In Blevins v. Pepper-Lawson Construction, the plaintiff appealed after a jury awarded him $170,850 for injuries suffered when he hit a construction vehicle driven by an employee of a masonry company.
The case arose one evening when the plaintiff was driving near a high school under renovation. A subcontractor of Pepper-Lawson Construction was doing some masonry. The plaintiff tried to pass a car but instead hit the mason’s construction vehicle. He was hurt and sued Pepper-Lawson, the mason, and the driver of the construction vehicle.
At trial, he argued that the construction vehicle should not be driven on a public road without a road kit (headlights and tail lights), and there was a failure to warn. A witness testified at trial that she was driving in the same area, which was well lit. A motorcycle sped around her in the right lane, followed by the plaintiff’s truck, which was also speeding. She believed they were racing and stopped her car because she saw that the plaintiff was driving as if he didn’t see the construction vehicle and was going to hit it.
The truck hit the construction vehicle, and the witness didn’t think the driver of the construction vehicle was at all at fault. The plaintiff testified he didn’t see the vehicle before hitting it. Instead, he passed the witness and looked to see if she was texting because she was driving so slowly. While looking, he turned on his left turn signal and looked at his side mirror, and he hit the construction vehicle.
The driver of the construction vehicle was planning to turn left when he was hit by the plaintiff’s truck. He testified that his vehicle had a strobe light and a reflective orange triangle to make it visible.
After the accident, the plaintiff apologized to the construction vehicle driver and said he was sorry. The witness was a registered nurse, who took a look at the plaintiff’s injuries while they were waiting for the police. She was worried he was drunk and told the officers so. The driver of the construction vehicle was concerned about the same thing because the plaintiff tried to leave with his truck, even though the truck was not able to be driven.
An officer didn’t notice the plaintiff was impaired and didn’t test the plaintiff for intoxication. However, he agreed that the plaintiff should have been able to see the truck. The EMT didn’t make notes regarding the intoxication of the plaintiff. At the emergency room, he was told his leg was shattered, and he would need multiple surgeries.
The plaintiff wouldn’t give blood and urine samples at the emergency room without a court order. He later testified that an investigating officer told him not to submit to testing without a judicial order. An ER record included a notation for positive for alcohol. Against medical advice, the plaintiff left the ER, even though he needed to be immediately admitted for surgery. After he came back to the hospital and underwent surgery, he continued to do things that could impede his recovery, such as disconnecting from his IV to go smoke.
At the trial, the jury found that the defendants’ negligence was a legal cause of the accident. However, they apportioned 49% of the liability to the plaintiff, 35% to the mason, 15% to the general contractor, and 1% to the construction vehicle driver. They awarded the plaintiff $185,000 in noneconomic damages and $150,000 in economic damages. The plaintiff appealed, arguing that the trial court should not have admitted evidence of his drunkenness and should have allowed evidence of a subsequent remedial measure, the fact that the driver of the construction vehicle didn’t have a Texas driver’s license, and the lease terms for the construction vehicle.
The appellate court explained that at trial, the plaintiff hadn’t objected to the questions asked by the defendants related to his intoxication. The plaintiff argued that he’d made a motion for no evidence summary judgment on the defense of contributory negligence. This motion was denied. The appellate court explained this was not a ruling on admissibility. It overruled the issue.
The plaintiff also argued that the general contractor changed its policy and required the mason to drive a car with flashers after the accident. The court explained that evidence of a subsequent remedial measure isn’t admissible to establish negligence, although it can be used to establish ownership or the feasibility of taking precautionary measures or to impeach a witness. In this case, it found that the plaintiff was wrong because the defendants hadn’t taken the position that the general contractor didn’t have control over the mason or that it didn’t lease the construction vehicle. It overruled this issue.
It also found that the trial court hadn’t abused its discretion in excluding the construction vehicle lease because the mason’s breach of duty in connection with the vehicle lease wouldn’t give rise to liability to the plaintiff, who was not a party to the lease. It also overruled the issue of the construction vehicle driver’s lack of license, since there was no evidence or allegation to show the accident was caused by the construction vehicle driver driving the vehicle in an unsafe way.
For these and other reasons, the court affirmed the lower court’s judgment.
If you are hurt in an auto accident, the experienced San Antonio attorneys at Carabin Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.
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