Preview
CAUSE NO. 22-DCV-291322
MARTIN GOMEZ, § IN THE DISTRICT COURT OF
Plaintiff §
§
VS. § FORT BEND COUNTY, TEXAS
§
MELLON REAL ESTATE, INC., §
Defendant § 240TH JUDICIAL DISTRICT
DEFENDANT’S MOTION FOR LEAVE TO DESIGNATE JOHNNY GARCIA
AS A RESPONSIBLE THIRD PARTY
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant, MELLON REAL ESTATE, INC., and Pursuant to Section
33.004 of the Texas Civil Practice and Remedies Code, files this Motion for Leave to Designate
Johnny Garcia as a Responsible Third Party and respectfully show the court as follows:
Background
This is a premises liability claim brought by Martin Gomez (“Plaintiff”) who claims he
sustained personal injury on September 9, 2020 when he was struck by a vehicle prior to 5:52 am
as he was lying in the roadway of Rocky Falls Parkway. The vehicle that ran over him (twice) was
driven by Johnny Garcia, a tenant of Rocky Falls Mobile Home Park and an acquaintance of
Plaintiff. Plaintiff claims he was Garcia’s guest. Plaintiff claims he was returning from checking
Garcia’s mail on an unlit street (Rocky Falls Parkway) when he laid down in the street and passed
out. Garcia apparently thereafter ran over Plaintiff allegedly due to the lack of lighting in the
mobile home community. As discussed more fully below, Defendant submits to the court that
Garcia’s negligence in running over Plaintiff was the proximate cause of Plaintiff’s injuries and
damages and that he is, therefore, a responsible third party.
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II.
Argument and Authorities
A. Legal analysis.
Chapter 33 allows the jury to divide responsibility for a tort among multiple parties in “any
cause of action based on tort in which a defendant, settling person, or responsible third party is
found responsible for a percentage of the harm for which relief is sought. . .”.
A responsible third party is:
any person who is alleged to have caused or contributed to causing in any way the
harm for which recovery of damages is sought, whether by negligent act or omission,
by any defective or unreasonably dangerous product, by other conduct or activity that
violates an applicable legal standard, or by any combination of these.”
Tex. Civ. Prac. & Rem. Code Ann. § 33.011. “A defendant may seek to designate a person as a
responsible third party. . . ” Tex. Civ. Prac. & Rem. Code Ann. § 33.004(a). A court shall grant
leave to designate a responsible third party unless another party files an objection to the motion
for leave on or before the 15th day after the motion is served. Tex. Civ. Prac. & Rem. Code Ann.
§ 33.004(f). Even if the plaintiff timely objects to the designation, the court shall nevertheless grant
the defendant’s motion for leave “unless the objecting party establishes. . . the defendant did not
plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading
requirement of the Texas Rules of Civil Procedure.” Tex. Civ. Prac. & Rem. Code Ann. § 33.004(g).
B. Factual analysis and conclusion.
The accident occurred some time prior to 5:52 am on September 9, 2020. It appears that
prior to that time, Plaintiff left Garcia’s mobile home at #333 Rocky Falls Parkway where he was
allegedly a guest and later passed out in the roadway of Rocky Falls Parkway. Garcia prior to the
accident was driving southbound on Rocky Falls Parkway in his 2010 Honda SUV when he ran
over Plaintiff twice before coming to a stop to the south of Plaintiff on Rocky Falls Parkway.
Garcia was driving with his lights on but claims he “didn’t’ see” Gomez lying in the roadway.
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It is axiomatic that Garcia while travelling in the dark was required under Tex.Transp.Code
§547.302(a)(1) to engage his headlights while driving at night. It is equally obvious that Garcia
had a duty to exercise due care while driving and to be on the lookout for pedestrians who might
be on, or in this case, lying down, in the roadway. However, Garcia failed to exercise due care by:
a. Failing to engage his lights as required under the Texas Transportation Code.
Tex.Transp.Code §547.302(a)(1);
Failing to operate his vehicle at a speed that was reasonable and prudent under the
existing conditions. Tex.Transp. Code §545.351;
c. Failing to exercise due care to avoid colliding with a pedestrian in the roadway.
