Court of Appeals of Texas, Houston (14th Dist.).
WERNER ENTERPRISES, INC. and Shiraz A. Ali, Appellants
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 Briana Blake, Appellees
NO. 14-18-00967-CV
Opinions filed May 18, 2023
On Appeal from the 127th District Court, Harris County, Texas, Trial Court Cause No. 2015-36666
Attorneys and Law Firms
Thomas C. Wright, Brian Cathey, R. Russell Hollenbeck, Amanda S. Hilty, Houston, Dale R. Mellencamp, for Appellant.
Zollie Steakley, Darrin Mitchell Walker, Zona Jones, Beaumont, Eric Penn, for Appellee.
EN BANC MAJORITY OPINION
Meagan Hassan, Justice
*1 A trucking company and its employee-trainee-driver appeal the trial court’s judgment awarding over $100 million after a twenty-five-day trial over six weeks that produced a 4,733-page Reporter’s Record, a 5,882-page Clerk’s Record, 28,657 pages of exhibits, and appellate briefs from both parties that permissibly exceeded rule-imposed word limits. A majority of this Court voted to consider this matter en banc. We affirm.
Issues
Appellants Werner Enterprises Inc. and Shiraz A. Ali (together, “Appellants”) frame their appeal as raising six issues: (1) legal and factual sufficiency with respect to the jury’s negligence liability finding against the driver (Ali), (2) legal and factual sufficiency with respect to the jury’s negligence liability findings against the trucking company (Werner), (3) jury charge issues, (4) apportionment issues, (5) admission of five different pieces of evidence, and (6) the jury’s award of future medical care expenses.
Background
I. Summary
Trey Salinas was driving a vehicle with Jennifer Blake and her three children on eastbound Interstate 20 (“I-20”) near Odessa, Texas on December 30, 2014, during a National Weather Service Winter Storm Warning. Salinas lost control of the vehicle and it crossed the 42-foot-wide grassy median before colliding with an 18-wheeler traveling over 40 miles per hour. Ali was driving the 18-wheeler, which was owned by Werner Enterprises (the “Werner Truck”).
As a result of the collision, seven-year-old Zachery Blake died, his 12-year-old sister, Brianna Blake, suffered a severe traumatic brain injury and was rendered a quadriplegic, and fourteen-year-old Nathan Blake suffered a broken shoulder blade, broken collar bone, bruised lung, and other injuries. Jennifer Blake suffered a mild traumatic brain injury, contusions, a hematoma, and other injuries.
Appellees Jennifer Blake, individually and as next friend for Nathan Blake and as heir of the estate of Zachary Blake, and Eldridge Moak, in his capacity as Guardian of the Estate of Brianna Blake (together, “the Blakes”), sued Appellants for damages stemming from the collision. The jury found both Appellants liable and assessed over $100 million in damages. The trial court signed a final judgment on July 30, 2018. Appellants timely appealed.
II. Relevant Facts
The jury heard the following:
(1) two weeks before his collision with the Blakes’ vehicle, Ali received the second-lowest possible score on an evaluation from a Werner supervisor (an 8 out of 21);
(2) Ali knew he was driving in “freezing rain”;
(3) freezing rain is the sole cause of black ice;
(4) even “misting” generates a sufficient amount of water to give rise to black ice if it is below freezing;
(5) black ice is almost invisible;
(6) with black ice, traction becomes almost non-existent;
(7) there was black ice at the scene of Ali’s collision with the Blakes — “[i]t was like a skating rink”;
(8) that area of I-20 was “covered” in ice;
*2 (9) there was a National Weather Service Winter Storm Warning in effect at the time of the collision;
(10) a Winter Storm Warning meant “that whatever condition they’re warning of is either imminent or occurring”;
(11) it is critical for drivers to monitor weather updates in such an environment so that they can know when the “happening soon” changes to “happening now”;
(12) if weather conditions are unsafe, drivers should “absolutely” not drive, “no debate there”;
(13) Ali acknowledged that Werner taught or trained him that “we know what the consequences are if a passenger vehicle loses control on ice in front of a 30- or 40-ton 18-wheeler going highway speeds”;
(14) Werner’s director of safety acknowledged that “all vehicles, certainly passenger vehicles included, are more likely to lose control on icy roads” and that “[n]obody should drive on ice”;
(15) Texas Department of Public Safety State Trooper Corey Vanderwilt testified he (a) observed a section of I-20 just west of Odessa that was covered in ice; (b) believed that section of I-20 was unsafe to drive on; (c) was driving at 5 to 10 miles per hour (with his emergency lights on) in these conditions; (d) saw a vehicle pass his vehicle at 20 to 30 miles per hour; (e) believed 20 to 30 miles per hour was too fast based on the road conditions; (f) watched said vehicle lose control, slide across the median, and collide with another vehicle traveling the opposite direction; (g) cited the driver of said vehicle for driving at an unsafe speed; (h) believed said driver should have known there was ice because she was driving on ice westbound and “she was in it. Everybody was. As many crashes as I’m sure she’s passed along the way, she should have known that going at that rate of speed that she was going was unsafe for those roadway conditions”; and (i) to the best of his recollection, the road surface conditions at the site worsened over time;
(16) Ali drove past the collision Officer Vanderwilt was working four and a half minutes before he collided with the Blakes’ vehicle;
(17) Texas Department of Public Safety Officer Christopher Weimer testified (a) he responded to a one-car accident that had occurred at 3:00 p.m.; (b) he arrived on-scene at 3:43 p.m. and observed the icy condition of the overpass where the accident occurred; (c) his crash report stated that the driver was “traveling at an unsafe speed for the icy road conditions”, struck a center concrete barrier, and came to rest facing eastward in the center median; (d) he was told the car slid on the ice that was on I-20 westbound; and (e) he observed yet another one-vehicle accident that occurred about 100 feet away;
(18) Officer Weimer also (a) observed a pickup truck traveling at an unsafe speed on westbound I-20, lose control on the ice, and crash; (b) wrote in his report that the truck was “traveling at an unsafe speed for the icy road conditions”; (c) turned on his emergency lights when he arrived on the scene at 3:43 p.m.; and (d) did not turn off his emergency lights earlier than 4:30 p.m.;
(19) Ali both (a) passed the collision Officer Weimer was working at approximately 3:53 p.m. (37 minutes before his collision with the Blakes) and (b) testified he is sure he saw Officer Weimer’s vehicle with its emergency lights on when he passed it;
*3 (20) Texas Department of Public Safety Officer Chad Matlock testified that he traveled to the site of Ali’s collision with the Blakes’ vehicle westbound on I-20 and recalled with “hundred percent” certainty that “the roads were icy”;
