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Oney v. Crist

Court of Appeals of Texas, Twelfth District, Tyler

March 15, 2017


         Appeal from the 124th District Court of Gregg County, Texas (Tr.Ct. No. 2013-1615-B)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


          Greg Neeley, Justice

         Jeremy 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.


         The 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.

         Jarron 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.

         The 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 followed.

         Marshall's Negligence

         In 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.

         Standard of Review and Applicable Law

         When 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 contrary. Id.

          To 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.


         The 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.

         Trooper 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.

         The 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.

         Ronald 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 Oney's fault.

         As sole 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.

          Negligent Entrustment

         In 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.

         Applicable Law

         To 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. 2010).

         Incompetence 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 perception. Id.


         Regarding 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.

         Oney 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.

         Regarding 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.

         Oney 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.

         Regarding 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."

          Savage 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 ...

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