TCJL has added its voice to a growing list of amici asking the Texas Supreme Court to review a commercial trucking case in which a Harris County jury reached a nuclear verdict against the employer. TCJL joins sister organizations Texans for Lawsuit Reform, Texas Association of Defense Counsel, American Trucking Association, Texas Trucking Association, Texas Trucking Industry Defense Association, and U.S. Chamber of Commerce in submitting briefs to the Court.
The facts in Werner Enterprises, Inc. and Shiraz A. Ali v. Jennifer Blake, Individually and As Next Friend for Nathan Blake, and as Heir of the Estate of Zachery Blake, Deceased; and Eldridge Moak, in his Capacity as Guardian of the Estate of Brianna Blake (No. 23-0493) are unspeakably tragic. On a wintry night in December 2014, Plaintiff and her three children were driving eastbound on I-20 near Odessa when the driver of their vehicle lost control, crossed a 42-foot grassy median, and collided with an 18-wheeler traveling over 40 miles per hour. Plaintiff’s seven-year-old son died and his 12-year-old sister suffered a traumatic brain injury that left her a quadriplegic. Plaintiff’s third child, a fourteen-year-old boy, suffered serious internal injuries. Plaintiff incurred a mild traumatic brain injury and other injuries. Plaintiff sued the trucking company (Werner) and the driver of the 18-wheeler (Ali). After a trial, the jury awarded more than $100 million in damages. The trial court entered final judgment in July 2018. Defendants appealed.
In an en banc opinion, a split Houston [14th] Court of Appeals affirmed. The 89-page majority opinion authored by Justice Hassan, in which Justices Bourliot, Zimmerer, Spain, and Poissant joined, held that: (1) there was legally and factually sufficient evidence to show that the truck driver owed a duty to Plaintiffs; (2) there was legally and factually sufficient evidence to support a finding that the truck driver breached the duty; (3) there was legally and factually sufficient evidence to support a finding that the truck driver’s negligence (driving at an excessive speed in icy conditions) proximately caused Plaintiffs’ injuries; (4) the jury charge did not have a Casteel problem (submission of invalid theories of liability commingled with valid ones); (5) the jury charge asking the jury to assign responsibility to those “who caused or contributed to [Plaintiff’s] injuries” is supported by Chapter 33, which speaks to assignment of responsibility to “each person’s causing or contributing to cause in any way the harm for which discovery of damages is sought”; (6) the trial court did not abuse its discretion by refusing to submit a sudden emergency instruction to the jury (the trial court did instruct the jury as to “unavoidable accident”), and, in any event, any error was harmless; (7) application of the “respondeat superior admission” rule was inappropriate in this case, even if the 5th Court of Appeals recognized such a rule, because Plaintiffs asserted a gross negligence theory against Werner; (8) the evidence was legally and factually sufficient to support the jury’s finding that Werner owed Plaintiffs a duty, breached the duty, and the breach proximately caused the accident (there’s a special duty issue here that will surely get SCOTX’s attention); (9) there is legally and factually sufficient evidence to support the jury’s finding that Werner breached its duty to train and supervise and that Werner breached that duty, causing the accident; (10) the trial court did not err by submitting three comparative causation questions as opposed to a single question; (11) the trial court did not err by allowing evidence of other collisions, near collisions, or related similar events (in this case, similar accidents involving Werner drivers in icy road conditions and prior accidents on I-20 on the same night as that involving Plaintiffs; (12) the trial court did not err in admitting evidence of Plaintiff’s expert on pertinent federal regulations, legal effect of the CDL manual, and standard of care owed by motor carriers; (13) the trial court did not err in admitting Plaintiffs’ expert testimony as to future medical expenses or Plaintiffs’ expert accident reconstruction testimony about what may have happened if the truck driver had slowed to 15 mph; and (14) the jury’s $43.1 million award for future medical care expenses was supported by sufficient evidence.
Chief Justice Christopher, joined by Justices Wise, Jewell, and Wilson, dissented. She found the majority at fault for failing to address Werner’s properly preserved objection to a jury charge imposing “a general negligence duty on Werner, acting through employees other than [the driver]. The question did not define what that duty was—what objective conduct such unidentified employees were required to perform, or to refrain from performing—instead leaving individual jurors to make up these standards for themselves.” Instead, the majority’s analysis of the duty question “fail[ed] to specifically identify what the exact duty was—outside of supervision and training. It also put[] the burden on Werner to rebut the duty the majority created (that no court has ever recognized.” As such, the majority’s holding contradicted SCOTX’s ruling in Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499 (Tex. 2017), which held that “courts cannot simply require employers ‘to exercise ordinary care in all circumstances,’ but must be ‘more specific.’” Submission of this question thus constituted reversible error because “we cannot know what duties jurors decided upon, we cannot determine whether Werner actually owed such duties, much less whether the duty was breached or whether the breach was a proximate cause of [Plaintiffs’] injuries.”