(21) Andrew Gambs (a certified EMT paramedic) testified he (a) was traveling eastbound on I-20 about three miles west of Ali’s collision with the Blakes’ vehicle when he heard about it on his radio; (b) went straight to the site (which took about 5 minutes); (c) was the first emergency responder on the scene; (d) slipped on ice on westbound I-20 when he was running to get a backboard 10-15 minutes after he arrived; (e) saw it was sleeting lightly when he arrived; and (f) perceived westbound I-20 to be very icy;
(22) Dylan Hand testified he (a) was driving a vehicle eastbound on I-20 near the site of Ali’s collision with the Blakes’ vehicle when it occurred; (b) believed the Werner Truck was traveling too fast for the weather conditions; (c) believed the conditions of the road were too icy for 18-wheelers; (d) stopped his vehicle to see if he could be of assistance; (e) perceived eastbound I-20 to be so icy that he could barely walk on it with tennis shoes; and (f) saw it was sleeting at the scene;
(23) Andy Irwin (Appellants’ accident-reconstruction expert) testified that (a) Ali drove the Werner Truck through freezing rain somewhere before his collision with the Blakes’ vehicle; (b) photographs of the Werner Truck taken after the collision show ice was caked up on the leading edges of the antennas and the mirrors and above the windshield; and (c) he believed the ice got there because the Werner Truck had been driven through freezing rain;
(24) James Wampler (a local tow truck driver) was driving between 10 and 15 miles per hour on I-20 that day due to the weather conditions;
(25) despite these conditions, Ali was driving his 18-wheeler at approximately 43 miles per hour at the time of his collision with the Blakes;
(26) Ali’s supervisor (who was in the truck with him) was asleep at the time of the collision;
(27) Werner knew its supervisor could not supervise Ali if he was asleep;
(28) “the roads were so icy” people “couldn’t drive very fast” or they would “go[ ] out of control”;
(29) if Ali “had followed the safety rule that dictates what a driver of an 18-wheeler is supposed to do once he hit icy roads”, then the Blakes would not have suffered their injuries;
(30) there were at least 10 truck stops at which Ali could have stopped between Midland and Odessa;
(31) it is “really important for the driver to monitor the outside air temperature … because we know once it drops below 32, that’s the condition that creates freezing water and therefore, freezing rain and black ice”;
(32) despite the existence of available devices to check for conditions giving rise to black ice (including OAT gauges and CB radios), Ali’s supervisor prohibited him from utilizing either device;
(33) “any person driving any kind of vehicle” should know that they are driving “into an area where the National Weather Service says that we’re going to have freezing rain accumulating into ice … and then issue an update … that changes it to freezing rain”;
(34) Werner had 13 truck driving schools that graduated approximately 5,000 students a year (and hired approximately 2,000 of those graduates);
*4 (35) federal regulations require states to provide pre-approved information manuals to applicants for commercial drivers’ licenses;
(36) Texas created such a manual;
(37) said manual is designed to promote safety and save lives;
(38) said manual includes section 2.6.2, entitled “Matching Speed”;
(39) section 2.6.2 instructs drivers to reduce their speed to a crawl when they encounter icy roads;
(40) a “crawl” in the trucking industry means between 10 and 15 miles per hour;
(41) the purpose of coming to a crawl is to stop at the first safe place;
(42) drivers have no discretion concerning the application of rule 2.6.2;
(43) Werner teaches drivers that they have the discretion whether to come to a crawl or stop in icy conditions unless “they feel that they’re unsafe”;
(44) Ali personally believed that 2.6.2 was “a very good recommendation” that drivers are “not required to follow”;
(45) it is “ludicrous” to not follow 2.6.2 because drivers should not “have to have a wreck before [they] find out that [they] shouldn’t have had a wreck”;
(46) Werner taught its truck driving students that if they felt unsafe, they should stop but if they did not feel unsafe, to keep going;
(47) Werner’s director of safety testified that even with low scores, Ali had “a commercial driver’s license from the State of Texas, so he could drive a truck by himself without anybody in it”;
(48) the head of safety’s foregoing interpretation could represent “a very dangerous mistake”;
(49) Werner’s director of safety was “not really involved” in issues relating to drivers’ uses of OAT gauges or CB radios and was unfamiliar with Werner’s practice of pairing student drivers with trainers on just-in-time (“JIT”) runs;
(50) drivers should use anything in their truck that helps them operate it safely;
(51) even if drivers match their speed to their road condition, they may still “need to reduce it slower”;
(52) Ali was “looking for spray coming from cars in front … I mean, if there’s spray coming from cars, it’s not icy”;
(53) Ali’s method is the number one method utilized by Werner’s drivers;
(54) Ali’s method for gauging whether the road was icy was flawed because drivers “cannot look at spray coming off a tire when there has been freezing rain and there’s been moisture in the air. There’s going to be a small, thin layer on top of solid ice and it’s even more slippery”;
(55) Werner did not convey any information about the Winter Storm Warning to its drivers because “it was a localized event”;
(56) the Winter Storm Warning was in effect for almost all areas of Midland and Odessa;
(57) despite these facts, Werner assigned Ali a JIT run on December 30, 2014 through parts of West Texas while that area was under a Winter Storm Warning;
(58) JIT runs have a one hundred percent on-time expectation;
(59) late delivery on a JIT run can result in discipline;
(60) four late loads can result in termination;
(61) Werner required Ali to drive the first shift from Dallas on that highway that day at that time because student drivers are not allowed to drive past midnight;
(62) Ali not only had not taken Werner’s “Winter Driving Training Module”, but he had to ask the Blakes’ counsel what Werner’s winter driving training module was even called to ensure it was not on a list of the trainings Werner provided him;
*5 (63) Ali’s truck collided with the Blakes’ vehicle during a Winter Storm Warning on black ice;
(64) the parties effectively agreed Ali was driving at least 43 miles per hour at the time of impact;
(65) Ali was traveling at approximately 50 miles per hour when the Blakes’ vehicle lost control and crossed the median;
(66) after impact, it looked as if the Blakes’ vehicle had been “cut in half”; and
(67) the Blakes suffered catastrophic and life-altering injuries as a result of the collision.
The jury was asked four liability questions, which yielded the following findings:
Question 1 Werner’s negligence acting through its employees other than Ali was a proximate cause of the injuries in question.
Question 2 Werner’s negligence acting through its employees other than Ali was a proximate cause of the injuries in question with respect to two specific actions: (1) supervising Ali, or (2) training Ali.
Question 3 Ali’s negligence was a proximate cause of the injuries in question.
Question 4 Salinas’s negligence was a proximate cause of the injuries in question.
