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AAA Cooper Transportation v. Davis

Court of Appeals of Texas, Fifth District, Dallas

August 20, 2019

AAA COOPER TRANSPORTATION AND XTRA LEASE, LLC, Appellants
v.
OLYNTHUS M. DAVIS AND PROPERTY & CASUALTY INSURANCE COMPANY OFHARTFORD, Appellees

          On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-10773

          Before Justices Schenck, Osborne, and Reichek

          MEMORANDUM OPINION

          AMANDA L. REICHEK, JUSTICE

         AAA Cooper Transportation and XTRA Lease, LLC appeal the trial court's judgment awarding Olynthus M. Davis damages for injuries he suffered while performing his job as a warehouseman. Bringing five issues, appellants generally contend (1) the trial court erred in submitting this case to the jury using a general negligence question, (2) the trial court abused its discretion in not excluding the testimony of Davis's experts, and (3) the evidence is insufficient to support the jury's answers to the charge questions regarding liability and future medical expenses. We affirm the trial court's judgment.

         Factual Background

         Davis was a certified forklift driver employed as a warehouseman for Ozburn Hessey Logistics (OHL). On May 25, 2015, Davis was assigned to load pallets into a trailer that had been leased by AAA Cooper from XTRA. The trailer was equipped with an E-track system, which included a metal rail running horizontally down the length of the trailer wall. The rail had slots that provided tie-down points to strap cargo securely in the trailer. The rail was attached to the wall with rivets.

         Before beginning the loading process, Davis inspected the trailer. Davis stated he was primarily looking for holes in the trailer's wall, ceilings, and floor. Davis did not inspect the E-track system and said he had never been trained to inspect the track or the rivets that affixed it to the wall. After performing the inspection, Davis signed an inspection report stating there was no damage to the sidewalls or floors.

         Davis then began loading pallets into the trailer. After loading four or five pallets, Davis began loading a large pallet that was almost the size of the forklift. Because he could not see over the cargo, Davis shifted the load to the side so he could see forward while driving. Davis stated he looked down the side of the wall to make sure he was not touching it. As he was moving forward, Davis felt the forklift begin to strain and slow down. When it came to a stop, Davis threw his arm forward to prevent hitting his face and his arm struck the knob on the forklift steering wheel. Davis stated he immediately felt an aching and numbness sensation in his arm. When one of his fellow employees asked what had happened, he told her he had hurt his arm "really bad." She told him to back the forklift out. After moving the forklift back, his coworker exclaimed that Davis's leg had been torn open. The E-track rail had detached from the wall and impaled his leg. Davis looked down at his leg, saw "blood everywhere," and passed out.

          Davis was taken by ambulance to the hospital where he stayed for approximately a week. Davis ultimately had multiple surgeries on both his leg and arm. Almost three years after the accident, he stated he was still in pain every day and could not fully bend his leg. He also suffered nerve damage to his arm that caused his fingers to curl into a claw position.

         Immediately following the accident, AAA Cooper submitted an incident report. An initial report stated Davis had hit the wall of the trailer. The final version of the report stated Davis "hit the E-track on the side wall of the trailer and it broke off the wall stabbing [Davis] in the leg." Pictures taken of the inside of the trailer show a length of the E-track pulled off the wall and a bent portion of the rail lying on the floor.

         Davis brought this suit against appellants alleging they had provided an unsafe trailer and were negligent in their failure to properly inspect, repair, and maintain the trailer. Prior to trial, Davis designated Peter Sullivan as an expert witness to testify regarding the condition of the trailer at the time of the accident and appellants' failure to properly inspect and maintain the E-track system. Appellants moved to exclude Sullivan's testimony arguing his opinions were not based on a reliable foundation and he was not qualified to opine on the specified matters. Appellants also moved to exclude the testimony of Dr. Jason Marchetti, Davis's expert witness on the issue of future medical expenses, by similarly challenging his qualifications and the basis of his testimony. Both motions were denied by the trial court.

