reinhart v. Young , 906
S.W.2d at 472. The potential for confusion ex ists because the concept of an “unavoidable” accident is subsumed in the standard negligence and ordinary care inquiry, which is predicated upon conduct occurring under the
“same or similar circumstances.” See Reinhart v. Young, 906 S.W.2d at 477 (Enoch, J., concurring). For this reason, most jurisdictions have prohibited or severely limited the use of this instruction in negligence cases. See
Reinhart v. Young, 906 S.W.2d at 472-73, fn.
1-3; Urista, 2003 WL 21357307, at *1.
Reinhart v. Young, which is a plurality opinion authored by Chief Justice Phillips, offers a comprehensive analysis of the unavoidable accident defense, its history, and the arguments for and against it.
F.
Act of God
This defense is a variation of “unavoidable accident.” The PJC proposes the following instruction:
18
If an occurrence is caused solely by an “act of God,” it is not caused by the negligence of any person. An occurrence is caused by an act of God if it is caused directly and exclusively by the violence of nature,

Pleadings, Charge and Judgment Issues in Automobile Collision Cases without human intervention or cause, and could not have been prevented by PJC 3.5 reasonable foresight or care.
“Act of God” is an inferential rebuttal and, if raised by the evidence, should be submitted by instruction only. Scott v. Atchison, Topeka &
Santa Fe Ry., 572 S.W.2d 273 (Tex. 1978).
The instruction should be given in lieu of, and not in addition to, the instruction for unavoidable accident. It is difficult to imagine an automobile accident being caused directly
19 liable for the independent contractor’s actions).
H.
Failure to Mitigate Damages
This doctrine evolves out of a claim that a plaintiff’s damages are in part caused by his own acts or omissions. The rationale behind the doctrine is to prevent a defendant from being held accountable for damages that he has not caused. Kerby v. Abilene Christian College, and exclusively by the violence of nature, and without human intervention or cause, since violent weather usually can do no more than create the conditions which make an accident more likely, and there is almost always some element of human conduct that plays a role in the accident. Additionally, the unavoidable accident instruction would seem more advantageous from a defendant’s standpoint, and since it is improper to include an instruction both for act of God and for unavoidable accident, it would be the very rare car wreck case that would include an “act of God” instruction in the court’s charge.
G.
Independent Contractor
“Independent contractor” is an inferential rebuttal asserted by an employer in response to a plaintiff’s claim of employer liability under the doctrine of Respondeat Superior for the negligence of the employee driver. For the common definition of independent contractor, see PJC 6.8 ( citing Eagle Trucking Co. v. Texas
Bitulithic Co., 590 S.W.2d 200, 211-12 (Tex.
Civ. App. - - Tyler 1979), rev’d on other grounds, 612 S.W.2d 503 (Tex. 1981). The degree of control exercised over the actions of the independent contractor is a central issue in
503 S.W.2d 526 (Tex. 1973). A jury instruction on this issue is appropriate if there is evidence that the plaintiff, through want of care, aggravated or failed to mitigate the effects of his injuries resulting from the occurrence in question. Moulton v. Alamo Ambulance
Service, 414 S.W.2d 444 (Tex. 1967). For instance, in cases: in which there is evidence of negligence on the part of the plaintiff in failing to consult a doctor as soon as a reasonably prudent person would, in failing to follow a doctor’s advice, or simply in failing properly to care for and treat injuries which do not require the attention of a doctor.
Moulton, 414 S.W.2d at 450.
Moulton further provides that the doctrine of mitigation of damages should be placed before the jury in an instruction limiting recovery to those damages which are found to be proximately caused by the defendant. The
Moulton case expressly states that mitigation of damages is not an affirmative defense entitling a defendant to submit a question to the jury in connection with this matter. The PJC recommends the following exclusionary this defensive theory. See Greater Houston
Transp. Co. v. Phillips, 801 S.W.2d 523 (Tex.
1990); but see Read v. Scott Fetzer Co.
, 990
S.W.2d 732 (Tex. 1998) (finding, not an issue of vicarious liability, but rather that the distributor retained actual control over specific aspects of details of work performed by the independent contractor such that the distributor was held instruction for failure to mitigate personal injury damages:
Do not include any amount for any condition resulting from the failure, if any, of Plaintiff to have acted as a person of

Pleadings, Charge and Judgment Issues in Automobile Collision Cases ordinary prudence would have done under the same or similar circumstances in caring
James B. Sales,
20
Limitations on Recovery of
Damages in Personal Injury Actions, 18 S. Tex. for and treating his injuries, if any, that resulted from the occurrence in question.
PJC 7.9. For a discussion of the standards governing submission of this instruction, see
Although Texas has a mandatory seat belt law, see T
EX
.
T
RANSP
.
C
ODE
§ 545.413, and a motorcycle helmet law, see T
EX
.
T
RANSP
.
