Court of Appeals of Texas, San Antonio.

Jack DONALDSON and Shirley Donaldson, Individually and as Heirs and Survivors

of Nerissa Villarreal, Deceased, and as Next Friends for Charlotte Walters and

as Personal Representatives of the Estate of Nerissa Villarreal, Deceased,

Appellants/Cross-Appellees

v.

J.D. TRANSPORTATION COMPANY, INC. and Jaime Dominguez, Individually,

Appellees/Cross-Appellants

From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2003-CI-00767 Honorable Martha Tanner, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. López, Chief Justice Karen Angelini, Justice Phylis J. Speedlin, Justice

Delivered and Filed: June 22, 2005

AFFIRMED

Jack and Shirley Donaldson appeal from the trial court’s judgment awarding them damages against J.D. Transportation Company in their wrongful death and survival suit brought as a result of the death of their daughter, Nerissa Villarreal. On appeal, the Donaldsons contend the trial court erred in failing to hold Jaime Dominguez individually liable in addition to holding the company vicariously liable for Dominguez’s negligence. A cross appeal was also filed by J.D. Transportation Company and Jaime Dominguez challenging the trial court’s findings that Jaime Dominguez was negligent, that his negligence was a proximate cause of the death of Nerissa Villarreal, the proportionate responsibility attributable to any negligence of Jaime Dominguez, and the sufficiency of the evidence supporting the damages awarded. We conclude that there is insufficient evidence to support the trial court’s finding that Jaime Dominguez’s negligence was a proximate cause of the injuries to and death of Nerissa Villarreal. However, because the trial court’s judgment held J.D. Transportation Company vicariously responsible for the entire amount of damages awarded based on the negligence of both Ruben Villarreal and Jaime Dominguez, and did not provide for any individual liability by Jaime Dominguez, our conclusion does not require modification of the trial court’s judgment. We therefore affirm the judgment.

BACKGROUND

On June 2, 2002, Ruben Villarreal, a truckdriver employed by J.D. Transportation Company, was driving a commercial truck eastbound on Interstate 10 through New Mexico on his way from California to Texas. Nerissa Villarreal, Ruben’s wife and co-driver, was a passenger in the truck. At approximately 4:30 a.m., the truck left the roadway and overturned, striking a guardrail. Both Ruben and Nerissa Villarreal were killed in the accident.

Jack and Shirley Donaldson brought suit against J.D. Transportation and Jaime Dominguez under the wrongful death and survival statutes individually, as the heirs and personal representatives of their daughter’s estate, and as next friend of their granddaughter, Charlotte Walters. The suit alleged that the injuries and death of Nerissa Villarreal were proximately caused by the negligence of the driver, Ruben Villarreal, and the negligence of his supervisor, Jaime Dominguez, in the hiring, supervision, and retention of Mr. Villarreal. The Donaldsons alleged that the trucking company was vicariously liable for the negligence of both Ruben Villarreal and Dominguez. They sought damages for the conscious pain and suffering and mental anguish experienced by Nerissa prior to her death in the accident; Nerissa’s funeral expenses; their own individual mental anguish and loss of companionship as a result of their daughter’s death; and for the pecuniary losses, loss of companionship, and mental anguish of Charlotte Walters as a result of the death of her mother.

The case was tried to the court in May 2004. The trial court entered judgment that the Donaldsons were entitled to recover damages from J.D. Transportation based on the company’s vicarious liability for the acts of both Ruben Villarreal and Jaime Dominguez, but ordered that the Donaldsons take nothing against Jaime Dominguez individually. The judgment awarded the following damages: $303,431.60 to Shirley Donaldson; $303,431.60 to Jack Donaldson; and $929,112.00 to Charlotte Walters. In its findings of fact and conclusions of law, the trial court found that Jaime Dominguez, acting in the course and scope of his employment, had been solely responsible for the hiring, supervision, and retention of employees of J.D. Transportation, including Ruben Villareal; that Jaime Dominguez had been negligent in the hiring, supervision, and retention of Ruben; and that this negligence was a proximate cause of the injuries to and death of Nerissa Villarreal. The trial court further found that Dominguez was 51% responsible for the injuries and death of Nerissa and Villarreal was 49% responsible. The trial court concluded that the company was vicariously liable for the negligence of both Ruben Villarreal, as the driver, and Jaime Dominguez. [FN1] The court further concluded that Dominguez could not be held individually liable.