The following three apportionment questions also were submitted in the charge:
Question 5
[the jury was instructed to respond to this question if it answered “Yes” to Questions 1, 2, 3, or 4 for more than one of those named below]
For each person you found caused or contributed to cause the injuries, find the percentage of responsibility attributable to each:
| Werner, acting through its employees other than Shiraz Ali | 70% |
| Shiraz Ali | 14% |
| Zaragoza “Trey” Salinas | 16% |
| Total | 100% |
Question 6
[the jury was instructed to respond to this question if it answered “Yes” to Questions 1, 3, or 4 for more than one of those named below]
For each person you found caused or contributed to cause the injuries, find the percentage of responsibility attributable to each:
| Werner, acting through its employees other than Shiraz Ali | 30% |
| Shiraz Ali | 32% |
| Zaragoza “Trey” Salinas | 38% |
| Total | 100% |
Question 7
[the jury was instructed to respond to this question if it answered “Yes” to Questions 3 or 4 for more than one of those named below]
For each person you found caused or contributed to cause the injuries, find the percentage of responsibility attributable to each:
| Shiraz Ali | 45% |
| Zaragoza “Trey” Salinas | 55% |
| Total | 100% |
Analysis
I. Ali’s Negligence
We begin our analysis by addressing Appellants’ first issue, in which they contend that the evidence is legally and factually insufficient to support the jury’s liability finding against Ali.
A. Standard of Review
When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder could do so and disregard contrary evidence unless a reasonable factfinder could not do so. Id. at 827. We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. Id. The factfinder is the only judge of witness credibility and the weight to give to testimony. Id. at 819.
*6 When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record (here, more than 10,000 pages), considering both the evidence in favor of, and contrary to, the challenged finding. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 615-16 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Maritime Overseas Corp., 971 S.W.2d at 407. The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Pascouet, 61 S.W.3d at 616.
B. Duty
Appellants first assert that the evidence is legally and factually insufficient to show Ali owed any duty to the Blakes. We disagree.
The threshold inquiry in a negligence case is duty and the existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. See Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017). Under this court’s precedent, Ali had a common law duty to operate the Werner Truck at a speed at which an ordinarily prudent person would operate it under the same or similar circumstances. See Fitzgerald v. Russ Mitchell Constructors, Inc., 423 S.W.2d 189, 191 (Tex. App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.); accord Golleher v. Herrera, 651 S.W.2d 329, 332-33 (Tex. App.—Amarillo 1983, no writ); Adams v. Morris, 584 S.W.2d 712, 717 (Tex. App.—Tyler 1979, no writ); Hokr v. Burgett, 489 S.W.2d 928, 930 (Tex. App.—Fort Worth 1973, no writ); Billingsley v. S. Pac. Co., 400 S.W.2d 789, 794 (Tex. App.—Tyler 1966, ref’d n.r.e.). The speed at which an ordinarily prudent person would drive under the same or similar circumstances may be below the speed limit. See Golleher, 651 S.W.2d at 332-33; Adams, 584 S.W.2d at 717; Hokr, 489 S.W.2d at 930; Fitzgerald, 423 S.W.2d at 191; Billingsley, 400 S.W.2d at 794.
Every individual has the duty to guard against foreseeable risks. See generally Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928) (“[T]he orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty.”). The Supreme Court of Texas has consistently held that foreseeability turns on the existence of a general danger, not awareness of the exact sequence of events that produces the harm. See Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d 553, 565 (Tex. 2015). “The general danger of driving is obvious to everyone.” Id.; see also Tex. Dep’t of Transp., Public Service Announcement (Nov. 2021), https://www.txdot.gov/inside-txdot/media-center/psas/end-streak.html (“This November 7, Texas marks 21 years of daily deaths on our roadways with more than 75,000 innocent lives lost to preventable fatal crashes. For the past several years, about 10 people have died every day in crashes in the state.”).
Appellants nonetheless suggest that Ali had no duty to anticipate that a passenger vehicle driving eastbound on I-20 might lose control of their vehicle (whether negligently or otherwise) under the conditions presented, cross the median, and obstruct Ali’s right of way while he was traveling at approximately 50 miles per hour under those same circumstances. Drivers’ excessive highway speed may foreseeably lead to a collision with another vehicle that enters the wrong lane of traffic. See Biggers v. Cont’l Bus Sys., Inc., 157 Tex. 351, 303 S.W.2d 359, 363 (1957). Ali was therefore duty-bound as a matter of law to operate the Werner Truck at a speed at which an ordinarily prudent person would operate it under the same or similar circumstances. Golleher, 651 S.W.2d at 332-33.1
*7 We reject Appellants’ attempt to reframe the question of law concerning Ali’s duty as a question concerning sufficiency because binding precedent dictates such a duty exists (even without the aforementioned particularized facts herein). We therefore reject Appellants’ argument that the evidence is legally and factually insufficient to show that Ali owed any duty to the Blakes.
C. Breach
Appellants next assert that there is legally and factually insufficient evidence to support a finding that Ali breached any duty. We disagree.
Ali testified that there was no ice anywhere on I-20 from the time he left Dallas until the time of the collision at issue and that if the roads were icy, he should have slowed to “a crawl” — 10 or 15 miles per hour or less — and stopped driving as soon as he could safely do so. Carlos Romay, a director of safety for Werner, testified that Ali should not drive through ice. Several witnesses testified that the stretch of roadway where Ali collided with the Blakes was “covered” in ice and the jury heard evidence of other contemporaneous collisions on that stretch of I-20.
Arthur Atkinson, the Blakes’ truck safety expert, further testified that a reasonably prudent truck driver in Ali’s situation would have (1) known that more likely than not he was driving on ice and (2) slowed to a crawl and exited the highway. Atkinson stated that slowing to “a crawl” means 10 to 15 miles per hour or slower, and no faster than 15 miles per hour. Ali was nonetheless traveling at three times that speed when the vehicle in which the Blakes were traveling lost control.
Although Appellants assert that Ali was driving well below the posted speed limit of 75 miles per hour, the speed at which an ordinarily prudent person would operate a vehicle under the same or similar circumstances may be below the speed limit. See Golleher, 651 S.W.2d at 332-33; Adams, 584 S.W.2d at 717; Hokr, 489 S.W.2d at 930; Fitzgerald, 423 S.W.2d at 191; Billingsley, 400 S.W.2d at 794. Evidence at trial showed that the Werner Truck was traveling at about 50 miles per hour when Ali hit the brakes and that Officer Vanderwilt issued a citation to a driver of a passenger vehicle for driving at an unsafe speed because the driver was driving 20 to 30 miles per hour on I-20 about 4.5 miles east of the location where Ali hit the Blakes’ vehicle. Given his speed under the circumstances, the fact that Ali was driving under the speed limit is irrelevant to our analysis. See Tex. Transp. Code Ann. § 545.351(b)(1) (stating that “[a]n operator … may not drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for actual potential hazards then existing”); id. § 545.351(c) (stating that “[a]n operator shall, consistent with Subsections (a) and (b), drive at an appropriate reduced speed if … a special hazard exists with regard to traffic, including … weather or highway conditions”).