Tex.Transp.Code §552.008;
Failing to exercise proper precaution when observing any obviously confused or
incapacitated person on a roadway. Tex.Transp.Code §552.008;
e. Failing to control his speed;
f. Failing to maintain control over his vehicle;
g. Failing to maintain a proper lookout;
Failing to timely apply his brakes;
i. Failing to take evasive action so as to avoid running over Plaintiff;
j. Such other acts of negligence as will be proven at trial.
Garcia had duty to exercise reasonable prudence and is not excused from the negligence
merely because it was nighttime and/or that Plaintiff was lying in the roadway. See Kenyon v.
Elephant Insurance Co., LLC, 628 S.W.3d 868, 909-910 (Tex.App.—San Antonio 2020, no pet.).
Garcia breached his duty and his running over Plaintiff in the street was the proximate cause of
the damages sought by Plaintiff. Garcia meets the definition of a “responsible third party.”
Tex.Civ.Prac. & Rem. Code §33.011. Defendant respectfully requests that this Court designate
Johnny Garcia as a responsible third party pursuant to Tex.Civ.Prac. & Rem. Code §33.004.
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III.
Prayer
WHEREFORE, PREMISES CONSIDERED, Defendant, Mellon Real Estate, Inc. prays
that this Court GRANT their Motion for Leave to Designate Johnny Garcia as a responsible third
party, and for such other and further relief to which they may be justly entitled.
Respectfully submitted,
LARK ILL PLC
By: /s/ H. Scott Alexander
H. Scott Alexander
State Bar No. 00793247
2615 Calder Avenue, Suite 240
Beaumont, Texas 77702
Telephone: 409.351.3800
Facsimile: 409.351.3883
hsalexander@clarkhill.com
ATTORNEYS FOR DEFENDANT,
MELLON REAL ESTATE, INC.
CERTIFICATE OF SERVICE
I hereby certify that on this 16TH day of April, 2022, a true and correct copy of the foregoing
document was electronically field by E-File Texas with a request for service on counsel for all
parties.
/s/ H. Scott Alexander
H. Scott Alexander
CERTIFICATE OF CONFERENCE
I hereby certify pursuant to Fort Bend County Local Rule 3.3.9 that I have conferred with
Plaintiff’s counsel, Joshua Estes, by email on April 13, 2022, and he is not opposed to this motion.
/s/ H. Scott Alexander
H. Scott Alexander
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Preview
CAUSE NO. 22-DCV-291322 MARTIN GOMEZ, § IN THE DISTRICT COURT OF Plaintiff § § VS. § FORT BEND COUNTY, TEXAS § MELLON REAL ESTATE, INC., § Defendant § 240TH JUDICIAL DISTRICT DEFENDANT’S MOTION FOR LEAVE TO DESIGNATE JOHNNY GARCIA AS A RESPONSIBLE THIRD PARTY TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant, MELLON REAL ESTATE, INC., and Pursuant to Section 33.004 of the Texas Civil Practice and Remedies Code, files this Motion for Leave to Designate Johnny Garcia as a Responsible Third Party and respectfully show the court as follows: Background This is a premises liability claim brought by Martin Gomez (“Plaintiff”) who claims he sustained personal injury on September 9, 2020 when he was struck by a vehicle prior to 5:52 am as he was lying in the roadway of Rocky Falls Parkway. The vehicle that ran over him (twice) was driven by Johnny Garcia, a tenant of Rocky Falls Mobile Home Park and an acquaintance of Plaintiff. Plaintiff claims he was Garcia’s guest. Plaintiff claims he was returning from checking Garcia’s mail on an unlit street (Rocky Falls Parkway) when he laid down in the street and passed out. Garcia apparently thereafter ran over Plaintiff allegedly due to the lack of lighting in the mobile home community. As discussed more fully below, Defendant submits to the court that Garcia’s negligence in running over Plaintiff was the proximate cause of Plaintiff’s injuries and damages and that he is, therefore, a responsible third party. Page 1 of 4 CLARKHILL\K6439\429174\266796869.v1-4/14/22 II. Argument and Authorities A. Legal analysis. Chapter 33 allows the jury to divide responsibility for a tort among multiple parties in “any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought. . .”