Court of Appeals of Texas, Twelfth District, Tyler
from the 124th District Court of Gregg County, Texas (Tr.Ct.
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Oney and Horizon Cable Service, Inc. appeal from a judgment
against them and in favor of William "Chip" Crist
and Heather Crist. Oney and Horizon present ten issues
challenging the trial court's judgment. We affirm in part
and reverse and render in part.
Crists were injured when their vehicle was struck by a
Horizon "spooling" truck driven by Oney. According
to Oney, the truck weighs approximately 32, 000 to 52, 000
pounds and is "governed, " i.e., it can travel no
more than seventy-five miles per hour. On the day of the
collision, Oney was traveling in the right lane with the
cruise control set on seventy miles per hour. The road was
wet from rain. An Escalade, driven by Chip and occupied by
Heather, Taylor White, and White's wife, traveled in
front of Oney.
Marshall, who was driving a pickup truck in front of the
Crists, lost control of his vehicle and landed in a ditch.
Oney and Chip both applied their brakes. Oney decreased his
speed to approximately forty-five to fifty miles per hour and
locked the truck's axles. Knowing that a collision was
inevitable, he slowed down as much as possible, veered left
to avoid hitting the Escalade straight on, and clipped the
Escalade's left corner. The collision thrust the Escalade
forward near a bridge, but the Escalade did not leave the
road or collide with other traffic. Oney testified that his
truck entered the ditch and struck Marshall's vehicle.
Crists sued both Oney and Horizon for injuries sustained as a
result of the accident. The jury found that (1) the
negligence of Oney and Horizon, but not Marshall, proximately
caused the accident; (2) Chip was entitled to $103, 898.35
for past medical care, $334, 146 for future medical care,
$100, 000 for past physical pain and mental anguish, $400,
000 for future physical pain and mental anguish, $150, 000
for past physical impairment, and $600, 000 for future
physical impairment; (3) Heather was entitled to $105, 185.84
for past medical care, $300, 000 for future medical care,
$100, 000 for past physical pain and mental anguish, $400,
000 for future physical pain and mental anguish, $250, 000
for past physical impairment, and $600, 000 for future
physical impairment; and (4) Oney and Horizon were grossly
negligent. The jury found that Chip and Heather were each
entitled to $300, 000 in exemplary damages. This appeal
issues one and two, Horizon challenges the legal and factual
sufficiency of the evidence to support the jury's finding
that Marshall was not negligent. According to Horizon,
Marshall's negligence led to his loss of control and was
the primary, proximate cause of the accident.
of Review and Applicable Law
reviewing the legal sufficiency of the evidence, we consider
the evidence in the light most favorable to the verdict.
City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.
2005). We credit favorable evidence if a reasonable juror
could, and disregard contrary evidence unless a reasonable
juror could not. Id. at 807. "The final test
for legal sufficiency must always be whether the evidence at
trial would enable reasonable and fair-minded people to reach
the verdict under review." Id. at 827. When
reviewing the factual sufficiency of the evidence, we
consider and weigh all of the evidence. Id. at 826.
We will set aside the verdict only if it is so against the
great weight and preponderance of the evidence that it is
clearly wrong and unjust. Id. Jurors are the sole
judges of the witnesses' credibility and the weight to
give their testimony. Id. at 819. They are entitled
to believe one witness and disbelieve another. Id.
We are not permitted to impose our own opinions to the
establish negligence, a plaintiff must prove (1) a legal duty
owed by the defendant to the plaintiff, (2) a breach of that
duty, and (3) damages proximately caused by the breach.
Lee Lewis Constr. Inc. v. Harrison, 70 S.W.3d 778,
782 (Tex. 2001). Proximate cause is comprised of
cause-in-fact and foreseeability. Id. at 784.
"The test for cause-in-fact is whether the act or
omission was a substantial factor in causing the injury
'without which the harm would not have
occurred.'" Id. (quoting Doe v. Boys
Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477
(Tex.1995)). Foreseeability means that a person of ordinary
intelligence should have anticipated the dangers that his
negligence created for others. Id. at 785. The
"injury need only be of a general character that the
actor might reasonably anticipate." Id.