C
ODE
§ 661.003, the failure to wear a seat belt or
L.J. 217, 246-53 (1977).
I.
Defenses Based on Failure to Wear a Seat
Belt or Helmet defendant’s negligence are closely connected and intermingled to the extent that the jury might become confused.
& Baggage Co. v. Green,
See also Yellow Cab
277 S.W.2d 92 (Tex.
1955). This defense probably does not need to be pled by the defendant. It is probably enough that the evidence adduced at trial supports the helmet may not be introduced into evidence to show comparative negligence; nor may such evidence be offered to show that the injured party failed to mitigate their damages. For seat belts, the evidentiary ban is express, both in case law and by statute. The Transportation Code succinctly provides: “Use or nonuse of a safety belt is not admissible evidence in a civil trial.”
T EX .
T RANSP .
C ODE § 545.413(g). Similarly, the case law holds that failure to use a seat belt is neither a basis for negligence liability,
Quinius v. Estrada, 448 S.W.2d 552 (Tex. Civ.
App. - - Austin 1969, writ ref’d n.r.e.), nor a basis for contributory negligence,
Co. v. Snow,
Red Top Taxi
452 S.W.2d 772 (Tex. Civ. App. -
- Corpus Christi 1970, no writ), nor a basis for failure to mitigate damages. Carnation Co. v.
Wong, 516 S.W.2d 116 (Tex. 1974); Pool v.
Ford Motor Co., 715 S.W.2d 629 (Tex. 1986)
(reaffirming Carnation and the statutory prohibition evidence).
J.
against introduction of
Pre-existing (or Subsequent) Condition this
This defense is used to challenge the causal link between an accident and the plaintiff’s alleged injuries. It commonly is used to claim that some pre-existing or subsequent disease or condition is the cause of the individual’s incapacity or damages. PJC 7.7 and 7.8 contain exclusionary instructions for cases where there is evidence that the plaintiff is suffering from a physical infirmity not caused or aggravated by the occurrence made the subject of the suit, and if the injuries flowing from the prior to subsequent infirmity and those flowing from the defendants claim that the instruction is necessary to avoid confusing the jury.
K.
Defense Doctrines Abolished
While all viable defensive theories, other than contributory negligence (proportionate responsibility), are submitted now in the form of an instruction, several defensive theories have ben abolished and are no longer submitted by either an issue or an instruction. They include:
A.
Assumption of the Risk - - Farley v.
MM Cattle Co., 529 S.W.2d 751, 758
B.
C.
(Tex. 1975);
Imminent Peril - -
557 S.W.2d 770 (Tex. 1977);
Last Clear Chance (Discovered Peril) -
- French v. Gribsby, 571 S.W.2d 867
(Tex. 1978).
These defensive doctrines were subsumed long ago by the submission to the fact finder of the plaintiff’s comparative negligence. The facts giving rise to these defensive theories are now evaluate din the proportionate responsibility scheme.
Davila v. Sanders,
L.
Parent’s Negligence Affecting Recovery by or Through Child
Generally, a parent’s negligence will not defeat a claim by a child for the child’s injuries.
In a wrongful death claim arising from the child’s death, however, a parent’s negligence

Pleadings, Charge and Judgment Issues in Automobile Collision Cases that is a proximate cause of the occurrence may bar or reduce the parent’s claim under the
Wrongful Death Act. See
Missouri-Kansas-Texas R. Co. v. Hamilton, 314
S,W,2d 114 (Tex. Civ. App. - - Dallas 1958, writ ref’d n.r.e.). Similarly, a parent’s negligence would bar or reduce the recovery by the parent for the parents’ claim in a personal injury case for the parent’s recovery of the child’s medical expenses, loss of services of the child, or for bystander recovery.
Tipton v. Stuart,
21 driver of an automobile is not imputed to the passenger. The passenger is generally not required t o keep a constant lookout and may trust the vigilance and skill of the driver.
480 S.W.2d 795, 798 (Tex.
Civ. App. - - Fort Worth 1972, writ ref’d n.r.e.).
Thus, a passenger may take his attention off the road, read a book or go to sleep without being guilty of negligence. no writ);
Galvan v. Sisk,
S.W.2d 719 (Tex. Civ. App. - - Amarillo 1975,
Hoelscher v. Bradberry
526
, No.
M.
Negligence of Passenger
The general rule is that negligence of the
To ensure his own safety a passenger is under a duty to exercise the same degree of care as an ordinary prudent person under the same circumstances. Therefore, an exception exists if the passenger is aware that there is a particular danger which he has reason to believe that the driver, if unaided, will not perceive. In such cases the passenger may be guity o contributory negligence if he does not keep himself in a position to advise the driver of the existing dangers. In addition, the passenger may be guilty of contributory negligence if the passenger is aware that the driver is inattentive or careless.
