OPINION BACKGROUND This case involves a three-vehicle collision that occurred on Texas State Highway 17, about fifteen miles south of Pecos, Texas. In two issues, Appellant (Arcides), challenges the jury’s findings of his negligence. In Issue One, Arcides argues that because he owed no legal duty, the trial court abused its discretion in submitting a question in the charge relating to his proportionate responsibility. In Issue Two, Arcides maintains the jury’s findings of his negligence are legally and factually insufficient. We affirm. Factual Background In November of 2019, Appellee, Raul Rojas (Rojas), was hauling a water tank for his employer, Appellee, Deepwell Energy Services, LLC (Deepwell).[1] Rojas was driving southbound on Texas State Highway 17 (Highway 17). Highway 17 is a two-way, one-lane highway with a speed limit of 75 miles per hour. Driving several hundred feet ahead of Rojas was Carlos Zamarripa (Zamarripa), who was also traveling southbound on Highway 17.[2] Arcides was approaching in the northbound lane, driving on the other side of the road in the opposite direction from Rojas and Zamarripa. As the three vehicles traveled in their respective directions, a sandstorm emerged. There was no visibility, and winds of 60 to 70 miles per hour. All three drivers continued to drive, right into the sandstorm. Once inside the sandstorm, Rojas slowed down to 41 miles per hour in the southbound lane. Zamarripa slowed down and was traveling in the center of the southbound lane, at a speed of 1 to 2 miles per hour—”near stopped.” Due to the lack of visibility, Rojas did not see Zamarripa’s truck “near stopped” ahead of him. Rojas’s truck struck Zamarripa’s truck, then Zamarripa’s truck crossed into the opposite lane, colliding into Arcides’s truck. At the time of impact, Rojas was traveling 33 miles per hour, while Zamarripa was “near stopped” traveling at 1 mile per hour, and Arcides was traveling 3.6 miles per hour. However, at trial, Arcides testified he did not enter the sandstorm and instead, pulled over. According to Arcides, at the time of the collision, he was parked on the side of Highway 17 to avoid the oncoming storm. However, expert testimony revealed Arcides was not pulled over on the side of the road. Accident reconstruction and data extracted from Arcides’s truck further confirmed Arcides was not pulled over and had been driving on the highway at the time of impact. During the charge conference, counsel for Arcides objected to the submission of Arcides in Question One, which asked, “Did the negligence, if any, of those named below proximately cause the occurrence in question?” Counsel for Arcides also objected to the inclusion of Arcides in the percentage allocation of Arcides’s negligence in Question Two, arguing there was “no evidence that a breach approximately caused the occurrence in question.” The trial court overruled the objections and Questions One and Two were submitted to the jury. As to Question One, the jury answered in the affirmative for each of the three drivers, finding the negligence of each of the drivers had proximately caused the occurrence in question. As to Question Two, the jury found Rojas 50% negligent, Zamarripa 40% negligent, and Arcides 10% negligent. Based upon the jury’s verdict, the total awarded in favor of Arcides amounted to $2,250,000.00 in damages, but was ultimately reduced to $1,252,300.90 by the jury’s finding of proportional negligence. Procedural Background In January of 2020, Arcides filed suit against Rojas and Deepwell in the 143rd District Court of Reeves County. His pleadings included claims of negligence and damages for personal injuries resulting from the auto collision. A jury trial was held in October of 2021. After the jury rendered its verdict, Arcides contested the jury’s findings of his negligence and proportionate responsibility by filing a motion for judgment notwithstanding the verdict with alternative motion for new trial, which was denied by written order. This appeal followed. DISCUSSION In Issue One, Arcides maintains that because he did not owe a legal duty, the trial court erred in its inclusion of Arcides in the percentage allocation of proportionate responsibility in Question Two. In Issue Two, Arcides argues the jury’s findings as to his negligence and apportionment are legally and factually insufficient. Arcides requests that this Court reverse the trial court’s judgment, strike his percentage of fault, and reallocate his prior apportionment pro- rata between Rojas and Zamarripa, or alternatively, grant a new trial. We begin with Issue Two because we find it dispositive of Issue One. For the reasons that follow, we affirm. LEGAL AND FACTUAL SUFFICIENCY Standard of Review When a party attacks the legal sufficiency of an adverse finding on an issue in which it did not have the burden of proof, it must demonstrate on appeal that no evidence exists to support the adverse finding. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014). We consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). “Anything more than a scintilla of evidence is legally sufficient to support the fact finder’s finding.” Sanders Oil & Gas, Ltd. v. Big Lake Kay Constr., Inc., 554 S.W.3d 79, 93 (Tex. App.— El Paso 2018, no pet.). The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. E. Tex. Educ. Ins. Ass’n v. Ramirez, 631 S.W.3d 908, 918 (Tex. App.—El Paso 2021, pet. denied). In reviewing a factual sufficiency challenge, we must consider and weigh all of the evidence, and may set aside the verdict only if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Jackson v. Williams Bros. Constr. Co. Inc., 364 S.W.3d 317, 324 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). Under both a legal and factual sufficiency review, the jury, as fact finder, is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Ramirez, 631 S.W.3d at 918. Accordingly, we may not substitute our judgment for that of the fact finder. Id. Applicable Law A plaintiff asserting a negligence claim bears the burden of proving a legal duty, breach of that duty, and damages proximately caused by the breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). The two elements of proximate cause are cause in fact and foreseeability. Id. Under proportionate responsibility, the fact finder is entitled to proportion responsibility according to the relative fault of the actors, thus allowing a plaintiff to recover while reducing that recovery by the percentage for which the plaintiff was at fault. Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d 553, 559–60 (Tex. 2015). Section 33.003 of the Texas Civil Practice and Remedies Code provides: (a) The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person’s causing or contributing to cause 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: (1) each claimant; (2) each defendant; (3) each settling person; and (4) each responsible third party who has been designated under Section 33.004. (b) This section does not allow a submission to the jury of a question regarding conduct by any person without sufficient evidence to support the submission. TEX. CIV. PRAC. & REM. CODE ANN. § 33.003. So long as the plaintiff’s own responsibility does not exceed 50%, he is entitled to a recovery reduced by his responsibility percentage. Id. at § 33.001. The statute casts a wide net over conduct that may be considered in this determination, including negligent acts or omissions, and any other conduct or activity that violates an applicable legal standard. Romero, 456 S.W.3d at 560. In sum, a plaintiff’s contributory negligence should be considered in the apportionment of responsibility. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(a). Analysis The evidence is legally and factually sufficient to support the jury’s findings in Questions One and Two of the jury charge. Question One contemplated a negligence finding as to each of the three drivers. Question Two requested that the jury assess the drivers’ comparative responsibility. The following was submitted to the jury: QUESTION NO. 1 Did the negligence, if any, of those named below proximately cause the occurrence in question? Answer ‘Yes’ or ‘No’ for each of the following: a. Raul Angel Rojas __________ b. Carlos Zamarripa __________ c. Gilbert Arcides __________