Appellants also assert (1) Ali was driving within his lane of travel, on an open road, with the right of way, and in control of his vehicle; (2) when Ali realized that the vehicle in which the Blakes were traveling was out of control (two seconds before impact), Ali responded in a reasonable and prudent manner by braking and bringing the Werner Truck to a controlled stop; and (3) Ali never lost traction or experienced any diminished visibility. Even presuming for the sake of argument that each of these propositions is true, we nonetheless conclude that the trial evidence would enable reasonable and fair-minded people to find that (1) Ali did not operate the Werner Truck at a speed at which an ordinarily prudent person would operate it under the same or similar circumstances; (2) Ali did not operate the Werner Truck at a speed at which an ordinarily prudent commercial truck driver would operate it under the same or similar circumstances; (3) Ali was negligent in the operation of the Werner Truck; and (4) Ali was negligent in the operation of the Werner Truck at the time of the occurrence in question. See City of Keller, 168 S.W.3d at 823, 827; Golleher, 651 S.W.2d at 332-33; Adams, 584 S.W.2d at 717; Hokr, 489 S.W.2d at 930; Fitzgerald, 423 S.W.2d at 191; Billingsley, 400 S.W.2d at 794. Examining the entire record, considering and weighing both the evidence in favor of and contrary to each of these four findings, we conclude that none of these four findings is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Maritime Overseas Corp., 971 S.W.2d at 406-07; Golleher, 651 S.W.2d at 332-33; Adams, 584 S.W.2d at 717; Hokr, 489 S.W.2d at 930; Fitzgerald, 423 S.W.2d at 191; Billingsley, 400 S.W.2d at 794.
D. Causation
*8 Appellants also assert that the evidence is legally and factually insufficient to support a finding that Ali’s negligence proximately caused the injuries in question or the collision. In Question 3, the trial court asked the jury, “Was the negligence, if any, of Shiraz Ali in the operation of the Werner Truck on December 30, 2014, a proximate cause of the injuries in question?”2 The jury answered “yes”. Ali testified that Werner taught or trained him that “we know what the consequences are if a passenger vehicle loses control on ice in front of a 30- or 40-ton 18-wheeler going highway speeds.” Ali also agreed that he knows passenger vehicles are much more likely to lose control than an 18-wheeler on an icy road.
James Crawford, the Blakes’ accident-reconstruction expert, testified that if Ali had been operating the Werner Truck at 15 miles per hour and if Ali took the same actions by promptly pressing on the brakes as hard as Ali could, the collision with the Blakes never would have happened. The jury also saw Crawford’s animation showing that if the Werner Truck had been traveling 15 miles per hour when the Blakes’ vehicle crossed the westbound lanes of I-20, the Werner Truck would not have collided with the Blakes. Andy Irwin, Appellants’ accident-reconstruction expert, testified that the collision would not have occurred if the Werner Truck had been traveling at 15 miles per hour and in the same location on I-20 westbound at the time of the collision. Irwin testified that in this scenario, the Werner Truck would have come to a stop “before the crash happen[ed]” and that “had [Ali] been at 15 [miles per hour] and assuming no other changes to the stream of traffic, [Ali] doesn’t have the crash. That’s a mathematical fact.”
After considering the trial evidence in the light most favorable to the challenged jury finding, we conclude that the trial evidence would enable reasonable and fair-minded people to find that (1) Ali’s failure to operate the Werner Truck at a speed at which an ordinarily prudent commercial truck driver would operate it under the same or similar circumstances was a proximate cause of the occurrence and injuries in question; (2) Ali’s failure to operate the Werner Truck at a speed at which an ordinarily prudent person would operate it under the same or similar circumstances was a proximate cause of the occurrence and injuries in question; (3) Ali’s negligence was a substantial factor in bringing about the Blakes’ injuries and the collision, without which these injuries and this collision would not have occurred; and (4) Ali’s negligence was such that a commercial truck driver or a person using ordinary care would have foreseen that the collision or the Blakes’ injuries (or some similar collision or injury) might reasonably result therefrom under the circumstances. See City of Keller, 168 S.W.3d at 823, 827; Lofton v. Tex. Brine Corp., 777 S.W.2d 384, 387 (Tex. 1989); Biggers, 303 S.W.2d at 363-67; Villarreal v. Zouzalik, 515 S.W.2d 742, 745 (Tex. App.—San Antonio 1974, no writ). Examining the entire record, considering and weighing both the evidence in favor of, and contrary to, each of these four findings, we conclude that each of these four findings is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Maritime Overseas Corp., 971 S.W.2d at 406-07; Lofton, 777 S.W.2d at 387; Villarreal, 515 S.W.2d at 745; Biggers, 303 S.W.2d at 363-67.
*9 We conclude that the trial evidence is legally and factually sufficient to support a finding that Ali’s negligence in operating the Werner Truck was a proximate cause of the collision at issue and the Blakes’ injuries. We overrule Appellants’ first issue.
II. Jury Charge Issues
In their second issue, Appellants assert numerous charge errors. Specifically, they contend “the charge’s many defects included directing the jury to consider numerous invalid legal theories, omitting any question concerning whether Ali or Werner caused this accident, and omitting a requested sudden emergency instruction applicable to circumstances just like these.” We disagree.
A. Casteel Charge Errors
Appellants first argue that the submission of Jury Questions 1, 2, 3, 5, 6, and 7 constitutes harmful error requiring reversal under Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000), because the liability questions submitted in Questions 1,3 2,4 and 35 commingled multiple theories of liability and allowed the jury to return a single answer regarding liability when most or all of the theories advanced by the Blakes were legally invalid. Appellants argue that this submission also affected the apportionment questions submitted to the jury in Questions 5, 6, and 7, thereby causing harmful error. In response, the Blakes argue (in relevant part) that Appellants did not preserve their Casteel complaint. We agree with the Blakes.