FN1. The parties do not challenge the trial court’s findings as to Ruben Villarreal’s negligence or J.D. Transportation’s vicarious liability for his negligence.

Based on a thorough review of the evidence, we conclude that there is insufficient evidence to support the trial court’s finding that Dominguez’s negligence in the hiring, supervision, and retention of Villarreal was a proximate cause of the injuries and death of Nerissa Villarreal. However, our conclusion does not require any modification to the trial court’s judgment. J.D. Transportation is liable for all of the damages awarded based solely on its vicarious liability for Ruben Villarreal’s negligence. Accordingly, we affirm the trial court’s judgment.

ANALYSIS

The Donaldsons appeal the trial court’s judgment, contending that the judge erred by not holding Dominguez personally liable. J.D. Transportation and Dominguez cross-appeal, challenging the trial court’s findings of fact related to Dominguez’s negligence as well as the sufficiency of the evidence to support the damages.

Negligence and Proximate Cause

J.D. Transportation and Jaime Dominguez contend in their second issue on cross-appeal, that there is no evidence, or alternatively insufficient evidence, to support the court’s finding that the negligence of Jaime Dominguez was a proximate cause of the injuries and death of Nerissa Villarreal. We agree.

When the trial court acts as a factfinder, we review the court’s findings under legal and factual sufficiency standards. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998); Morris v. Powell, 150 S.W.3d 212, 217 (Tex.App.– San Antonio 2004, no pet.); W. Wendell Hall, Standards of Review in Texas, 34 ST. MARY’S L.J. 1, 182 (2002). The trial court’s findings of fact carry the same force and dignity as a jury’s verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991); McLaughlin, Inc. v. Northstar Drilling Technologies, Inc., 138 S.W.3d 24, 27 (Tex.App.–San Antonio 2004, no pet.). In analyzing the legal sufficiency of the evidence supporting a finding of fact, we examine the record for evidence and inferences that support the challenged finding, while disregarding all contrary evidence and inferences. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994), McLaughlin, Inc, 138 S.W.3d at 27. If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge cannot be sustained. Catalina, 881 S.W.2d at 297; McLaughlin, Inc, 138 S.W.3d at 27. When analyzing the factual sufficiency of the evidence, we consider all of the evidence in the record both for and against the finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); McLaughlin, Inc, 138 S.W.3d at 27. We will hold the evidence factually insufficient if we conclude the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176; McLaughlin, Inc, 138 S.W.3d at 27.

To successfully prosecute their claim of negligent hiring, supervision, or retention, the Donaldsons were required to establish that “(1) the employer owed a legal duty to protect third parties from the employee’s actions, and (2) the third party sustained damages proximately caused by the employer’s breach of that legal duty.” Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 655 (Tex.App.–Dallas 2002, pet. denied) (citing Houser v. Smith, 968 S.W.2d 542, 544 (Tex.App.–Austin 1998, no pet.)). The basis of responsibility for negligent hiring is the employer’s own negligence in hiring an incompetent employee whom the employer knows, or by the exercise of reasonable care should have known, to be incompetent or unfit, thereby creating an unreasonable risk of harm to others. Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex.Civ.App.–Tyler 1979, writ ref’d n.r.e.).

The Donaldsons alleged that Dominguez breached his duty to use reasonable care by failing to comply with federal regulations governing the hiring of commercial truck drivers. See 49 C.F.R. § § 391.15–391.45 (2004). “The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself.” RESTATEMENT (SECOND) OF TORTS § 288B (1) (1965); see also Saenz v. J.D. Rodriguez Produce & Trucking Co., No. 04-99-00867-CV, 2000 WL 33225303, at *3 (Tex.App.–San Antonio Dec. 29, 2000, pet. denied) (not designated for publication) (unexcused violation of a statute constitutes negligence as a matter of law if such statute was designed to prevent injury to the class of persons to which the injured person belongs). Such negligence makes the actor subject to liability; in order to be liable, however, his conduct must still be a legal cause of the harm to the plaintiff. RESTATEMENT (SECOND) OF TORTS § 288B (1) cmt. b.; Missouri Pac. R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex.1977) (finding of negligence per se only subjects one to possible liability, and a showing of proximate cause is still required); Saenz, 2000 WL 33225303, at *3 (the factfinder must decide if the tortfeasor committed the act proscribed by the statute and if the act proximately caused the injury); see also Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 427 (Tex.App.–Houston [1st Dist.] 1990, no writ) (federal motor carrier safety regulations merely establish the standard of care required by law).