Examples include:
(1) In Tipton v. Stuart , the passenger was found contributorily negligent under the following conditions: the passenger was aware that the driver was not familiar with the road, the car was driven at speeds up to 85 mpg, and the passenger saw that the driver had gone through two blinking traffic lights immediately prior to the accident without slowing down. The court held that t under these circumstances a reasonable passenger would realize the excessive dangers created and had a duty to protest such sppeds.
480 S.W.2d 795 (Tex. Civ. App.
–Fort Worth
1972, writ ref'd n.r.e.).
(2) A passenger who voluntarily rides in an automobile with a drier known to be intoxicated, or who, after entering the vehicle, discovers the driver to be intoxicated and fails to leave the vehicle when given a fair and reasonable opportunity, will be charged with contributory negligence. Combs v. Morrill , 470 S.W.2d 222,
224 (Tex. Civ. App.
–San Antonio 1971, writ ref'd
B14-87-00491-CV, 1998 WL 56907, at *1 (Tex.
App. – Houston [14th Dist.] Jun. 2, 1988) (not designated for publication).
n.r.e.).
(3) A passenger was found contributorily negligent under the following conditions: The passenger was aware that the driver had been smoking marijuana, the passenger was aware that the driver was speeding through a residential neighborhood, and the passenger was aware that the driver was unfamiliar with the vehicle. The passenger did not act as an ordinary, reasonable, or prudent person. The passenger failed in his duty to observe a lookout and should have told the driver to slow down. Adams v. Morris , 584 S.W.2d 712 (Tex.
Civ. App.
–Tyler 1979, no writ).
N.
Family Purpose Doctrine
Unlike some states, the general rule in
Texas is that no principal-agent or master-servant relationship exists between a parent and a child. This "family purpose doctrine" was expressly rejected in Texas for determining liability of a parent for the negligent operation of an automobile driven by a child for their own pleasure or purpose. Ener v. Gandy ,
158 S.W.2d 989 (Tex. 1942); Trice v.
Bridgewater , 81 S.W.2d 63 (Tex. Comm. App.
1935). There are exceptions. In at least two cases, Texas courts have held that if a child is driving a family vehicle at the behest of his or her parents and not for the child’s own purpose or pleasure, then the parents can be held vicariously liable through a principal-agent relationship. In Anda v. Blake, 562 S.W.2d 497
(Tex. Civ. App. - - San Antonio 1978, no writ), the court held that a mother passenger in a vehicle driven by her daughter could be held liable since the daughter was driving the car for the benefit of her mother and not for the

Pleadings, Charge and Judgment Issues in Automobile Collision Cases daughter’s own purpose or pleasure. See also
O. Imputed Negligence Smith v. Cox, 446 S.W.2d 52 (Tex. Civ. App. - -
Corpus Christi 1969, writ ref’d. n.r.e.).
Texas law does not impute negligence from the driver of the vehicle to one who is a mere guest or passenger.
Shoemaker,
Estate of Whistler v.
502 S.W.2d 237 (Tex. Civ. App. - -
El Paso 1973), aff’d, 513 S.W.2d 10, 15-16
22
The general rule in auto collision cases is that intra- family tort immunity no longer exists.
Therefore, a person can sue their family member to recover damages suffered because of the family member’s negligence in the
(Tex. 1974). However, when the owner is a passenger in his own vehicle, a presumption arises that the non-owner driver is the agent or operation of a motor vehicle.
1. Interspousal Immunity servant of the owner. See Straffus v. Barclay,
219 S.W.2d 65, 62 (Tex. 1949); Red Ball Motor
Freight, Inc. v. Arnspigerr, 449 S.W.2d 132, 137
(Tex. Civ. App. - - Dallas 1970, no writ). This presumption is based on the theory that the owner’s presence in the vehicle gives him the right to control the driver since the right of control is an incident of ownership. Therefore, an exception to the general rule is that the negligence of the non-owner driver may be imputed to the owner-passenger. The difference is due to the superiority or right of control held by the owner-passenger over the driver. However, this presumption of right of control is absent when the driver and passenger are co-owners because they are regarded as being in equal status; therefore, there is no superiority of possession giving rise to a right of control. Whistler, damages. Id.
502 S.W.2d at 239.
Inherent in the relationship of husband and wife is the implied authorization of each to act for the other in the common care and control of the children, and thus the negligence of one spouse maybe imputed to the other. See
Missouri-Kansas-Texas R. C. v. Hamilton, 314
S.W.2d 114 (Tex. Civ. App. - - Dallas 1958, writ ref’d n.r.e.). When the parents entrust a child to a third person, that person becomes their agent and the agent’s negligence will be imputed to the parents so as to deny or reduce any recovery by the parents for their own
It should be noted, however, that the relation of husband and wife does not make one spouse a general agent of the other, and thus there is no imputed negligence doctrine that bars recovery by one spouse for his or her injuries because of the negligence of the other spouse. Likewise, the husband and wife are liable personally only for their own individual torts.