To preserve a Casteel complaint, the complaining party must make a timely and specific objection plainly informing the trial court of the specific complaint. See Tex. R. Civ. P. 274; Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014) (“As a general rule, preservation requires (1) a timely objection ‘stating the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context,’ and (2) a ruling.”) (quoting Tex. R. App. P. 33.1); Thota v. Young, 366 S.W.3d 678, 691 (Tex. 2012) (“In every case in which we have considered Casteel’s presumed harm analysis, including Casteel itself, we have emphasized the need for the complaining party to make a timely and specific objection to preserve complaints of error in broad-form submission.”). A party must “clearly designate the alleged error and specifically explain the basis of its complaint in its objection to the charge.” Koukhtiev v. Hiner, No. 01-13-00356-CV, 2014 WL 4952430, at *3 (Tex. App.—Houston [1st Dist.] Oct. 2, 2014, no pet.) (mem. op.) (quoting Hamid v. Lexus, 369 S.W.3d 291, 296 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (quoting Carousel’s Creamery, L.L.C. v. Marble Slab Creamery, Inc., 134 S.W.3d 385, 404-05 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d))). “The trial court is sufficiently aware of the complaint if the objection clearly designates the alleged error and specifically explains the basis for the complaint such that a reviewing court may conclude the trial court understood the ground of the complaint and deliberately chose to overrule it.” Lawrence Marshall Dealerships v. Meltzer, No. 14-10-00189-CV, 2011 WL 2650940, at *3 (Tex. App.—Houston [14th Dist.] July 7, 2011, no pet.) (mem. op.). “Objections to the charge and requests for instructions must comport with the arguments made on appeal.” Saenz-Guerrero v. Gardner, 587 S.W.3d 191, 194 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Hamid, 369 S.W.3d at 296.
*10 Here, Appellants did not specify any invalid theory that was commingled with a valid theory; instead, they simply objected to submitting Questions 1 and 2 in broad-form, arguing such a submission “is a Casteel problem” because (1) both questions submit Werner’s negligence without specifying which acts or omissions allegedly constituted negligence; (2) both questions generally combine valid and invalid theories; (3) Appellees alleged numerous possible actions by Werner that they assert may constitute negligence; and (4) it is impossible to tell from the jury’s affirmative answer which of Werner’s acts or omissions constituted negligence, thereby making it impossible to challenge the sufficiency of the evidence and preventing the appeals court from determining the acts or omissions on which the jury based an affirmative finding. This objection, however, was insufficiently specific to place the trial court on notice as to which legal theories should have been subject to a granulated jury charge. See Burbage, 447 S.W.3d at 256; Thota, 366 S.W.3d at 691; In re A.V., 113 S.W.3d 355, 363 (Tex. 2003) (holding Casteel complaint not preserved because objection did not “put [the] trial court on notice to submit a granulated question”); Casteel, 22 S.W.3d at 387-88; Martinez v. State Off. of Risk Mgmt., No. 04-10-00046-CV, 2011 WL 193468, at *2 (Tex. App.—San Antonio Jan. 19, 2011, no pet.) (mem. op.).6 Additionally, Appellants’ “objection neither mentioned the specific problem [they] complain[ ] about on appeal … nor urged the solution [they] now claim[ ] to require[ ].” Bishop v. Miller, 412 S.W.3d 758, 782 (Tex. App.—Houston [14th Dist.] 2013, no pet.). As a result, Appellants’ complaints under Casteel with respect to Questions 1 and 2 were not properly preserved. Tex. R. Civ. P. 274; Burbage, 447 S.W.3d at 256 (quoting Tex. R. App. P. 33.1); Thota, 366 S.W.3d at 691; Saenz-Guerrero, 587 S.W.3d at 194; Bishop, 412 S.W.3d at 782; Hamid, 369 S.W.3d at 296; Lawrence Marshall Dealerships, 2011 WL 2650940, at *3.
*11 Similarly, Appellants also objected that Question 3 presented “a Casteel problem” because (1) the parties would not know the conduct on which the jury found negligence; (2) the question is “asking about the entire day”; and (3) the question “combines potentially valid legal theories with definitely invalid legal theories that have not been recognized as causes of action by the Texas Supreme Court.” Appellants also objected to the submission of Question 5 and argued there was a “Casteel problem” because (1) the jury would be permitted to “consider valid and invalid legal theories for which the defendants owe no duty as well as for which there’s no evidence to support any finding of liability”; and (2) the parties would not know the evidence on which the jury’s affirmative answers were based. Again, these objections were insufficiently specific to inform the trial court as to which theories should have been presented in a granulated jury charge. In re A.V., 113 S.W.3d at 363; Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 157 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Roberts v. Whitfill, 191 S.W.3d 348, 357 (Tex. App.—Waco 2006, no pet.); see also Lemos v. Montez, 680 S.W.2d 798, 801 (Tex. 1984) (explaining Texas progressed from separate, granulated charge issues to the broad-form charge because “after sixty years, it became apparent that Texas courts, while escaping from the voluminous instructions to jurors, had substituted, in the place of instructions, a jury system that was overloaded with granular issues to the point that jury trials were again ineffective.”).7 As a result, Appellants’ complaints under Casteel with respect to Questions 3 and 5 were not properly preserved. See Tex. R. Civ. P. 274; Burbage, 447 S.W.3d at 256 (quoting Tex. R. App. P. 33.1); Thota, 366 S.W.3d at 691; Saenz-Guerrero, 587 S.W.3d at 194; Hamid, 369 S.W.3d at 296; Lawrence Marshall Dealerships, 2011 WL 2650940, at *3.
Appellants neither objected to Question 6 based on Casteel nor made any arguments that could be liberally construed as raising a Casteel complaint. Therefore, Appellants waived any Casteel complaint concerning Question 6. See Tex. R. App. P. 33.1.
Finally, Appellants objected to the submission of Question 7, asserting that “asking the jury to consider all of the conduct of Mr. Ali” on the day of the collision would create Casteel problems because the question would include “conduct for which the Supreme Court [of Texas] has not established any duty exists and in which were not and could not have been proximately caused of either the occurrence, which is the collision later in that day, or the injuries.” Similar to Questions 1 through 3 and 5, this objection fails to identify the specific issues that should have been submitted to the jury in granulated questions and does not preserve this issue for appeal. In re A.V., 113 S.W.3d at 363; Saenz-Guerrero, 587 S.W.3d at 194; Duradril, L.L.C., 516 S.W.3d at 157; Hamid, 369 S.W.3d at 296; Lawrence Marshall Dealerships, 2011 WL 2650940, at *3; Roberts, 191 S.W.3d at 357.
We conclude Appellants have not preserved their Casteel complaints. See Benge v. Williams, 548 S.W.3d 466, 475 (Tex. 2018); Tex. Comm’n on Human Rights v. Morrison, 381 S.W.3d 533, 535-37 (Tex. 2012) (per curiam).
B. Omitted Element
We next turn to Appellants’ argument that it was reversible error to ask the jury in Questions 1 through 48 to determine whether Werner, Ali, and Salinas proximately caused the Blakes’ injuries (and in Questions 5 through 7 to assign responsibility to those who caused or contributed to said injuries) instead of asking whether they proximately caused the occurrence in question. Appellants argue that finding Werner, Ali, and Salinas proximately caused the occurrence is a necessary element of the Blakes’ negligence claims, and the failure to secure a finding on each element of the Blakes’ negligence claims requires the rendition of a take-nothing judgment in favor of Appellants or a new trial. We disagree.
