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Choctaw Nation of Oklahoma v. Sewell

Court of Appeals of Texas, Fifth District, Dallas

May 29, 2018


          On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-04381

          Before Justices Lang-Miers, Myers, and Boatright



         A bus owned by Cardinal Coach Line, Inc. and chartered by appellant, Choctaw Nation of Oklahoma, crashed while en route to Choctaw's casino in Durant, Oklahoma. The families of two bus passengers who died in the accident asserted wrongful death and survival claims against Choctaw. The primary issue in this appeal is whether the evidence supports the jury's findings that Choctaw was vicariously liable for the negligence of (i) the individual who organized the trip, and (ii) Cardinal and its contract bus driver. We affirm.


         Choctaw provides motor coach transportation to its Durant casino for groups of thirty or more customers who are members of its "Player's Club" and who commit to stay at the casino for at least five hours on a given trip. To utilize Choctaw's bus service, a "group tour coordinator" must make a reservation through Choctaw's Tours and Travel Department. Group tour coordinators are not employees of Choctaw, but they must sign a "Group Tour Acceptance Agreement" that sets forth Choctaw's rules for the buses that it provides. The rules bar unsafe or inappropriate passenger conduct, including a prohibition against distracting the bus driver while he is driving.

         Choctaw is federally licensed as a motor carrier. It owns and operates a fleet of buses to transport its customers to and from its casino. It also charters authorized carriers to handle trips for which its own buses are not available. The casino trip at issue was such an occasion. Sue Taylor, a group tour coordinator known to her friends as "Casino Sue, " made reservations with Choctaw for a trip to occur on April 11, 2013. To accommodate Taylor's reservation, Choctaw contracted with Cardinal, an independent charter bus company that itself was a federally licensed motor carrier and that owned its own fleet of buses. Cardinal charged Choctaw $750 for the round trip and assigned one of its contract bus drivers, Loyd Rieve, to serve as the driver. Cardinal paid Rieve $125 to make the trip. Rieve had driven on prior casino trips organized by Taylor, and Taylor requested that he be assigned to drive on the trip in question.

         On the morning of April 11, the Cardinal-owned bus picked up Taylor's group, the majority of whom were senior citizens, and embarked for the casino. The accident occurred soon after the bus had merged onto the President George Bush Turnpike from State Highway 161. Rieve and Taylor disagreed over whether to continue on the turnpike, which is a paid tollway. Rieve crashed the bus while discussing this issue with Taylor. The bus drifted onto the shoulder, struck a crash attenuator, and then veered across the road and struck a concrete barrier, after which it rolled onto its side. The Department of Public Safety subsequently concluded that the accident was caused by Rieve's failure to drive in a single lane of traffic due to driver inattention or a medical issue.

         Passengers Alice Stanley and Paula Hahn died in the accident. Thereafter, appellee Linda Sewell, individually and on behalf of Ms. Stanley's estate, and appellees Ronald and William Stanley, who are Ms. Stanley's surviving sons, sued Cardinal and Rieve based on claims including negligence and vicarious liability. The Stanley appellees later amended their petition to add Choctaw as a defendant and to assert similar claims against it. In addition, appellee Melissa Engman, individually and on behalf of Ms. Hahn's estate, and appellees Kenneth Hindreth, Donna Garner, and Kathy Bolton, who are Hahn's surviving children, intervened in the lawsuit and asserted similar claims against Choctaw. The appellees settled with Cardinal and Rieve, and their claims against Choctaw were tried in April 2016.

         At the conclusion of the trial, the jury found that the negligence of Choctaw, Rieve, and Cardinal proximately caused the accident. The jury apportioned Choctaw's responsibility at twenty-five percent, Rieve's at fifty-eight percent, and Cardinal's at seventeen percent. The jury also found against Choctaw on several common-law vicarious liability theories, as will be described in more detail below. The district court rendered judgment against Choctaw in an amount in excess of $9.3 million, which represented 100 percent of the damages found by the jury, less certain settlement credits. Choctaw filed a motion for new trial, which was overruled by operation of law. This appeal followed.


         Choctaw raises fifteen issues. Ten of these relate to whether Choctaw owed the appellees a duty, which is predicated on whether it can be held vicariously liable for the negligence of Taylor, Cardinal, and Rieve.

         I. Federal Preemption

         In its first through third issues, Choctaw contends that Cardinal was the sole federal motor carrier with respect to the trip in question. See Gonzalez v. Ramirez, 463 S.W.3d 499, 504 (Tex. 2015) (per curiam) (concluding that a defendant's status as a motor carrier depends on the specific transaction at issue). It argues that Cardinal, as the sole carrier, owed a non-delegable duty to the bus passengers and was exclusively liable for Rieve's negligence. See Morris v JTM Materials, Inc., 78 S.W.3d 28, 40 (Tex. App.-Fort Worth 2002, no pet.) (concluding that a licensed motor carrier may not release itself from liability by delegating the rights conferred by its license to another party). Choctaw also urges that federal law preempts the appellees' state law claims against it.