P. Family Relationships and Immunity
The doctrine of interspousal immunity - - that is, that a person is immune from tort claims by their spouse - - was judicially created long ago to promote the social aim of preserving domestic tranquility. In following a trend recognized by many other states, the Texas
Supreme Court abolished interspousal immunity in Price v. Price, 732 S.W.2d 316 (Tex. 1987), stating that “it is difficult to imagine how denying a forum for the redress of any wrong could be said to encourage domestic tranquility.” Id.
at
318. Recently, the Texas Supreme Court declined to reinstate interspousal immunity.
See Schlueter v. Schlueter,
(Tex. 1998).
2. Parental Immunity
The right of an unemanicpated minor to bring a tort action against his or her parent is restricted somewhat by the doctrine of parental immunity. See Felderhoff v. Felderhoff, 473
S.W.2d 92 8 (Tex. 1971). The doctrine’s purpose is to avoid undue judicial interference with parental discretion in the “nurture, care, and discipline” of children. Id.
It was widely expected that the Texas
Supreme Court would abolish the parental immunity doctrine in Jilani v. Jilani, 767 S.W.2d
671 (Tex. 1988). Jilani was a suit on behalf of three minor children against their father to recover for injuries sustained by the children in an automobile collision. Instead of abrogating the immunity altogether, the court simply held that the doctrine is inapplicable to automobile tort actions. See Weiner v. Wasson , 900
S.W.2d 316, 319 (Tex. 1995)
In both Felderhoff and
975 S.W.2d 584
at 933.
Jilani, however, the court adhered to the view that a parent retains immunity for allegedly negligent acts involving
“a reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect to provisions for the care and

Pleadings, Charge and Judgment Issues in Automobile Collision Cases necessities of the child.” Felderhoff, 473
S.W.2d at 933; Jilani , 767 S.W.2d at 672.
Thus, it appears that parental immunity may be invoked only in negligent supervision cases - -
23
Q. Family Member Exclusion
Automobile liability insurance policies that is, in those cases where it is alleged that the parent was negligent in failing to adequately supervise or care for the child, and such negligence caused the child injury.
Shoemake v. Fogel, Ltd.,
See, e.g.
826 S.W.2d 933 (Tex.
1992) (child, while under mother’s supervision, nearly drowned in swimming pool). contain a family member exclusion, which states: “We do not provide liability coverage for you or any family member for bodily injury to you or any family member.” The policy defines
“family member” as a resident of the household and related “to you by blood, marriage, or adoption.”
This issue usually arises when a parent or other family member’s negligence while driving injures the claim . . .” Fed. R. Civ. P. 8a. The federal rules have as an appendix an illustration of a a passenger within the vehicle who is a member of the same household. As written, the exclusion bars the insured from seeking indemnity under the policy for the damages awarded to his or her family member. The
Supreme Court of Texas has invalidated the family-member exclusion, but only to the extent it removed the minimal $20,000 of mandatory liability coverage under former article 6701h
§§1(10). Liberty Mut. Fire Ins. Co. v. Sanford,
879 S.W.2d 9, 10 (Tex.1994);
Mut. Fire Ins. Co. v. Johnson, 879 S.W.2d 1, 6
(Tex.1993); State Farm Mut. Auto. Ins. Co. v.
Nguyen, 920 S.W.2d 409, 410-11
(Tex.App.--Houston [1st Dist.] 1996, no writ).
Under the Sanford
National County and Johnson precedents, the family-member exclusion limits an insurer’s duty to indemnify to the $20,000 pleading in automobile collision case that is proper for use in federal court.
B. Ad Damnum
A specific ad damnum, or statement of the dollar amount of damages claimed, must be pled in federal court. T EX .
R.
C IV .
P. 47, on the other hand, prohibits the allegation of a specific ad damnum in the original petition in cases in which the damages are unliquidated, as is the case in all automobile accident cases.
However, upon special exception, the plaintiff shall be required to specify the maximum amount of damages claimed. Id.
The plaintiff may voluntarily specify the ad damnum in an amended petition or supplemental petition, but technically, under Rule 47, a plaintiff is not minimum mandated by former article 6701h.
See Nguyen, 920 S.W.2d at 410-11. In other words, even if there is a $100,000 policy, the insurer must only pay up to the state mandated minimum limits, which at this time is $20,000 per person, and $40,000 per accident.
IV. PLEADINGS permitted in the original petition to specify the dollar amount claimed for unliquidated damages and is instead permitted only to state that “the damages sought are within the jurisdictional limits of the court.”
C. General vs. Special Damages
“When items of special damage are claimed, they shall be specifically stated.” T
EX .
R.
C IV .
P. 56; F ED .
R.
C IV .
P . 9(g). “Special damages” have been described as “those that proximately result from the defendant’s wrongful
A. General
In state court, a party’s pleadings are supposed to include “a short statement of the cause of action sufficient to give fair notice of the claim involved,” and “in all claims for unliquidated damages only the statement that the damages sought exceed the minimum jurisdictional limits of the court[.]” T
EX .