Proximate cause is comprised of two elements–cause in fact and foreseeability. Leitch v. Hornsby, 935 S.W.2d 114, 118-19 (Tex.1996). A “negligent act or omission is not a cause in fact unless ‘but for the conduct the accident would not have happened.’ ” Williams v. Steves Indus., Inc., 699 S.W.2d 570, 575 (Tex.1985) (quoting Kerby v. Abilene Christian Coll., 503 S.W.2d 526, 528 (Tex.1973)). If the same harm would have been sustained even had the actor taken the required precautions, his failure to do so can not be a substantial factor in bringing it about. RESTATEMENT (SECOND) OF TORTS § 432(1) cmt. b (1965).

Here, the parties agree that Dominguez and J.D. Transportation owed a duty to Nerissa Villarreal, and that Dominguez violated that duty by failing to strictly comply with the federal regulations for hiring commercial truck drivers. The Donaldsons contend that had Dominguez complied with the requirements, Dominguez would have learned facts that would have prevented the hiring of Ruben Villarreal as a driver–namely, that Ruben Villarreal (1) was an insulin dependent diabetic, and (2) had a prior criminal conviction and subsequent revocation of probation for a drug-related offense in 1996.

An established medical history or clinical diagnosis of diabetes requiring insulin is a disqualifying characteristic for commercial truck drivers. 49 C.F.R. § 391.41(b)(3) (2004). However, the only evidence of Villarreal’s diabetic condition came from Nerissa’s family members. There is no requirement that Dominguez interview or seek information from an applicant’s family members, nor is there any evidence that had he complied with the other hiring requirements, Dominguez would have learned of the diabetes from another source. See 49 C.F.R. § § 391.15–391.45. The Donaldsons contend that Villarreal’s previous employer had terminated his employment due to his hospitalization for diabetes; however, there is no record evidence to support this contention. Jack Donaldson testified that Villarreal had been let go from his employment with another trucking company. Donaldson further testified that Villarreal’s termination occurred before he was hospitalized for a period of time related to his diabetes. Donaldson’s testimony does not establish, however, that Villarreal’s employment was terminated because of his diabetic condition, or that his previous employer even knew of the condition at the time Villarreal’s employment ended. By contrast, there is evidence that Villarreal provided Dominguez with a valid medical release card prior to his employment with J.D. Transportation which contained no indication of diabetes. Based on our review of the record, we conclude there is no evidence that compliance with the hiring regulations would have caused Dominguez to discover Villarreal’s diabetes as a condition disqualifying him from employment.

While there was some evidence of Villarreal’s prior conviction for a drug-related offense, there was no evidence that had Dominguez learned of this prior conviction, he would have been precluded from hiring Villarreal as a driver. The applicable regulations only require that an applicant’s driving record be reviewed for violations of motor vehicle laws within the past three years, but do not require that a criminal background check be completed. 49 C.F.R. § § 391.21(b)(8), 391.23(a)(1) (2004). We conclude that, even had Dominguez complied with the regulatory requirements to review and retain Villarreal’s driving record, discovery of a conviction unrelated to motor vehicle laws which occurred six years prior to his application for employment would not necessarily have prevented Dominguez from hiring Villarreal. See id.; PERLINK”http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=713&FindType=Y&ReferencePositionType=S&SerialNum=1996273025&ReferencePosition=119″Leitch, 935 S.W.2d at 119 (proof of causation can not “turn upon speculation or conjecture”).

Based on our review of the record, we conclude there is no evidence to support the trial court’s finding that any negligent act or omission by Dominguez was a proximate cause of the injuries and death of Nerissa Villarreal. Without proximate cause, Dominguez’s negligence in failing to comply with the federal regulations can not be the basis of liability for either Dominguez individually or for J.D. Transportation under a respondeat superior theory. Therefore, the Donaldsons’ sole issue on appeal is overruled and J.D. Transportation’s second issue on cross-appeal is upheld. [FN2]

FN2. Because of our conclusions regarding proximate cause, we need not reach the first and third issues raised on cross-appeal.