"More than one act may be the proximate cause of the
same injury." Id. at 784.
jury found that Oney and Horizon were negligent, but that
Marshall was not. The record demonstrates that Marshall lost
control of his vehicle. White testified that Marshall
"gunned it" just before losing control. According
to Marshall, his vehicle began "fishtailing."
Having heard a "pop, " he believed that one of his
tires had blown out. However, Texas State Trooper Robbie
Dillard testified that his report contained no documentation
of a blow-out and he found no evidence of a blow-out at the
scene. Oney testified that, after the accident, Marshall
apologized and told him that he had "spun out" and
installed a "souped-up" motor in his truck. Oney
guessed that the truck "got away from [Marshall]"
as a result of "over-acceleration." White testified
that Marshall's truck had a V8 engine, which White
testified is a large engine. He testified that he recorded a
conversation immediately after the accident, but he could not
locate the recording and did not recall any specific
statements made on the recording. He believed that admissions
of fault by Oney and Marshall would have been on the
recording. Chip testified that White gave him a copy of the
recording, but the recording would not play.
Dillard testified that Marshall lost control because he was
driving at an unsafe speed during wet road conditions, which
started the chain of events that led to the collision. He
acknowledged that there is no reason to believe that Oney
would have struck the Crists had Marshall not lost control of
his vehicle. Marshall acknowledged that his loss of control
possibly set in motion the events of that day.
jury also heard Trooper Dillard testify that, regardless of
Marshall's actions, there would not have been a collision
between the Horizon truck and the Escalade had Oney
controlled his speed. Dillard cited Oney for failure to
control his speed because Oney could not control his vehicle
and avoid striking the Escalade. He explained that failure to
control speed occurs when a vehicle's speed is
unreasonable under the circumstances or conditions, and the
driver's lack of control results in a collision. He
agreed that Oney needed to drive at a distance sufficient to
avoid striking another vehicle and should not have been
driving too fast, too close, on a wet road, and with his
cruise control set on seventy miles per hour. Dillard
testified that, in his experience, a driver does not set the
cruise control in wet road conditions. Additionally, the jury
heard evidence that, although the Crists were driving
directly behind Marshall, they were able to avoid either
leaving the roadway or striking another vehicle when Marshall
lost control. White believed that if Oney had driven as
reasonably as Chip, the accident would not have happened.
Dean Savage, II, Horizon's assistant general manager and
former safety director, acknowledged that a driver must
decrease his speed when driving in the rain, and keep a
sufficient distance between himself and the vehicle in front
of him so that he can avoid a collision. Oney admitted that a
reasonable, prudent driver has a duty to drive a vehicle in
such a way as to be able to stop before colliding with
another vehicle. He also agreed that it was not a good idea
to set the cruise control while driving in wet conditions.
Shane Risley, Horizon's general manager and
vice-president, agreed that the accident appeared to be
judge of the weight and credibility of the evidence, the jury
could reasonably conclude that, despite Marshall's
actions, Oney should have anticipated the dangers of driving
too fast and too close to the Crists in wet road conditions.
See Harrison, 70 S.W.3d at 785. Accordingly, the
jury could also reasonably conclude that Oney's conduct
was a substantial factor in causing the Crists' injuries
and that, absent Oney's failure to control his speed,
harm would not have occurred to the Crists. See
Wilson, 168 S.W.3d at 819; see also Harrison,
70 S.W.3d at 784. Furthermore, the jury could reasonably
conclude that Marshall's conduct did not cause the
Crists' injuries. Viewing the evidence in the light most
favorable to the verdict, we conclude that the evidence is
legally sufficient to support the jury's conclusion that
Oney, not Marshall, was negligent. See Wilson, 168
S.W.3d at 824. The jury's finding is not so against the
great weight and preponderance of the evidence as to be
clearly wrong and unjust. See id. at 826. We
overrule issues one and two.
issue three, Horizon challenges the legal sufficiency of the
evidence to support negligent entrustment. Specifically,
Horizon maintains that the evidence fails to establish that
(1) Oney was an incompetent or reckless driver, and (2)
Horizon knew or should have known that Oney was an
incompetent or reckless driver.
establish negligent entrustment, a plaintiff must show (1)
entrustment of a vehicle by the owner; (2) to an unlicensed,
incompetent, or reckless driver; (3) that the owner knew or
should have known to be unlicensed, incompetent, or reckless;
(4) that the driver was negligent on the occasion in
question; and (5) that the driver's negligence
proximately caused the accident. Schneider v. Esperanza
Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987).