R.
C IV .
P.
47. A case addressing the Texas “notice pleading” rule is Davis v. Quality Pest Control,
641 S.W.2d 324 (Tex. App. - - Houston [14 th
Dist.] 1982, writ ref’d n.r.e.). The federal rules require simply a “short and plain statement of conduct but are of such an unusual nature that they would normally vary with the circumstances of the individual case in which they occur” and
“general damages” as “those that are so unusual an accompaniment of the kind of breach of wrongdoing alleged in the complaint that the mere allegation of the wrong gives sufficient notice.” Sherrod v. Bailey, 580
S.W.2d 24 (Tex. Civ. App. - - Houston [1 st
Dist.]
1979, writ ref’d n.r.e.). These definitions provide little guidance in determining exactly

Pleadings, Charge and Judgment Issues in Automobile Collision Cases what damages must be specifically stated and what is meant by “specifically stated.”
Historically, case law on the subject has dealt with whether the injury has been sufficiently described or whether a certain element of damages is such that it must be alleged specifically in order to get an issue submitted on it. The best practice is to specifically plead each category of damages that may apply - - e.g., bodily impairment, disfigurement (if applicable), loss of earnings (past), loss of
In automobile accident litigation, an important question is whether the plaintiff must specifically state the dollar amount being sued for on each element of damage. In Phillips v.
Vinson Supply Co., 581 S.W.2d 789 (Tex. Civ.
App. - - Houston [14 th
Dist.] 1979, no writ), the court pointed out that the rule requires that when one seeks to recover for example, for a loss of earning capacity, he must expressly state that fact in his petition. However, “the rule contains no language mandating allocation of a dollar value to elements of special damage; it requires only that the items of damage claimed be stated.” Phillips, 581 S.W.2d at
791. The court acknowledged that under Rule
47 the trial judge, upon a special exception, shall require the pleader to specify the maximum amount claimed, but stated that
“[t]here is no language authorizing the court to require itemization of specific elements.
Accordingly, it is error to sustain a special exception directed to such an end.” Id.
E. Specific Pleadings Control Over General
Allegations
It is not uncommon for a petition alleging several acts of negligence, specifically, to state that the defendant “committed negligent acts and omissions, including the following which was a proximate cause of the occurrence in question.” Defendants sometimes specially except to the language “including the following” by claiming that it fails to limit the negligent acts to those specified. This exception is unnecessary. In Monsanto v. Milam , 494 S.W.
2d 534 (Tex. 1973), the Texas Supreme Court held that specific allegations control over general allegations, and that the general plea of negligence or other culpable conduct does not permit the introduction of evidence in support of the non-specific plea of negligence in the absence of a trial amendment, in compliance earning capacity (future), physical pain (past and future), mental anguish (past and future), reasonable and necessary medical expenses
(past and future), personal property damage, loss of use of vehicle, other miscellaneous expenses. See e.g.
, Appendix A - - Sample
Petition, ¶ IV.
D. Specific Amounts for Each Element of
Damage not Required with T EX
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(10)
(12)
(13)
Cases
A.
B.
C.
D.
In failing to keep a proper lookout.
In driving at an excessive rate of
In failing to timely apply brakes.
In failing to turn to the left (or right) to avoid the collision.
In failing to yield the right-of-way.
In stopping or slowing too suddenly.
In entering the intersection against a red light.
In failing to stop before entering the closely.
In moving from one lane to another roadway.
In sideswiping, returning to the right side was not free of oncoming traffic.
In failing to signal intention to stop, to
Contributory negligence.
Sole proximate cause.
Unavoidable accident.
New and independent cause.
24
F. Standard Pleadings in Automobile
Collision Cases
The defendant was negligent in one or more of the following particulars:
(9)
(11)
.
R.
C IV .
speed.
P.
66 and 67. intersection.
In following the vehicle ahead too when it was unsafe to do so.
In failing to keep said vehicle completely within the right half of the lane too soon, returning to the right lane too late, or passing when the left decrease speed or to turn.
G. Standard Defensive Pleadings in Auto

Pleadings, Charge and Judgment Issues in Automobile Collision Cases
E.
Sudden emergency.
H. Special Exceptions
The rules governing special exceptions are
T
EX
.
R.
C
IV
.
P. 85, 90, 91, and 98.
(1) Rule 85, entitled “Original Answer:
Contents,” specifically provides that the original answer may include special exceptions.
(2) Rule 90, entitled “Waiver of Defects in Pleadings,” provides for waiver if defective pleadings not excepted to in
(4) Rule 98 speaks to supplemental answers: “The defendant’s supplemental answers may contain special exceptions, general denial, and the allegations of new matter not before alleged by him, in reply to that which has been alleged by the plaintiff.”