Damages

In issues four through ten on cross-appeal, J.D. Transportation and Dominguez challenge the sufficiency of the evidence to support the various amounts of damages awarded by the trial court. The trial court’s conclusions of law state the total amounts awarded to each plaintiff for past and future damages, but do not specify the damage elements to which the amounts correspond. Because there was no request for additional findings of fact or conclusions of law drawing the trial court’s attention to any complaint of insufficient evidence on any element of damages, J.D. Transportation and Dominguez are limited to challenging the sufficiency of the evidence supporting the damages awarded to each plaintiff as a whole. Tagle v. Galvan, 155 S.W.3d 510, 516 (Tex.App.– San Antonio 2004, no pet.). Therefore, we need not decide if the evidence is sufficient to support each individual damage element presented by the plaintiffs and will consider the evidence in the record as a whole. Id. at 518. If the amount of damages awarded to each plaintiff is supported by sufficient evidence of any element of damages requested as to that plaintiff, then we will uphold the award. Id. The plaintiffs requested damage awards for the physical pain and suffering and funeral expenses of Nerissa Villarreal; [FN3] past and future pecuniary losses, mental anguish, and loss of companionship for Charlotte Walters; [FN4] and past and future mental anguish and loss of companionship for both Jack and Shirley Donaldson.

United States Court of Appeals,

Fifth Circuit.

The NATIONAL HISPANIC CIRCUS, INC., A New York not-for-profit Corporation,

Plaintiff–Counter Defendant–Appellee

v.

REX TRUCKING INC, etc.; et al., Defendants

Mason & Dixon Lines, Inc., Defendant–Counter Claimant–Appellant.

June 23, 2005.

Appeal from the United States District Court for the Southern District of Texas.

Before WIENER, DeMOSS, and PRADO, Circuit Judges.

WIENER, Circuit Judge.

1 Defendant–Counter Claimant–Appellant Mason & Dixon Lines, Inc. (“Mason”) challenges a jury verdict and damages awarded in favor of Plaintiff-Counter Defendant-Appellee the National Hispanic Circus (the “Circus”). We affirm.

This dispute arises out of a missing set of circus bleachers, lost somewhere between Texas and Chicago while in the care of Mason. The Circus regularly employed Mason’s trucks and drivers to transport its equipment from one show to the next. On this occasion, however, one of seven trailers–the one carrying half of the Circus’s bleachers–never made it to the Chicago show. Consequently, the Circus was forced to rent replacement bleachers which provided approximately 600-700 fewer seats than its own bleachers. Several weeks later, the Circus ordered replacement bleachers, which had to be custom-made in Italy to fit its tent. The cost of the replacement bleachers was $87,500.00, which the Circus was forced to pay in advance. The shipping cost was $36,104.00. (Approximately three months after its disappearance, the Circus’s trailer containing its original bleachers was discovered in Arkansas.)

The Circus brought suit under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 et seq., against Mason and Rex Trucking [FN1] for damages it suffered as a result of the lost trailer. Mason asserted a counterclaim for the balance of the Circus’s freight charges for the trailers Mason did deliver timely to Chicago.

At the completion of the trial, the jury awarded the Circus damages of $9,000 for rental of replacement bleachers, $123,000 for the purchase and shipping of the new bleachers, and $16,500 for lost ticket sales. It awarded Mason $15,600 on its counter-claim for payment for timely delivery of the six other trailers. Mason then renewed an earlier motion for judgment as a matter of law and moved alternatively for a new trial. The district court struck the award for lost ticket sales as too speculative and offset the rest of the Circus’s award by the amount of Mason’s award, thus granting total damages to the Circus of $116,400, including pre- and post-judgment interest, but upheld all other aspects of the jury’s verdict and its own rulings. Mason appeals the district court’s denial of its motions for judgment as a matter of law and for a new trial, as well as one of the district court’s evidentiary rulings and its calculation of damages.