"For entrustment to be a proximate cause, the defendant
entrustor should be shown to be reasonably able to anticipate
that an injury would result as a natural and probable
consequence of the entrustment." Id. The
plaintiff must prove that the risk that caused the
entrustment to be negligent caused the accident at issue.
TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 240 (Tex.
or recklessness may be established by the employee's
driving record and habits, as well as his condition,
situation, or state at the time he is loaned the vehicle.
Revisore v. West, 450 S.W.2d 361, 364 (Tex. Civ.
App.-Houston [14th Dist.] 1970, no pet.). Entrustment may be
negligent when the employee is physically or mentally
incapacitated, intoxicated, or lacking in judgment or
Oney's driving history and habits, Oney testified that he
has a commercial driver's license, which has never been
revoked, and several years of experience driving various
trucks. He admitted being terminated by previous employers,
but only one involved a driving infraction. Specifically, he
was terminated after striking a fence post. Oney included his
employment history on his job application with Horizon.
Savage testified that Oney has a clean driving record and
there have been no complaints regarding his driving.
also admitted that his driver's license lists a
restriction that he is to drive while wearing corrective
lenses, but he gave conflicting statements as to whether he
wore those lenses on the day of the collision. He further
admitted having a previous "conviction" for
possession of an open container of alcohol while in an
eighteen-wheeler. But, he explained that he was never
arrested, cited, or appeared in court for the offense. The
offense occurred five or six years before Oney applied for
the job at Horizon and was listed on Oney's job
application. The record indicates that Horizon did not have
Oney drug tested until several hours after the collision,
even though testing was available. However, Trooper Dillard
testified that Oney did not appear to be intoxicated at the
scene of the collision. Savage testified that Oney's drug
tests have all been negative.
Oney's training and experience, the record indicates that
Oney had worked for Horizon approximately thirty four days
before the collision. According to Savage, Oney completed an
employment application while Horizon's CDL driver, Joseph
Modisette, was on another job. Horizon's yard manager,
Jody Nolen, who does not hold a CDL, administered Oney's
driving test. Savage explained that Nolen understood the
truck's logistics and merely gave Oney a small test
drive. The record indicates that Nolen was eventually
terminated for various reasons, including dishonesty.
However, Savage testified that Modisette handled Oney's
trial period. Risley testified that if he could go back in
time, he would not have allowed Oney to drive the truck.
testified that Horizon trained him to drive a small spooling
truck, which he drove for two to three weeks. He learned how
to operate the truck and received safety training. He had
been driving the large spooling truck for approximately one
week before the collision. In his deposition, Oney agreed
that the collision would not have occurred had he been
properly trained. But, at trial, he explained that his
training enabled him to minimize the damage because, without
any training, he probably would have struck the Escalade
straight on at seventy miles per hour. He believed that his
training prompted him to slow down and veer away from the
Escalade to reduce the damage.
Oney's condition, situation, or state, the record
indicates that Oney worked approximately fourteen hours on
the day of the collision. During his deposition, Oney
complained that the accident occurred, in part, because he
sometimes did not have a day off when business was heavy. He
stated he was probably fatigued because of the long hours he
worked in the previous days. According to Oney, he was
required to work even after informing Horizon that he felt
fatigued, and in violation of federal regulations. When asked
if he thought Oney was fatigued at the time of the accident,
White stated that the fact Oney struck the Escalade when he
had an opportunity to avoid the collision indicates that
"something was not right."
and Risley both acknowledged that fatigued drivers should not
be allowed on the roadway and that fatigue can affect a
driver's reaction time. However, Savage testified that
Oney never complained of being overworked or working in
violation of federal regulations. At trial, Oney denied
telling anyone to stop forcing him to drive more than
federally authorized. He testified that he was off work the
three days before the collision, and had additional days off
in the two weeks before the collision. He testified that he
was not fatigued at the time of the collision, and was in
compliance with federal regulations. Trooper Dillard
testified that Oney did ...