The chief justice would have reversed and remanded for new trial because the erroneous submission of the general negligence question introduced an invalid legal theory upon which the jury could have predicated its allocation of fault to Werner. This is the Casteel problem that Werner properly preserved for appeal and that the majority brushed aside. However, she disagreed with Justice Wilson’s dissent, which, as noted below, calls for the adoption of the “Admission Rule.”
Justice Wilson, joined by Justices Wise and Jewell, filed a separate dissenting opinion. He advocates for the adoption of the “Admission Rule,” which would, with the exception of exemplary damages, “bar[] a party allegedly injured by the employee’s negligence from pursuing derivative theories of negligence against the employer” if the employer stipulates course and scope. Since Werner did that in this case and the evidence was insufficient to support a gross negligence finding, Justice Wilson would hold that the trial court erred in denying its motion for a directed verdict on the derivative theories. He would thus reverse the trial court’s judgment, enter a judgment that Plaintiffs take-nothing on their derivative claims, and remand for new trial.
Obviously, this case has enormous implications for commercial trucking litigation (and beyond that as well). First, the question of a general negligence duty on the employer. It seems to us that Chief Justice Christopher’s Pagayon critique is entirely correct. If plaintiffs can get submission of a general negligence question (outside of negligent supervision and training), like they did here, there will be no way for employers to defend themselves without risking a nuclear verdict. Settlement values will skyrocket. Trucking companies will go out of business and people will lose their jobs. And, as always when new, expansive legal duties are created, business owners and consumers will pay for it in the end.
Second, Justice Wilson’s arguments in favor of the “Admission Rule” (also known as the “McHaffie Rule” for the 1995 Missouri case that enunciated it) are persuasive. If an employer admits vicarious liability, that should put an end to derivative theories such as negligent supervision and training unless plaintiff can obtain the predicate finding that the driver was negligent and then proceed to try derivative theories against the employer in the second phase of a bifurcated trial. (This was the whole point of the 2021 trucking liability reform bill (HB 19) before it got watered down on the House floor.) Justice Wilson helpfully points out that “[a]t least eight United States District Court judges have predicted that the Supreme Court of Texas would adopt the Admission Rule if this question were before the high court.” Keep in mind, however, that this case arose under the law prior to the 2021 changes, which require bifurcation of the trial into compensatory damages and punitive damages phases on motion of a defendant and adopt (with significant exceptions pertaining to a negligent entrustment claim) the Admission Rule. Consequently, if SCOTX goes in that direction, the change would only apply to commercial trucking cases commenced on or after September 1, 2021 pending in the seven court of appeals districts that have not already adopted it. (According to Justice Wilson, those that have adopted the rule are Dallas, El Paso, Beaumont, Tyler, and Houston [1st].) Even so, this would make a very significant difference in a lot of pre-HB 19 cases that have multiple derivative theories mixed up with the driver’s direct negligence. TADC has filed an amicus brief supporting adoption of the Admission Rule without the gross negligence exception proposed by Justice Wilson.
Third, both Chief Justice Christopher and Justice Wilson found multiple errors in the jury charge, from the Casteel problem to three separate comparative responsibility charges. Justice Wilson even pointed out that Werner’s share of fault more than doubled depending on whether the question commingled direct and derivative theories, demonstrating that allowing plaintiffs to shift the focus of a trucking case from the driver’s actions to the alleged misdoings of the company really does inflame the jury and has a material effect on verdicts. As we have stated in this past, these tactics are part and parcel of reptile theory, and as long as plaintiffs have any loophole that allows them to put the employer’s negligence before the jury in the compensatory damages phase, they will, pardon the pun, drive a truck through it. Chief Justice Christopher makes a point in her dissent to implore SCOTX to address specifically how the jury should be charged in a case like this, and we agree that such guidance would be both welcome and appropriate.
Fourth and finally, we would hope that the Court directly address the validity of the plethora of derivative theories of the employer’s liability that have become common staples in these cases and whether they permit duplicative recoveries for the same injuries. What precisely is the duty of the driver’s employer to all the other people on the road? Is there a safe harbor and, if so, what is it? How much regulatory compliance is enough? In this case the court of appeals went to great lengths to manufacture a non-specific general duty that masquerades in the court’s analysis as a “special” one. While SCOTX in the recent past has clipped the wings of courts of appeals when it comes to judicially-created duties, perhaps in this case it could offer more definitive guidance as to this type of litigation in particular.
A copy of TCJL’s brief is posted here.
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