1. General v. Special Damages

We review de novo a district court’s denial of a Federal Rule of Civil Procedure 50 motion for judgment as a matter of law. [FN2] Under this standard, judgment as a matter of law “is appropriate only where there is no legally sufficient basis for a reasonable jury to find for [a] party.” [FN3] Although our review is de novo, we accord great deference to a jury verdict, evaluating the evidence in the light most favorable to the non-movant and reversing only if “the evidence at trial points so strongly and overwhelmingly in the movant’s favor that reasonable jurors could not reach a contrary conclusion.” [FN4]

The Carmack Amendment allows a shipper to recover damages from a carrier for “actual loss or injury to the property” resulting from the transportation of cargo in interstate commerce. [FN5] A carrier’s liability under the Carmack Amendment includes all reasonably foreseeable damages resulting from the breach of its contract of carriage, “including those resulting from nondelivery of the shipped goods as provided by the bill of lading.” [FN6]

2 Both general and special damages may be recovered under the Carmack Amendment. [FN7] General damages are those that are foreseeable at the time of contracting. [FN8] Special damages are those that result from a party’s breach of contract but are not reasonably foreseeable. Special damages generally are not recoverable in a breach of contract action absent actual notice to the defendant of special circumstances from which such damages might arise. [FN9]

Mason argues that the district court erred by submitting the foreseeability of the Circus’s damages to the jury rather than deciding as a matter of law that the Circus’s damages were special rather than general. But, “[t]he question whether or not the defendant did in fact foresee, or had reason to foresee, the injury that the plaintiff has suffered is a question of fact for the jury.” [FN10]

The jury heard evidence that Mason (actually Rex) had previously shipped the Circus’s equipment, that Mason employees filled out the bills of lading without listing the trailer’s contents, and that Mason knew that it was shipping a “wide variety” of the Circus’s equipment. This evidence was sufficient to support the jury’s finding that Mason should have foreseen the injury to the Circus. [FN11]

2. Jury Instructions; Denial of New Trial

As Mason objected to the district court’s jury instructions at trial, our review is for abuse of discretion. [FN12] A district court does not abuse its discretion if its instructions, as a whole, state the law correctly and instruct the jury properly on the legal principles to be applied to the facts that they will decide. [FN13] Mason also appeals the district court’s denial of its motion for a new trial based on what it terms inconsistent answers to the jury’s interrogatories, a decision we review for abuse of discretion. [FN14]

Mason asserts that the district court improperly refused to craft an interrogatory that requested the jury to determine whether the damages being sought by the Circus were foreseeable in the absence of actual notice. Instead, the district court separated the inquiry into two interrogatories, asking the jury, first, to determine whether the listed injuries were reasonably foreseeable to Mason at the time of contracting. The jury was instructed that, if it answered in the negative, it should then determine whether Mason had actual notice of circumstances that could give rise to the Circus’s injuries. Posing this inquiry as two separate questions neither mis-stated the law nor made it impossible to tell whether the jury awarded general or special damages.

Mason goes on to argue that the jury’s verdict was inconsistent. Rather than awarding money damages after determining that the Circus’s damages were reasonably foreseeable, the jury instead determined that Mason also had actual notice of the Circus’s potential damages. Mason contends that this mistake requires a new trial, as the Circus presented no evidence showing that Mason had actual notice of the possibility of special damages; thus, it asserts, the jury’s verdict may have rested on a theory that lacked adequate support in the record. [FN15]

3 Even if the jury’s answers were inconsistent,–a highly implausible contention– [FN16] a new trial still was not required if the verdict can be explained by assuming that the jury misunderstood the question. [FN17] If the jury’s answer to a question that was supposed to pretermit further inquiry is clear and disposes of the legal issues, we must ignore the jury’s conflicting answers to any other questions, as they are irrelevant. [FN18] As the jury’s answer to the second question was superfluous to its finding that Mason could reasonably have foreseen the damages to the Circus, Mason is not entitled to a new trial or a judgment as a matter of law. [FN19]

3. Exclusion of Witness’s Testimony Under Rule 701

We review a district court’s decision to exclude evidence for abuse of discretion. [FN20] If we find an abuse of discretion, we apply the harmless error rule to determine whether the error affected the substantial rights of the complaining party. [FN21]

Mason complains that a portion of the testimony of its corporate claims manager, Ralph Castile, was improperly excluded. Castile’s job is, in large part, to sell at salvage cargo that has been refused by the consignee or damaged in transit. Castile was permitted to describe the process by which he conducts those sales and stated that he had been able to determine the market value of the bleachers. The district court nevertheless excluded Castile’s opinion testimony on the re-sale value of the bleachers.

