Sharp Dissent in

Benavente v. Granger (Tex.App.- Houston [1st Dist.] Oct. 23, 2009)(Radack)
(
automobile accident, rear-ender, negligence, appeal with partial reporter's record)
AFFIRM TC JUDGMENT: Opinion by
Chief Justice Radack  
Before Chief Justice Radack, Justices Taft and Sharp
01-08-00227-CV Maricella Benavente v. Daniel Granger and Beverly Granger
Appeal from 333rd District Court of Harris County
Trial Court Judge:
Hon. Joseph Halbach
Dissenting Opinion by Justice Jim Sharp in Benavente v. Granger [pdf]

Under these facts and the reporter’s record provided, I would hold that Benavente
provided overwhelming evidence of specific acts of negligence on Granger’s part: not
paying attention to the traffic in front of him, following too closely for the conditions,
and driving too rapidly for the conditions.  But for these specific acts of negligence,
Granger would not have rear-ended Benavente’s car.

Considering all of the evidence, the jury’s verdict was so contrary to the great weight
and preponderance of the evidence as to be clearly wrong and unjust.  

I would sustain appellant’s issue and remand for a new trial.

DISSENTING OPINION

I believe that Granger’s own testimony establishes that he violated his duty of reasonable care and engaged
in specific acts of negligence that caused the collision.     According to his testimony, as Granger approached
the intersection in his Camaro Z28 with his son en route to work, he started to reduce his speed some 1,000
yards or more from the intersection.  There were two or three cars in the lane in which he was traveling  that
were already stopped at the light.  The light changed, and he continued forward, with the same cars ahead of
him in the intersection.  When he was about to cross the intersection, he was distracted by a car approaching
from the right and “glanced to the right” “for a brief second” to look at it.  He had a brief conversation with his
son about the car[1] before turning back to look ahead again.  At that point, despite the fact that he later
claimed at trial that he had not been “tailgating,” he saw the cars ahead of him stopped on the other side of
the intersection, “just saw brake lights,” “applied (his) brakes . . . very hard,” but “there just wasn’t enough
room,” and he hit Benavente’s car.  Although he had previously testified that it had not been raining that day,
when describing the actual collision, Granger asserted that “the intersection was slippery from oil or whatnot .
. . and [he] just could not stop completely.”

Despite Granger’s contention that he had been driving only “I would guess between five and ten miles per
hour, possibly even less,” and had rear-ended Benavente in what he described as a “very light” impact, he
damaged her vehicle in both the rear and front, damaged the front lights, and caused the hood to be
“crumpled and bent.” Despite Granger’s insistence that he had looked to the right only “for a brief second,”
Granger himself established that he had looked away long enough both (1) to engage in a conversation with
his son about the approaching car and (2) to identify the car specifically by both color (yellow) and make
(Lamborghini).

How is one who admits to being distracted from moving, stop-and-go traffic long enough to identify the color
and make of an especially rare automobile not negligent when, as “[he] was just entering the intersection,” he
“looked forward and saw that the cars had stopped on the other side,” and yet still slammed into the rear of
the car in front of him with sufficient force to cause that vehicle to hit the car in front of it?

We may all be able to tell a Pontiac from a Volvo, but when it comes to rare cars, the identification is not only
not instantaneous, but requires some careful review to distinguish one from another.  Fiat?  Ferrari?  
Maserati?  Alfa Romeo? Lancia?  Bizzarrini?  DeTomaso?  Ghia?  Intermeccanica?  Iso?  Ital Design?
Pininfarina?  Vignale?  Zagato?  Mercedes?  Bentley?

Under these facts and the reporter’s record provided, I would hold that Benavente provided overwhelming
evidence of specific acts of negligence on Granger’s part: not paying attention to the traffic in front of him,
following too closely for the conditions, and driving too rapidly for the conditions.  But for these specific acts
of negligence, Granger would not have rear-ended Benavente’s car.

Considering all of the evidence, the jury’s verdict was so contrary to the great weight and preponderance of
the evidence as to be clearly wrong and unjust.  I would sustain appellant’s issue and remand for a new trial.

Jim Sharp

Justice

Panel consists of Chief Justice Radack, and Justices Sharp and Taft.

Justice Sharp, dissenting.

[1]              Granger was curiously inconsistent about how this conversation started.

Although we only have his cross-examination testimony from trial, as the parties provided a limited record on appeal, it is
apparent from that testimony that Granger changed his position repeatedly on this point.  The record at trial suggests that
Granger first stated, in his deposition before trial, that his son had been the one to point out the car to him.  But at trial, he took
the position that it was he who had pointed out the Lamborghini to his son, even testifying that he had told his son, “Look at
that.  I mean check that out.”  Twice he denied that it was his son who had drawn his attention to the car, the second time in
response to a question from the judge.  But after being confronted with an audiotape of his deposition, Granger changed his
position again, testifying that it had been his son who had pointed out the yellow Lamborghini.