Examples of pleadings that are typically excepted to in personal injury cases include:
(1) Failure by a claimant to state the maximum amount of damage claimed.
(2) General allegations of negligence or contributory negligence.
(3) Sole proximate cause.
(4) New and independent cause.
(5) Unavoidable accident.
(6) Sudden emergency.
(7) Pre-existing or subsequent injuries, conditions and diseases.
Special exceptions can be an effective allegation of negligence is too vague, general, and indefinite and does not adequately apprise
(plaintiff/defendant)
Unavoidable Accident of
(defendant/plaintiff) is claiming. what the
Plaintiff specially excepts to Paragraph
____ of Defendants’ Original Answer wherein defendants generally plead unavoidable accident. Defendants’ plea of unavoidable accident fails to allege the specific, unforeseeable, non-human condition that gives rise to the claim of unavoidable accident and, as such, does not give fair notice to the plaintiff as required by the Rules of Civil Procedure.
25 writing and time limitations for excepting.
(3)
Rule 91, “Special Exceptions,” explains their use: “A special exception shall not only point out the particular pleading excepted to, but it shall also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to.”
Paragraph ___ of Defendant’s Original
Answer/Plaintiff’s Original Petition) wherein it is alleged generally that (plaintiff/defendant) was negligent and that such negligence was a proximate cause of the occurrence in question, without specifying the particular acts or omissions claimed to have been negligent. The pleading tool for both plaintiff and defendant.
Rust v. Rust, 117 S.W.2d 59 (Tex. Com. App.,
1938, opinion adopted), and Hartford Accident
& Indemnity Co. v. McArdlep, 369 S.W.2d 331
(Tex. 1963), provide excellent instruction with respect to these issues.
The following are examples of special exceptions, which can be modified to fit any type of pleading or defense:
General Negligence
(Plaintiff/Defendant) specially excepts to
I. Strategic and
Considerations in Pleadings
Evidentiary
The scope and precision of the pleadings often control what evidence may be admissible in support of the issues pled.
1. Negligent Entrustment
Evidence of previous convictions of numerous traffic violations is held to be admissible in a case based on the theory of negligent entrustment. This evidence is admissible to support the allegation that the

Pleadings, Charge and Judgment Issues in Automobile Collision Cases driver was reckless and incompetent. See
McIntire v. Sellers, 311 S.W.2d 886 (Tex. Civ. 2. Similar Accidents
App. - - Austin 1958, writ ref’d n.r.e.). See
Revisore v. West, 450 S.W.2d 361 (Tex. Civ.
App. - - Houston [14 th
Dist.] 1970). (Reliance is generally placed upon evidence of previous traffic violations . . . in negligent entrustment cases). However, post-collision conduct is not relevant, and is inadmissible. Post-collision conduct on traffic record must be segregated from the admissible portions. See Baures v.
26
The general rule is that evidence of similar accidents are not admissible on the issue of whether a party has been negligent, except where a proper predicate is laid showing that unrelated accidents occurred at the same place or under substantially similar circumstances.
Obviously, this vests a considerable amount of discretion in the trial court.
Anderson,
See Garza v.
417 S.W.2d 368 (Tex. Civ. App. - -
Cano, No. 13-92-386-CV, 1994 WL
115862(Tex. App. - - Corpus Christi April 7,
1994) (not designated for publication). As a caveat, a negligent entrustment allegation will also permit the defendant to offer evidence of a
“good” driving record.
Arguably, an allegation of negligence per se should open the door to evidence concerning
Corpus Christi 1967, no writ). See Hackaby v.
A.G. Perry Son, Inc., 20 S.W.3d 194 (Tex. App.
- - Texarkana 2000).
3. Negligence Per Se the statute or ordinance in question, and defendant’s knowledge or familiarity with the law. See, e.g., Freudiges v. Keller, publication).
4. Intoxication
104 S.W.3d
294 (Tex. App. -- Texarkana 2003); Ray v.
Robb, 2002 WL 31835725 (Tex. App. -- Dallas
December 19, 2002) (not designated for
A defendant’s driving while intoxicated is a proper element for the jury to consider in connection with the defendant’s other negligent acts in determining whether the defendant was grossly negligent and in determining the amount of punitive damages to award. Crider v.
Appelt, 696 S.W.2d 55 (Tex. App. - - Austin the practice of embellishing standard definitions and instructions.
Lemos v. Montes , 680 S.W.2d
798, 801 (Tex. 1984). The Texas Supreme
Court has likewise, disapproved of adding unnecessary instructions.
First Internat’l Bank of San Antonio v. Roper Corp ., 686 S.W.2d 602
(Tex. 1984).
The burden of proof should be placed by instruction rather than by inclusion in each question. When the burden is placed by instruction, it is not necessary that each question begin: “Do you find from a preponderance of the evidence . . .” PJC - - General Negligence and Motor Vehicles, p. xxv.
1985, no writ).
V. THE COURT’S CHARGE
A. General Considerations
T
EX
.