Under Rule 701, “[a] lay opinion must be based on personal perception, must be one that a normal person would form from those perceptions, and must be helpful to the [fact finder].’ ” [FN22] “In particular, the witness must have personalized knowledge of the facts underlying the opinion and the opinion must have a rational connection to those facts.” [FN23] Rule 701 does not exclude testimony by corporate officers or business owners on matters that relate to their business affairs, such as industry practices and pricing. [FN24]

Castile was allowed to testify on matters relating to his own business experience, as permitted by Rule 701. The district court properly excluded his testimony on matters, including the re-sale value of used, custom-made bleachers, about which he had no first-hand knowledge or experience. The district court’s ruling on Castile’s testimony was an appropriate exercise of its discretion.

4. Calculation of Damages

We review legal conclusions underlying an award of damages de novo. [FN25] If the district court committed no legal error, we review its factual findings for clear error. [FN26]

Mason insists that the district court erred in awarding the Circus the cost of its new bleachers. As it did not actually lose the bleachers but only misplaced them for several months, Mason argues, it should be liable only for damages resulting from the rental of temporary bleachers and any diminution in the bleachers’ value during the time that Mason possessed them.

4 The Carmack Amendment incorporates common law principles for calculation of damages. “Ordinarily the measure of damages where the carrier fails to deliver a shipment at destination within a reasonable time is the difference between the market value of the goods at the time of delivery and the time when they should have been delivered.” [FN28] This method, however, is not the exclusive means by which damages may be measured in Carmack Amendment cases: It is not applied when another method will more accurately reflect the loss actually suffered by the plaintiff. [FN29]

Under particular circumstances, replacement cost can be a legitimate measure of Carmack Amendment damages. [FN30] Here, the district court was required to determine the Circus’s actual loss, using the most appropriate method. [FN31] This case presents a circumstance in which awarding “market value” diminution or rental price of substitute equipment would not be appropriate, because the award would not fairly compensate the plaintiff for its actual loss. [FN32]

The Circus requires custom-made bleachers to fit its tent. Although its bleachers were eventually found, [FN33] the Circus had already fully paid for its new bleachers by that time, and the jury implicitly rejected Mason’s argument that the Circus should have mitigated its damages by selling the old bleachers once they were recovered. The Circus had no reason to believe that the bleachers would be found or returned and, under these circumstances, made a reasonable decision to purchase new ones. The Circus was properly compensated for its actual loss, the cost of the new bleachers.

For these reasons, the district court’s judgment is, in all respects,

AFFIRMED.

FN1. Mason acquired Rex approximately two weeks prior to the events at issue and agreed to answer for any damages the Circus could establish against Rex. Rex was therefore dismissed from this suit.

FN2. Arguello v. Conoco, Inc., 330 F.3d 355, 357 (5th Cir.2003).

FN3. Id.

FN4. Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316, 1323 (5th Cir.1994).

FN5. 49 U.S.C. § 14706(a)(1).

FN6. Air Prods. & Chems., Inc. v. Ill. Cent. Gulf R.R. Co., 721 F.2d 483, 485 (5th Cir.1983).

FN7. Paper Magic Group, Inc. v. J.B. Hunt Transp., Inc., 318 F.3d 458, 461-62 (3d Cir.2003).

FN8. Hector Martinez & Co. v. S. Pac. Transp. Co., 606 F.2d 106, 109 (5th Cir.1979).

FN9. Tex. A & M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 404 (5th Cir.2003).

FN10. 11-56 Corbin on Contracts § 1012 (2005). “The foreseeability of damages is a fact question we review for clear error,” Texas A & M, 338 F.3d at 405, and “[t]he amount of damages that was reasonably foreseeable involves a fact question that [the plaintiff] is entitled to present to a jury.” Martinez, 606 F.2d at 110.

FN11. See Air Prods., 721 F.2d at 487 (upholding district court’s factual finding that plaintiff’s damages were foreseeable because defendant’s employees knew that plaintiff immediately unloaded deliveries of chemicals into a storage tank, that they should have reasonably anticipated that delivery of the wrong chemical would result in contamination of entire contents of the storage tank, and that it would cost money to clean up the mess).

FN12. United States v. Daniels, 281 F.3d 168, 183 (5th Cir.2002).

