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Hudson v. City of Houston1/6/2005
In this appeal we determine two principal issues: (1) whether the trial court erred in reducing the jury's damage award to a deceased child's mother and estate by the percentage of fault apportioned to the child's father; and (2) whether the trial court erred in allowing evidence of the father's alleged contributory negligence. We hold that the trial court erred in reducing the damages awarded to the mother and to the child's estate. Therefore, we reverse that portion of the trial court's judgment and remand this cause for further proceedings in accordance with this court's opinion. We affirm the remainder of the judgment.
I. Factual and Procedural Background
This suit stems from an accident in which a two-year-old child, Taylor Hudson, was struck and killed by a City of Houston ("City") sanitation truck driven by Gilda Green, a City employee. James McPeters, the child's father, was caring for him at the time of the accident. Appellants, McPeters, the Estate of Taylor Hudson (the "Estate"), and Shawn Hudson, the child's mother, filed suit against Green and the City (the "first action"). A default judgment was entered against Green for $3,500,000 in March 2001. The City answered in the first action and filed a counterclaim against McPeters. The City also requested a jury trial in its answer. Because of the City's request, after the default judgment was entered against Green, the parties agreed that the City was entitled to a jury trial on damages and that the damages assessed against Green would not be imputed to the City. To that end, three months after the default judgment was entered, appellants nonsuited the City. Following the non-suit, the City's counterclaim against McPeters was dismissed for want of prosecution. The default judgment became final on August 18, 2001.
On August 1, 2001, appellants refiled suit against the City based on respondeat superior and asserted several negligence causes of action (the "second action"). Shawn Hudson filed wrongful death and survival actions, and McPeters filed suit as a bystander. The City answered and counterclaimed against McPeters seeking contribution and indemnity. Prior to trial, appellants filed a motion for partial summary judgment on the City's liability. On September 3, 2002, one day before trial was to begin in the second action, the trial court granted appellants' partial summary judgment motion without specifying grounds. Later that day, the City filed an amended counterclaim against McPeters, adding negligence and negligence per se causes of action, in addition to its request for contribution and indemnity.
The following day during a pretrial conference, the parties and the trial court discussed at length the procedural posture of the case and the issues to be tried. Although the pretrial discussion reflects some confusion, the trial court concluded that liability issues regarding Green and the City had been resolved and that only the damages issue would be tried in the second action. It was also acknowledged that, because the City's derivative liability had been established through the court's grant of the partial summary judgment, Green's negligence would be imputed to the City, although the damages would not. The trial court also concluded the issue of comparative responsibility would be submitted to the jury as an element of damages, noting the jury would be asked to determine McPeters's and Green's percentage of responsibility. Appellants agreed with the court's conclusions; therefore, the only question submitted to the jury other than the damages question was: "What percentage of the negligence that caused the injury in question do you find to be attributable to each of those listed below?" Green a
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