“The Court shall, whenever feasible, submit the cause upon broad-form questions.”
R.
C demands strict adherence to simplicity in jury charges.”
IV
.
P. 277. “A workable jury system
Lemos v. Montes
801 (Tex. 1984).
, 680 S.W.2d 798,
The Texas Supreme Court has disapproved
Two uses of instructions that are most likely to cause reversible error are:
Nudging instructions:
An instruction that urges or nudges the Jury toward a particular finding in favor of one party or the other has been condemned and is considered an impermissible comment that tilts or nudges the jury one way or the other. Lemos v. Montes, 680 S.W. 2d 798, 801 (Tex. 1984).
For example, in a medical malpractice case in which the defendant succeeded in getting the court to instruct that an unexpected result or bad result, etc., was not evidence of negligence on the part of the defendant physician, was held to be reversible error. Irick v. Andrew, 545

Pleadings, Charge and Judgment Issues in Automobile Collision Cases
S.W.2d 557, 558-59 (Tex. Civ. App. - - Houston
[14 th
Dist.] 1976, writ ref’d n.r.e.). In a product
27 when a question, definition, or instruction has been omitted. When in doubt, however, a party liability case in which the trial court instructed that “a manufacturer is not an insurer,” resulted in reversible error in Acord v. General Motors
Corp., 669 S.W.2d 111, 113 (Tex. 1984).
Instructions not raised by the evidence:
A second mistake that will most likely result in reversal is to instruct on a theory or defense which has not been raised by the evidence.
Roper,
See First International Bank v.
686 S.W.2d 602 (Tex. 1984), in which the court instructed the jury on the defense of sole proximate cause and the appellate court reversed on the basis of its not having been raised by the evidence. See also Lemos v.
Montes, 680 S.W.2d 798 (Tex. 1984), in which an unavoidable accident instruction was given when not raised by the evidence.
B. Preserving Error in the Charge
Generally, a party should object to a should always object, and if it has the burden of proof, it should also submit a request. See, generally, O’Connors Texas Rules,
Ch. 8.I, The
Charge (1998).
In practice, the line between when to object to material and when to request material in the charge has become somewhat blurred. The basic test now seems to be whether the party made the trial court “aware of the complaint, timely and plainly,” and obtained a ruling.
State Dept. of Highways & Pub. Transp. v.
Payne, 838 S.W.2d 235, 241 (Tex. 1992); see also Galveston County Fair v. Glover,
S.W.2d 585, 586 (Tex. 1996);
Neuse, Inc.
940
Alaniz v. Jones &
, 907 S.W.2d 450, 451 (Tex. 1995).
In automobile cases, Texas trial judges tend to follow the questions, definitions, and instructions contained in the Texas Pattern Jury
Charges . Important issues that automobile litigators should remain aware of in order to preserve error in the charge include: defectively worded charge, and submit a request for plaintiffs - - lodging proper objections to any defensive or inferential rebuttal instructions included in the charge. These include many of the defenses discussed in § III of this paper, such as new and independent cause, sole proximate cause, emergency, and unavoidable accident. for defendants - - submitting a written request setting forth any defensive or inferential rebuttal instructions that have been raised by the evidence, but that have not been included in the charge.
C. Sample General Negligence Question
The broad-form submission of negligence as recommended in PJC § 4.1, is:
QUESTION ____
Did the negligence, if any, of the persons named below proximately cause the occurrence in question?
Answer “Yes” or “no for each of the following:
A.
B.
VI.
T
EX
.
Don Davis _________________
Paul Payne _________________
JUDGMENT ISSUES
A. General Considerations
R.
C
IV
.
P. 300-316 address judgments.
The judgment announces the final resolution of the issues in the lawsuit and fixes the date from which appellate deadlines can be determined.
Judgments in auto cases are usually straightforward. The nuances of the law relating to judgments are beyond the scope of this article. However, the practitioner should remain aware of the issues relating to the calculating the amount of the judgment once a verdict has been returned. These issues include calculation of pre- and post-judgment, and costs of court.
B. Prejudgment Interest
“A judgment in a wrongful death, personal injury, or property damage case must include prejudgment interest.” T
EX
.
F
IN
.
C
ODE
.
A
NN
. §

Pleadings, Charge and Judgment Issues in Automobile Collision Cases
304.102 (Vernon 1998). The statutes that govern interest on judgments were amended and
28 percent but the 2003 amendments change this to five percent effective September 1, 2003. recodified in 1997. They are now found in the
T EXAS F INANCE C ODE § 304.001 et seq.
There is another amendment that takes effect
September 1, 2003. There are several cases from the 1980s and early 1990s that calculate prejudgment interest differently than the Finance
Code provides, so it is important to follow the statute and those cases interpreting it, rather than getting confused by some of the previous
Prejudgment interest may not be recovered on exemplary damages. T
C
ODE
EX .
C IV .