*12 Texas Rule of Civil Procedure 278 requires the trial court to submit requested questions to the jury if those questions are supported by the pleadings and the evidence. Saenz-Guerrero, 587 S.W.3d at 195; see also Tex. R. Civ. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). Otherwise, the trial court has broad discretion in submitting jury questions so long as the charge fairly places the disputed issues before the jury. Saenz-Guerrero, 587 S.W.3d at 195. The trial court abuses this discretion only when it acts without reference to any guiding principle. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); Saenz-Guerrero, 587 S.W.3d at 195. To prevail on a negligence cause of action, a plaintiff must establish the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
Appellants contend that “it was incumbent on [the Blakes] to obtain findings that Appellants’ negligence caused this accident to support their claims.” In support of their contention, Appellants quote JLG Trucking, LLC v. Garza for the proposition that: “Establishing causation in a personal injury case requires a plaintiff to ‘prove that the conduct of the defendant caused an event and that this event caused the plaintiff to suffer compensable injuries.’ ” 466 S.W.3d 157, 162 (Tex. 2015) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995)). However, the supreme court has never held that a plaintiff must secure a specific finding that a defendant’s conduct caused the collision and that the collision caused the plaintiff’s injuries. See id. In fact, JLG Trucking neither addressed an omitted element issue nor involved a jury charge issue; therefore, it is readily distinguished. See id. at 159-66.
Instead, the question addressed was whether the trial court erroneously excluded evidence on relevance grounds. Id. at 161-63. There, the plaintiff was involved in two car collisions a few months apart. Id. at 159. After the second one, the plaintiff sued the opposing driver in the first and alleged that it caused her injuries. Id. The defendant sought to present two alternative defensive theories: (1) the defendant presented expert testimony that the plaintiff’s injuries were degenerative and not related to the collision and (2) the defendant claimed the second collision caused her injuries. Id. The trial court excluded all evidence of the second collision on relevance grounds. Id. The supreme court held that the trial court abused its discretion by excluding evidence of the second accident as irrelevant. Id. at 162-63. It determined “that evidence of the second accident is relevant to the causation element of [the plaintiff]’s negligence claim.” Id. at 162. The Supreme Court of Texas concluded that the exclusion of the second collision curtailed the defendant’s ability to probe the plaintiff’s expert’s conclusions about causation by asking him to explain why he discounted the second collision as an alternative cause. Id. at 162-63. We conclude that JLG Trucking provides no support for Appellants’ argument.
C. Injury versus Occurrence
We also conclude that the proportionate responsibility statute set forth in chapter 33 of the Civil Practice and Remedies Code supports the submission of the jury questions using the word “injuries” instead of “the occurrence in question.” The plain language of chapter 33 provides that the factfinder must apportion responsibility between persons who contributed to a harm for which a recovery is sought:
*13 The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person’s causing or contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these: (1) each claimant; (2) each defendant; (3) each settling person; and (4) each responsible third party who has been designated under Section 33.004.
Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a). Section 33.011(4) directs the factfinder to assign responsibility to each person who in any way causes (or contributes to cause) personal injury or death. See id. § 33.011(4); Nabors Well Servs., Ltd., 456 S.W.3d at 561-62. As the supreme court stated in Nabors, “sections 33.003(a) and 33.011(4) focus the fact-finder on assigning responsibility for the ‘harm for which recovery of damages is sought’ — two examples of which are ‘personal injury’ and ‘death’ — and not strictly for the underlying occurrence, such as a car accident.” Nabors, 456 S.W.3d at 562 (quoting Tex. Civ. Prac. & Rem. Code Ann. §§ 33.003(a), 33.011(4)). “This distinction recognizes plaintiffs do not sue simply because they were involved in a car accident; they sue because they suffered damages for which they have not been compensated.” Id.
The supreme court noted that although the facts of an occurrence shape the narrative of the case and contribute to the factfinder’s apportionment of responsibility, the proportionate-responsibility statute specifies that the apportionment should ultimately be based on responsibility for the damages suffered — personal injury and death; so “the question is not simply who caused the car accident, but who caused the plaintiff’s injuries.” Id. The court reasoned that the “proportionate-responsibility statute calls for an apportionment of fault for ‘personal injuries’ and ‘death’ rather than for the underlying occurrence that introduced a sequence of events in which the end result is potentially influenced” by whether a plaintiff, defendant, settling person, or responsible third party acted unreasonably or broke the law. Id. at 563. Although the Nabors case involved plaintiffs’ non-occurrence-causing but injury-causing conduct (failure to wear a seatbelt) under the proportionate-responsibility statute, nothing in Nabors limits the supreme court’s holding to situations in which a plaintiff’s conduct caused the injury but did not cause the occurrence. As in Nabors, the present case involves proportionate responsibility questions.
Additionally, the comment to the Texas Pattern Jury Charge on negligence provides no support for Appellants’ contention that Jury Questions 1 through 4 should have asked the jury to determine whether Werner, Ali, and Salinas proximately caused Appellees’ injuries (and Questions 5 through 7 to assign responsibility to those who caused or contributed to cause the injuries) instead of asking whether they proximately caused the occurrence in question. The comment regarding the use of “injury” or “occurrence” provides in pertinent part:
“Injury” should be used in this question, as well as in PJC 4.3, if the issue of the responsibility of more than one person is submitted to the jury under the proportionate responsibility statute, Tex. Civ. Prac. & Rem. Code §§ 33.001-.017. For suits filed after September 1, 1987, section 33.003 requires a finding of “percentage of responsibility” in pure negligence cases as well as in “mixed” cases involving claims of negligence and strict liability and/or warranty. The statute defines “percentage of responsibility” in terms of “causing or contributing to cause in any way … the personal injury, property damage, death, or other harm for which recovery of damages is sought.” Tex. Civ. Prac. & Rem. Code § 33.011(4) (emphasis added); Nabors Well Services, Ltd. v. Romero, 456 S.W.3d 553, 563 (Tex. 2015) (holding that the proportionate responsibility statute requires fact finders to consider relevant evidence of a plaintiff’s preoccurrence, injury-causing conduct, overruling prior case law prohibiting evidence of plaintiff’s failure to wear a seatbelt).
*14 In cases with no allegations of injury-causing negligence by a plaintiff, it may be appropriate to use “occurrence” in this question and in PJC 4.3. However, the concerns expressed in Nabors should be considered carefully.
In a case involving a death, the word “death” may be used instead of “injury.”