         We need not decide whether Cardinal was the sole federal carrier here.[1] Even assuming this to be the case, federal preemption would not bar the appellees' state-law claims against Choctaw. While preemption may preclude a motor carrier from avoiding liability by classifying its drivers as independent contractors, Morris, 78 S.W.3d at 37-39, it does not preclude an injured plaintiff from imposing liability on other parties based upon state-law principles of vicarious liability. For example, an interstate motor carrier's liability for equipment and drivers covered by leasing arrangements is not governed by common-law doctrines. Id. at 39. Instead, the carrier (also referred to as the statutory employer) is vicariously liable as a matter of law under federal law for the negligence of its statutory employee drivers. Id. However, the carrier's liability under federal law does not preempt the imposition of state common-law liability against other parties. See Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 884 (Tex. App.-Dallas 2006, no pet.) (noting that federal case law has not interpreted 49 C.F.R. § 376.12(c) to preempt common-law liability). In sum, the federal statutory liability of a carrier (in this case, Cardinal) is in addition to, not in lieu of, the common-law liability of other parties to the incident (in this case, Choctaw). We overrule Choctaw's first through third issues.

         II. State-Law Vicarious Liability

         Choctaw's fourth through tenth issues contest the jury's findings that it was liable for the negligence of Taylor, Rieve, and Cardinal under state-law control theories. The jury found that "during the occurrence in question":

(i). Choctaw "exercise[d] or retain[ed] some control over the manner by which the passengers were transported by bus to the casino" (Question One);
(ii). Cardinal, Rieve, and Taylor were "acting in the furtherance of a mission for the benefit of Choctaw and subject to control by Choctaw as to the details of the mission" (Question Two);
(iii). Rieve was a "borrowed employee" of Choctaw (Question Three); and
(iv). An "ostensible agency" relationship existed between Choctaw and Taylor "with respect to the transportation of the passengers to the casino." (Question Four).

         Choctaw contends that the evidence does not support the jury's findings, alleging that (i) the operation of the bus was under Cardinal's exclusive control, (ii) Rieve was not a "borrowed employee, " (iii) Taylor was neither Choctaw's agent nor its ostensible agent, and (iv) Taylor did not interfere with Rieve's driving of the bus.

         A. Sufficiency of Evidence to Support Findings Regarding Taylor

         The appellees' case against Choctaw focused in large part on Taylor's role in causing the accident. We thus begin by examining Choctaw's contention that it is not liable for Taylor's conduct.

         1. Existence of a Duty

         The jury found Choctaw responsible for twenty-five percent of the appellees' loss. Choctaw interprets this finding as factually predicated on Taylor's distraction of Rieve as he drove the bus. Its eighth issue contends that it was Rieve who chose to converse with Taylor as he drove the bus and that Taylor's conduct did not give rise to a duty on her part to the other passengers. Choctaw relies on out-of-state case law that, in the absence of a special relationship causing the negligence of the driver to be imputed to the passenger, the passenger owes no duty to a third party to exercise any control or to give any warning to the driver. E.g., Hurt v. Freeland, 589 N.W.2d 551, 553, 555-59 (N.D. 1999); Welc v. Porter, 675 A.2d 334, 338 (Pa. Super. Ct. 1996); Brown v. Jones, 503 N.W.2d 735, 736 (Mich. Ct. App. 1993); Lego v. Schmidt, 805 P.2d 1119, 1122-23 (Colo. Ct. App. 1990). However, the cases cited by Choctaw also acknowledge a passenger's duty not to substantially interfere with the driver's operation of the vehicle. See Hurt, 589 N.W.2d at 558 ("Liability may attach where the passenger has substantially interfered with the operation of the vehicle, because a passenger has a duty not to interfere with the operation of the vehicle."); Lego, 805 P.2d at 1122 (noting out-of-state case law permitting recovery against passenger who, by hitting driver on head, caused him to turn around and lose control of vehicle (citing Hetterle v. Chido, 400 N.W.2d 324 (Mich. Ct. App. 1986)))); Resseguie v. Reynolds, 11 Pa. D. & C.4th 558, 562 (Pa. Ct. of Common Pleas 1991), aff'd, 613 A.2d 34 (Pa. Super. Ct. 1992) (noting that no Pennsylvania court has recognized a passenger duty but that "one such duty probably includes the duty not to actively interfere with the driver, by blinding his vision, or affecting the steering, or throwing matter into his lap or upon his feet").

         In Texas, the existence of a duty is a question of law for the court to decide from the facts surrounding the circumstances in question. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). A passenger's duty is measured by the same standard of care as that of the driver, though the conduct required of a passenger to satisfy her duty may be different from that required of the driver. Adams v. Morris, 584 S.W.2d 712, 716 (Tex. Civ. App.-Tyler 1979, no writ). A passenger may rely on the driver to keep watch unless she knows from past experience, or from the manner in which the vehicle is being driven on the particular trip, that the driver is likely ...

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