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Omega Contracting9/29/2005
ury.
We need not conduct a harm analysis with regard to the negligence per se instructions because we have already determined that the trial court's failure to submit the negligence of settling person Michael Paige was error that requires reversal and remand for a new trial. See TEX. R. APP. P. 44.1(a), 47.1. We sustain Omega and Cardenas's second issue and third issue in part.
2. New and Independent Cause
In their first issue, Omega and Cardenas complain that the trial court erred in refusing to instruct the jury on new and independent cause with regard to Torres's negligence question. The new and independent cause alleged by Omega and Cardenas was Torres's own faulty evasive action.
When a party complains about the court's refusal to submit a requested instruction or definition, the question on review is whether the request was "reasonably necessary to enable the jury to render a proper verdict." Vinson & Elkins v. Moran, 946 S.W.2d 381, 405 (Tex. App.--Houston [14th Dist.] 1997, writ dism'd by agr.). A trial judge must submit a requested jury question if it is supported by some evidence. See Kloos, 75 S.W.3d at 162. If the evidence in a negligence case raises the issue of new and independent cause, it is reversible error not to include the term in the definition of proximate cause and to define it. J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 665 (Tex. App.--Fort Worth 1999, pet. denied).
New and independent cause is the act or omission of a separate and independent agency that destroys the causal connection between the negligent act or omission of the defendant and the injury . See Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60, 61 (1935); J. Wigglesworth, 985 S.W.2d at 665; COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES--General Negligence & Intentional Personal Torts PJC 3.1 (2003). The doctrine is not an affirmative defense; rather, it is one element to be considered by a fact finder in determining whether proximate cause exists. Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 383 (1952); Benitz v. Gould Group, 27 S.W.3d 109, 116 (Tex. App.--San Antonio 2000, no pet.); see also Dillard v. Texas Elec. Coop., 157 S.W.3d 429, 432 (Tex. 2005) (noting that new and independent cause is one of several issues in the nature of inferential rebuttals that should be submitted by instruction); PJC 3.1 cmt.
New and independent cause contemplates that an independent force, rather than the alleged negligent acts of the parties, was responsible for the plaintiff's injuries. Eoff v. Hal and Charlie Peterson Found.,811 S.W.2d 187, 192-93 (Tex. App.--San Antonio 1991, no writ.); Galvan v. Fedder, 678 S.W.2d 596, 598 (Tex. App.--Houston [14th Dist.] 1984, no writ). The factors we consider to determine whether an act is a new and independent cause highlight this principle. Those factors include the following:
(d) whether the operation of the intervening force is due to a third person's act or to his failure to act;
(e) whether the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.
Kloos, 75 S.W.3d at 162 (emphases added) (citing Humble Oil & Refining Co. v. Whitten, 427 S.W.2d 313, 315 (Tex. 1968)); Knoll v. Neblett, 966 S.W.2d 622, 634 (Tex. App.--Houston [14th Dist.] 1998, pet. denied). " nder Texas law, a new and independent cause that extinguishes the liability of a party cannot arise out of the affirmative act of n
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