Comm. On Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: General Negligence, Intentional Personal Torts & Workers’ Compensation PJC 4.1, at 54-55 (2016) (emphasis in original).
The proportionate-responsibility statute therefore requires an apportionment of fault for personal injuries. Although cases without allegations of injury-causing negligence may warrant the use of “occurrence” (instead of “injury”) in a jury question, there is no such instruction. Instead, the comment advises careful consideration of Nabors (which does not limit the use of the word “injury” or “injuries” in a charge question to situations in which a plaintiff’s conduct was injury-causing but not occurrence-causing). Accordingly, we overrule Appellants’ challenge to the use of “injuries” in the submitted jury questions.
D. Sudden Emergency Instruction
Appellants contend the trial court abused its discretion by refusing to submit a sudden emergency instruction in the jury charge and that this omission probably caused the jury to render an improper verdict. Appellants argue the jury erroneously “was not told it could entirely absolve Ali of liability if it found that, after the emergency caused by Salinas’s conduct arose, Ali acted as a person of ordinary prudence would have under those circumstances.” The trial court refused to submit the following proposed sudden emergency instruction:
If a person is confronted by an “emergency” arising suddenly and unexpectedly, which was not proximately caused by any negligence on his part and which, to a reasonable person, requires immediate action without time for deliberation, his conduct in such an emergency is not negligence or failure to use ordinary care if, after such emergency arises, he acts as a person of ordinary prudence would have acted under the same or similar circumstances.
The trial court, however, agreed to submit an unavoidable accident instruction in the charge stating: “An occurrence may be an ‘unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to the occurrence.”
A trial court is required to give “such instructions and definitions as shall be proper to enable the jury to render a verdict.” Tex. R. Civ. P. 277. “An instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence.” Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855-56 (Tex. 2009). A trial court has “great latitude and considerable discretion” to determine necessary and proper jury instructions. La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998) (per curiam). When a trial court refuses to submit a requested instruction, the issue on appeal is whether the instruction was reasonably necessary to enable the jury to render a proper verdict. Oldham v. Thomas, 864 S.W.2d 121, 126 (Tex. App.—Houston [14th Dist.] 1993), rev’d in part on other grounds, 895 S.W.2d 352 (Tex. 1995).
*15 Appellate courts review claims of charge error for an abuse of discretion. See Hawley, 284 S.W.3d at 856. A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam) (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)); see also Hawley, 284 S.W.3d at 856. A judgment will not be reversed for charge error unless the error was harmful because it probably caused the rendition of an improper verdict or probably prevented appellants from properly presenting the case to the court of appeals. Hawley, 284 S.W.3d at 856; see also Tex. R. App. P. 44.1(a).
Appellants assert that the trial court abused its discretion when it refused to submit an instruction on their inferential rebuttal defense of sudden emergency. Inferential rebuttal defenses operate to rebut an essential element of the plaintiff’s case via other facts. See Dillard v. Tex. Elec. Co-op., 157 S.W.3d 429, 430, 432 (Tex. 2005). When a defendant blames an occurrence on someone or something other than himself, the Texas Pattern Jury Charges provide multiple alternatives for inferential rebuttal instructions. Id. at 432. Among them is an unavoidable accident instruction if the occurrence is not caused by the negligence of any party to the occurrence; there is also a sudden emergency instruction if the occurrence (1) is caused by something other than the defendant’s negligence and (2) arises suddenly and unexpectedly. See id. The purpose of these instructions is to advise the jury that it does not have to place blame on a party to the suit if the evidence shows that conditions beyond the party’s control caused the accident in question or that the conduct of some person not a party to the litigation caused it. Id.
Although the trial court submitted an unavoidable accident instruction, Appellants argue that they were entitled to a separate instruction on their sudden emergency inferential rebuttal defense because there is evidence the accident was caused by an emergency. For an instruction on sudden emergency to be proper, the evidence must support the necessary elements of the sudden emergency defense, namely, that (1) an emergency arose suddenly and unexpectedly; (2) the emergency was not proximately caused by the negligent act or omission of the person whose conduct is under inquiry; and (3) the conduct (which would constitute negligence under ordinary circumstances) must have occurred after the emergency arose without giving the person time to deliberate. See Oldham, 864 S.W.2d at 126; see also Jordan v. Sava, Inc., 222 S.W.3d 840, 847 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Here, the negligent acts and omissions of Appellants are under inquiry; therefore, Appellants were not entitled to a sudden emergency inferential rebuttal and the trial court did not abuse its discretion when it refused to provide one.
Assuming arguendo that there is some evidence to support the necessary elements of the sudden emergency defense, we nonetheless conclude that any alleged error in not submitting this inferential rebuttal defense was harmless. As we have stated, the trial court submitted an instruction on the unavoidable accident inferential rebuttal defense. The doctrine of sudden emergency is subsumed by the broader doctrine of unavoidable accident. Reinhart v. Young, 906 S.W.2d 471, 474 (Tex. 1995); Gregory v. Chohan, 615 S.W.3d 277, 300 (Tex. App.—Dallas 2020, pet. granted). Further, a sudden emergency instruction “reiterates much of the unavoidable accident instruction.” Reinhart, 906 S.W.2d at 474. Having reviewed the record, we conclude the trial court’s refusal to submit Appellants’ proposed sudden emergency instruction did not amount to such a denial of their rights as to have caused the rendition of an improper judgment. Accordingly, we overrule Appellants’ complaint that the trial court improperly refused the sudden emergency instruction and overrule Appellants’ second issue with regard to the jury charge.
E. Objections to Question 3
*16 At the charge conference, the trial court overruled various objections by Appellants to Question 3, including the following: (1) the trial court should change each reference in Question 3 from “commercial truck driver” to “person”; and (2) the trial court should delete “on December 30, 2014” in Question 3 and replace it with “at the time of the occurrence in question.” We need not address whether the trial court erred in overruling either of these objections because (as stated above) the trial evidence is legally and factually sufficient to support a finding that Ali breached his negligence duty regardless of whether the trial court erred in overruling either of these objections. See Tex. R. App. P. 47.1.
We overrule Appellants’ second issue.
III. Werner’s Negligence
In their third issue, Appellants make several arguments. They contend that (1) Texas does not recognize direct liability claims against employers who admit respondeat superior liability; (2) Werner does not owe the duties claimed by the Blakes; (3) there is insufficient evidence to support a finding that Werner breached any duty it may have owed to the Blakes; and (4) there is insufficient evidence to support a finding that Werner’s actions were the proximate cause of the accident.
A. The “respondeat superior admission rule” has not been recognized in this District and even if it had been, Appellees’ gross negligence claims preclude its application.
