 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Perez v. Lopez3/7/2002
the evidence, I do not use the discredited "zero damages" rule. Nevertheless, I am mindful that courts of appeals possess equal power to review the sufficiency of evidence to support both a jury's affirmative and negative answers, including the jury's failure to award damages. Pilkington v. Kornell, 822 S.W.2d 223, 225 (Tex. App.--Dallas 1991). We are not entitled to reverse merely because we conclude more evidence supports an affirmative finding. Id. at 226. Rather, only where the great weight of the evidence, preponderates against the jury's verdict, may we reverse and remand for new trial. Id. This standard is variously formulated as where the verdict shocks the conscience, is clearly unjust, or clearly indicates bias. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). I conclude that the evidence here meets the Pool standard, and indeed I discern no evidence supporting the jury's decision to award no damages on the elements of mental anguish and loss of companionship in this case. Using the appropriate standard for analyzing the issue, I would sustain Perez's Issues No. One and Two.
Negligence Per Se
Similarly, in its discussion of Issue No. Four, the majority not only fails to analyze the particular facts of this case, but does not even fully recite the law. Although I agree that, under the deferential standard of review we must apply, the trial court did not abuse its discretion in refusing the negligence per se instruction requested here, this set of facts is one of first impression and I believe deserves a more thorough analysis. My short attempt at one follows.
If the law on negligence per se were as the majority states, then no judge would ever abuse his or her discretion in failing to so charge the jury, simply because in a civil case "a court is not required to adopt the penal statute's standard." Although true, this statement is incomplete and misleading. In a case ignored by the majority, the Texas Supreme Court has set out a detailed set of criteria for determining when a penal statute should set the standard for tort liability. Perry v. S.N., 973 S.W.2d 301, 304-07 (Tex. 1998). Perry begins with the familiar threshold inquiries. Does the plaintiff (or here, the plaintiff's decedent) belong to the class that the statute was intended to protect? Is the plaintiff's injury of a type that the statute was designed to prevent? Id. at 305. Without doubt, Albert Perez, Jr., a minor, was within the class of persons intended to be protected by Tex. Pen. Code Ann. ยง 46.06 (Vernon 1994). Suicide, along with accidents, irresponsible gunplay, and unsupervised access to firearms all of which can and do lead to terrible tragedy, are the type of injuries this penal provision are designed to prevent. I would hold that both prongs of the threshold inquiry are met here. The Supreme Court instructs us, however, that this does not end, our review only begins here. Id.
When determining whether it is appropriate to impose tort liability for violations of a penal statute, the Court has pointed to a number of non-exclusive factors which should guide the court in determining the question. Id. These factors include the following.
First, whether absent a change in the common law, the negligence per se action would derive its duty element solely from the criminal statute. Id. at 306. That is not the situation here, as discussed below in the section on foreseeability. I believe this prong of the test favors civil liability for violating this public safety statute.
Second, whether the statute clearly defines the prohibited or required conduct. Id. at 307. The statute at issue here does not clearly prohibit the Lopez's conduct, although certainly the spi
Page 1 2 3 4 5 6 7 8 9 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|