         At trial, Sullivan testified he inspected the trailer at issue in March 2017. Although the inspection occurred almost two years after the accident, Sullivan stated the trailer had travelled only 8, 962 miles in that time, which amounted to only 5% of its service mileage. According to Sullivan, the portion of the E-track rail that had detached from the wall during Davis's accident was still missing when he inspected the trailer. His inspection showed that 38% of the rivets used to hold the remaining rail in place were either broken, loose, or missing and he testified that even one missing rivet would compromise the system. He stated the rail was supposed to be held tightly in place by the rivets, but he could pull a portion of the rail away from the trailer wall with his fingers. He further stated the E-track rail only had to protrude 1/16 to 1/4 of an inch from the wall for a forklift or cargo to catch on it. Additionally, the weight of the forklift would cause the trailer to flex, and any portion of the E-track rail that was not properly secured could pop out.

         In Sullivan's opinion, Davis's accident was caused by either the forklift or the cargo Davis was moving hitting the protruding end of the E-track rail. As the forklift moved forward, the rail pulled away from the trailer wall and pierced Davis's thigh. Sullivan further opined that the accident would not have occurred if the trailer had been properly inspected, maintained, and repaired. Sullivan acknowledged that Davis had performed an inspection of the trailer prior to the accident. But he stated Davis's inspection was conducted under a different standard of care than required of appellants and Davis would not be expected to examine the E-track system or the rivets holding it in place.

         Appellants also hired an expert who examined the trailer two months after Sullivan. Although appellants' expert did not testify at trial, he created an expert report that was admitted into evidence. The report concluded that Davis's injuries were caused by the forklift impacting the wall of the trailer with sufficient force to pull the E-track rail off the wall. The report further concluded that, other than the missing portion of the E-track, the trailer showed no other damage and was in "excellent condition." Sullivan testified he did not believe the accident was caused by the E-track rail being forced off the wall following a collision with the forklift because such an occurrence was "nearly impossible" unless the E-track was improperly secured, and there was no evidence to indicate a collision of that force had occurred.

         In addition to Sullivan, Davis presented the testimony of several AAA Cooper and XTRA employees responsible for the inspection and maintenance of the trailer. Vincent Daniels with AAA Cooper testified he inspected the trailer before dropping it off at the warehouse to be loaded. Daniels testified he saw no damage to the trailer or anything coming off the walls. He conceded, however, that he did not specifically inspect the rivets holding the E-track in place.

         Steven Porter, the director of equipment for XTRA, testified regarding the trailer's inspections and repair history. A company inspection report showed the trailer at issue was inspected in May approximately two weeks before the accident, and again three months later, in August 2015. During these inspections, XTRA's procedures required the employees to check the E-track system for damage. The report showed that no damage to the E-track was reported either before or after the accident despite the fact that a portion of the E-track rail was missing during the August inspection. Porter stated that a missing portion of the E-track would be considered damage that should be repaired. Porter further stated that missing or damaged rivets and the ability to pull the E-track away from the wall would also be considered damage requiring repair. The repair history for the trailer showed that the only maintenance performed on the unit before and after the accident was that it was swept out. Porter confirmed that no rivets on the E-track system were repaired or replaced.

         Jacob Bass, director of sales and operations with AAA Cooper, stated that a missing portion of the E-track system is damage that should have been reported and replaced. Although Bass conceded that the E-track is not supposed to be loose, he stated he would not consider "some protrusion" of the E-track rail to be damage. Bass agreed that the trailer was not in "excellent condition" as reported by appellants' expert.

         In support of Davis's claim for future medical expenses, Dr. Marchetti testified that he had examined Davis and reviewed his medical records to develop a "life care plan." The plan addressed Davis's future medical needs with respect to the injuries he suffered to his arm and his leg. According to Marchetti, all of the problems Davis was experiencing with his arm and leg resulted from the trauma he sustained in the accident. Marchetti opined the present value of Davis's future medical expense needs was $223, 275.69.

         One of Davis's treating physicians, Dr. David Zehr, diagnosed Davis's arm and hand issues as resulting from a pinched ulnar nerve. He also originally diagnosed Davis as having a neuroma resulting from trauma to his arm. Dr. Zehr later changed his diagnosis, stating Davis had a neurofibroma in his arm and he did not find ...


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