P RAC .
& R EM .
§41.007. Also, effective September 1,
2003, prejudgment interest may not be assessed on the 180 th
day after the date the defendant receives written notice of a claim or on the day the lawsuit is filed, or recovered on an award of future damages.
T EX .
F IN .
C ODE § 304.1045.
Generally, prejudgment interest begins accruing: case law in this area.
In personal injury cases, including automobile collision cases, prejudgment interest accrues as simple interest (not compounded annually) on all actual damages. See T EX .
F IN .
C
ODE
§ 304.103 (“The prejudgment interest rate is equal to the post-judgment interest rate applicable at the time of judgment and is computed as simple interest.”). This rate is ten
However, a written settlement offer will toll the accrual of prejudgment interest during the period that the offer may be accepted, even
T
EX
.
F whichever is earlier, and ending on the day preceding the date judgment is rendered.
IN
.
C
ODE
A
NN
. § 304.104 (Vernon 1998). with the dollar amount for prejudgment interest
(or at least the date upon which prejudgment interest began to accrue so that the computation if the judgment ends up being greater than the amount of the settlement offer. See § 304.106
(must be in writing). Note that prejudgment interest is only tolled during the period that the offer may be accepted.
This language has been interpreted to mean that once an offer has been rejected (or once a counteroffer has been made, since under basic contract principles, a counteroffer acts as a rejection of the original offer), prejudgment interest once again begins to accrue. See Harris v. Mickel, 15 F.3d 428 (5 th
Cir. 1994) (under Texas prejudgment interest statute, defendant was entitled to interest credit from date he first offered to settle to date his settlement offer was refused). Because prejudgment interest can sometimes grow to enormous amounts, any written settlement offers that are not accepted should be rejected promptly, and in writing. Although the statute does not speak to the issue of whether the rejection must be in writing, logic and proof suggest it.
The judgment should be prepared to include the rate of prejudgment interest, along of prejudgment interest will be apparent from the judgment itself). This saves time and avoids dispute when it comes time to collect the judgment. If relying on the “180 th defendant first received written notice of the claim. Preferably, this is accomplished by attaching a copy of the notice letter with the return receipt green card. The purpose of doing this is to ensure that there will be evidence in the record supporting the award of prejudgment interest.
C. Post-Judgment Interest
“A judgment of a court of this state must state the interest rate applicable to that judgment.” T
EX
.
F
IN
.
C
ODE
A
NN
. § 304.001
(Vernon 1998). The statutory scheme often refers to the “judgment interest rate” or “interest on the judgment.” These terms refer to post-judgment interest.
day after the date the defendant receives written notice” provision for calculating prejudgment interest, the motion to enter judgment should include as an exhibit evidence establishing when the

Pleadings, Charge and Judgment Issues in Automobile Collision Cases
Effective September 1, 2003, the judgment interest rate is tied to the prime rate as published
29 most of the theories of recovery and defenses available in auto collision cases are well-settled. by the Federal Reserve Bank of New York, except that the judgment rate has a floor of five percent (used to be ten percent) and a ceiling of fifteen percent (used to be twenty percent). §
304.003(c). In other words, if the prime rate is less than five percent, then the judgment rate is five percent; conversely, if the prime rate exceeds fifteen percent, the judgment rate will be fifteen percent. Keep in mind that, for
However, some of these well-settled legal doctrines continue to be misused or misunder-stood, such as the unavoidable accident defense for example. Hopefully, this article will assist the trial lawyer to identify the significant issues and understand some of the commonly applied legal doctrines in automobile collision cases.
(The author would like to thank James L.
Branton for his generous permission in allowing the use of his publication Branton & Lovett,
Texas Lawyers Series, Volume 2 - Automobiles as a source material in preparing this article.) personal injury cases, the rate of prejudgment interest is the same as that for post-judgment interest. That is why for the past several years both the pre- and post-judgment interest rates have been ten percent for personal injury cases.
The only difference is that post-judgment interest is compounded annually (§ 304.006), whereas prejudgment interest is not compounded at all, but instead is computed as simple interest (§ 304.103). Of course, now the rates will be five percent for as long as the prime rate remains below five percent.
D. Costs of Court
Tex. R. Civ. P. 131 provides that the prevailing party in a lawsuit shall recover his court costs from the opposing party. There is an exception for “good cause,” however, which provides: “The court may, for good cause, to be stated on the record, adjudge the costs other than as provided by law or these rules.” T
EX .
R.
C
IV
.
P. 141. Examples of taxable court costs include: filing fees, costs of service of process, the jury fee, witness subpoena fees (including costs of service), originals of depositions
(including depositions on written records, ad litem fees, and mediation fees (if taxed as costs in the order referring the case to mediation).
Videotaped depositions and copies, as opposed to originals, of depositions are not considered taxable court costs; neither are fees charged by expert witnesses.
VII. CONCLUSION
Although the law is constantly evolving,