FN13. United States v. Dien Duc Huynh, 246 F.3d 734, 738 (5th Cir.2001).

FN14. Knight v. Texaco, 786 F.2d 1296, 1299 (5th Cir.1986).

FN15. See Braun v. Flynt, 731 F.2d 1205, 1206 (5th Cir.1984) ( “When two claims have been submitted to the jury, whether on a general verdict or, as here, in a single interrogatory, a new trial may be required if one of the claims was submitted erroneously.”) (quoting United N.Y. & N.J. Sandy Hook Pilot Ass’n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959)).

FN16. A jury’s answers “should be considered inconsistent … only if there is no way to reconcile them.” Willard v. The John Hayward, 577 F.2d 1009, 1011 (5th Cir.1978). In this case, it is conceivable that the jury found both that the damages at issue were reasonably foreseeable and that Mason had actual notice of the possibility of this kind of injury.

FN17. Smith v. Tidewater Marine Towing, 927 F.2d 838, 843 (5th Cir.1991) (citing Willard, 577 F.2d at 1011).

FN18. White v. Grinfas, 809 F.2d 1157, 1161 (5th Cir.1987); Carr v. Wal-Mart Stores, Inc., 312 F.3d 667, 674 (5th Cir.2002).

FN19. As we may ignore the jury’s answer to the second interrogatory, asking whether Mason had actual notice of the Circus’s damages, we do not consider Mason’s argument that this finding was not supported by the evidence.

FN20. Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 660 (5th Cir.2002)

FN21. United States v. Asibor, 109 F.3d 1023, 1032 (5th Cir.1997).

FN22. Miss. Chem. Corp. v. Dresser-Rand Co., 287 F.3d 359, 373 (5th Cir.2002) (quoting United States v. Riddle, 103 F.3d 423, 428 (5th Cir.1997)).

FN23. Id. at 373-74 (allowing corporation’s director of risk management to testify to lost profits, and collecting cases from other circuits holding likewise).

FN24. Tex. A & M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 403 (5th Cir.2003) (citation omitted).

FN25. Texas A & M, 338 F.3d at 404 (citing Harken Exploration Co. v. Sphere Drake Ins. P.L.C., 261 F.3d 466, 477 (5th Cir.2001)).

FN26. Id. (citing Tyler v. Union Oil Co., 304 F.3d 379, 401 (5th Cir.2002)).

FN27. Hector Martinez & Co. v. S. Pac. Transp. Co., 606 F.2d 106, 108 (5th Cir.1979).

FN28. Richard A. Lord, 24 Williston on Contracts § 64:12 (4th ed. 2004). See also Oak Hall Cap & Gown Co. v. Old Dominion Freight Line, Inc., 899 F.2d 291, 296 (4th Cir.1990); Martinez, 606 F.2d at 110.

FN29. Project Hope v. M/V Ibn Sina, et al., 250 F.3d 67, 77 (2d Cir.2001) (admiralty case) (holding that district court did not abuse its discretion when it ordered the defendant to pay replacement cost of lost cargo, as that was the most accurate measure of the plaintiff’s damages); Oak Hall, 899 F.2d at 296 (approving award of replacement cost of damaged academic robes, as the plaintiff secured substitute goods after the accident, lost no sales, and had no opportunity for sales with the damaged goods); Martinez, 606 F.2d at 110-11.

FN30. See Am. Nat’l Fire Ins. Co. v. Yellow Freight Sys., 325 F.3d 924, 935 (7th Cir.2003) (“The other measure commonly used is the replacement cost of the damaged goods to the shipper–particularly when the shipper has not lost a sale, but was able to timely purchase replacements.”); Project Hope, 250 F.3d at 77; Oak Hall, 899 F.2d at 296.

FN31. See Martinez, 606 F.2d at 110.

FN32. See Air Products & Chemicals, Inc. v. Illinois Central Gulf Railroad Co., 721 F.2d 483, 485 (5th Cir.1983) (holding defendant carrier liable for the cost of cleaning plaintiff’s chemical storage tank after carrier had mistakenly delivered the wrong chemical, plaintiff had emptied the chemical into the tank, and massive clean-up was required).

FN33. Mason did not even deliver the bleachers to the Circus, however; it merely notified the Circus of the found trailer, requiring the Circus to send a tow truck to fetch its bleachers from Arkansas.