. A responsible third party is: any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these.” Tex. Civ. Prac. & Rem. Code Ann. § 33.011. “A defendant may seek to designate a person as a responsible third party. . . ” Tex. Civ. Prac. & Rem. Code Ann. § 33.004(a). A court shall grant leave to designate a responsible third party unless another party files an objection to the motion for leave on or before the 15th day after the motion is served. Tex. Civ. Prac. & Rem. Code Ann. § 33.004(f). Even if the plaintiff timely objects to the designation, the court shall nevertheless grant the defendant’s motion for leave “unless the objecting party establishes. . . the defendant did not plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirement of the Texas Rules of Civil Procedure.” Tex. Civ. Prac. & Rem. Code Ann. § 33.004(g). B. Factual analysis and conclusion. The accident occurred some time prior to 5:52 am on September 9, 2020. It appears that prior to that time, Plaintiff left Garcia’s mobile home at #333 Rocky Falls Parkway where he was allegedly a guest and later passed out in the roadway of Rocky Falls Parkway. Garcia prior to the accident was driving southbound on Rocky Falls Parkway in his 2010 Honda SUV when he ran over Plaintiff twice before coming to a stop to the south of Plaintiff on Rocky Falls Parkway. Garcia was driving with his lights on but claims he “didn’t’ see” Gomez lying in the roadway. Page 2 of 4 CLARKHILL\K6439\429174\266796869.v1-4/14/22 It is axiomatic that Garcia while travelling in the dark was required under Tex.Transp.Code §547.302(a)(1) to engage his headlights while driving at night. It is equally obvious that Garcia had a duty to exercise due care while driving and to be on the lookout for pedestrians who might be on, or in this case, lying down, in the roadway. However, Garcia failed to exercise due care by: a. Failing to engage his lights as required under the Texas Transportation Code. Tex.Transp.Code §547.302(a)(1); Failing to operate his vehicle at a speed that was reasonable and prudent under the existing conditions. Tex.Transp. Code §545.351; c. Failing to exercise due care to avoid colliding with a pedestrian in the roadway. Tex.Transp.Code §552.008; Failing to exercise proper precaution when observing any obviously confused or incapacitated person on a roadway. Tex.Transp.Code §552.008; e. Failing to control his speed; f. Failing to maintain control over his vehicle; g. Failing to maintain a proper lookout; Failing to timely apply his brakes; i. Failing to take evasive action so as to avoid running over Plaintiff; j. Such other acts of negligence as will be proven at trial. Garcia had duty to exercise reasonable prudence and is not excused from the negligence merely because it was nighttime and/or that Plaintiff was lying in the roadway. See Kenyon v. Elephant Insurance Co., LLC, 628 S.W.3d 868, 909-910 (Tex.App.—San Antonio 2020, no pet.). Garcia breached his duty and his running over Plaintiff in the street was the proximate cause of the damages sought by Plaintiff. Garcia meets the definition of a “responsible third party.” Tex.Civ.Prac. & Rem. Code §33.011. Defendant respectfully requests that this Court designate Johnny Garcia as a responsible third party pursuant to Tex.Civ.Prac. & Rem. Code §33.004. Page 3 of 4 CLARKHILL\K6439\429174\266796869.v1-4/14/22 III. Prayer WHEREFORE, PREMISES CONSIDERED, Defendant, Mellon Real Estate, Inc. prays that this Court GRANT their Motion for Leave to Designate Johnny Garcia as a responsible third party, and for such other and further relief to which they may be justly entitled. Respectfully submitted, LARK ILL PLC By: /s/ H. Scott Alexander H. Scott Alexander State Bar No. 00793247 2615 Calder Avenue, Suite 240 Beaumont, Texas 77702 Telephone: 409.351.3800 Facsimile: 409.351.3883 hsalexander@clarkhill.com ATTORNEYS FOR DEFENDANT, MELLON REAL ESTATE, INC. CERTIFICATE OF SERVICE I hereby certify that on this 16TH day of April, 2022, a true and correct copy of the foregoing document was electronically field by E-File Texas with a request for service on counsel for all parties. /s/ H. Scott Alexander H. Scott Alexander CERTIFICATE OF CONFERENCE I hereby certify pursuant to Fort Bend County Local Rule 3.3.9 that I have conferred with Plaintiff’s counsel, Joshua Estes, by email on April 13, 2022, and he is not opposed to this motion. /s/ H. Scott Alexander H. Scott Alexander Page 4 of 4 CLARKHILL\K6439\429174\266796869.v1-4/14/22