We begin by addressing Werner’s contention that (1) it is not liable for any asserted direct liability claims because it stipulated at trial that it was liable under a theory of respondeat superior, and (2) “there is no legal reason to allow” Texas plaintiffs to proceed with both direct liability claims and respondeat superior claims against an employer. At the trial court, Werner moved for directed verdict based (in relevant part) upon the alleged absence of evidence capable of supporting “the submission in this case of a direct liability claim against Werner because here the fact that Mr. Ali was in the course and scope of his employment as a driver for Werner is not disputed.” Despite asking this Court to reverse the trial court’s over $100 million judgment based on the so-called “respondeat superior admission rule” (which was not in effect in this District at the time of the trial court’s ruling), Werner materially misstates the applicable law.
Under this [respondeat superior admission] rule, courts dismiss direct negligence claims (like Plaintiff’s claims for negligent hiring, retention, supervision, and control) before they reach the jury if “no viable gross negligence claims remain and the defendant employer does not dispute the applicability of vicarious liability.”
Cristo v. C.R. England, Inc., No. 5:18-CV-1344-DAE, 2021 WL 801340, at *4 (W.D. Tex. Jan. 7, 2021) (emphasis added) (quoting Ochoa v. Mercer Transp. Co., No. 5:17-CV-1005-OLG, 2018 WL 7505640, at *3 (W.D. Tex. Dec. 10, 2018)); accord Sanchez v. Transportes Internacionales Tamaulipecos S.A de C.V., No. 7:16-CV-354, 2017 WL 3671089, at *2 (S.D. Tex. July 20, 2017) (“[C]ase law … instructs that where a plaintiff alleges ordinary (rather than gross) negligence, and the employer stipulates to its vicarious liability for its employee’s negligence, a respondeat superior claim and the type of direct negligence claims asserted here are ‘mutually exclusive’ means of recovering from the employer.”) (emphasis added); Arrington’s Estate v. Fields, 578 S.W.2d 173, 178-79 (Tex. App.—Tyler 1979, writ ref’d n.r.e.) (“The owner of a vehicle, charged with gross negligence in the entrustment of a vehicle, may not preclude proof thereof by admitting or stipulating agency on the part of the driver or that the driver was within the course and scope of employment.”); Hines v. Nelson, 547 S.W.2d 378, 385 (Tex. App.—Tyler 1977, no writ) (“In cases involving allegations of ordinary negligence against the driver and gross negligence against the owner for entrusting his vehicle to a reckless or incompetent driver, we feel there would be a separate ground for damages against the owner in the form of exemplary damages.”).9 Werner’s brief even cites to a case that directly contradicts its assertion that there is “no legal reason to allow both claims to proceed.” See Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App.—Dallas 2002, pet. denied) (“Where only ordinary negligence is alleged, the case law supports appellees’ contention that negligent hiring or negligent entrustment and respondeat superior are mutually exclusive modes of recovery …. Where the plaintiff has alleged ordinary negligence against the driver and gross negligence against the owner for entrusting his vehicle to a reckless or incompetent driver, the negligent entrustment cause of action would be an independent and separate ground of recovery against the owner for exemplary damages …. West stipulated that Rieve was acting within the scope of his employment. Accordingly, Central West’s liability for ordinary negligence was established under the doctrine of respondeat superior. However, the Rosells alleged gross negligence against Central West, entitling them to questions concerning Central West’s negligent entrustment, hiring, supervision, and retention.”) (emphases added).
*17 Here, the Blakes alleged that Werner was liable based upon (inter alia) a theory of gross negligence; such allegations entitle Texas plaintiffs to seek exemplary damages, a theory that was presented to the jury. See generally Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a)(3). Under the circumstances, the Blakes’ gross negligence claim was viable at all relevant times even if it was ultimately rejected by the jury (and Werner failed to contend otherwise on appeal).10 As a result, this “rule” would not apply even if we chose to adopt it and apply it retroactively without prior notice to litigants. Under the circumstances, this result maintains the uniformity of this court’s jurisprudence. See Adams Leasing Co. v. Knighton, 456 S.W.2d 574, 576 (Tex. App.—Houston [14th Dist.] 1970, no writ) (“Nor may a defendant charged with gross negligence in the entrustment of a vehicle preclude proof thereof by stipulating agency on the part of the person to whom such vehicle is entrusted.”); see also Tex. R. App. P. 41.2(c) (authorizing en banc consideration “to secure or maintain uniformity of the court’s decisions”).
Despite the absence of any such argument in Appellants’ briefs, our dissenting colleague, Justice Wilson, insists that we must hold “the trial court reversibly erred in denying Werner’s motion for directed verdict” based on the so-called “respondeat superior admission rule”. Werner Enterprises, Inc. v. Blake, No. 14-18-00967-CV, 2021 WL 3164005, at *13 (Tex. App.—Houston [14th Dist.] July 27, 2021, no pet.) (Wilson, J., dissenting). This conclusion evidences a fundamental misunderstanding concerning directed verdicts and our standard of review on appeal. See Eurecat US, Inc. v. Marklund, 527 S.W.3d 367, 387 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“A directed verdict is appropriate when the evidence is such that no other verdict can be rendered and the moving party is entitled, as a matter of law, to judgment.”) (citing Tanglewood Homes Ass’n Inc. v. Feldman, 436 S.W.3d 48, 66 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)); see also Weidner v. Sanchez, 14 S.W.3d 353, 366 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (“We review the denial of a motion for a directed verdict by a legal sufficiency or no evidence standard of review.”) (citing McFarland v. Sanders, 932 S.W.2d 640, 643 (Tex. App.—Tyler 1996, no writ)).
When reviewing a ‘no evidence’ point of error, we consider only the evidence and inferences that support the challenged finding and disregard all evidence and inferences to the contrary. See Weidner, 14 S.W.3d at 373 (citing ACS Invs., Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997)). A no-evidence point will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Remaley v. TA Operating LLC, 561 S.W.3d 675, 678 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). None of these standards are met under the facts of this case; instead, Justice Wilson insists we must overturn the jury’s verdict based on the trial court’s implicitly erroneous admission of evidence that tended to prove the Blakes’ allegations concerning gross negligence and negligent supervision. There is no precedent supporting Justice Wilson’s analysis precisely because it is not the law.
*18 Evidentiary rulings such as the one at issue are committed to the trial court’s sound discretion. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). The well-established test for abuse of discretion is “whether the court acted without reference to any guiding rules and principles.” In re Nat’l Lloyds Ins. Co., 507 S.W.3d 219, 226 (Tex. 2016) (orig. proceeding) (per curiam) (citing Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985))); Clear Lake City Water Auth. v. Salazar, 781 S.W.2d 347, 348-49 (Tex. App.—Houston [14th Dist.] 1989, orig. proceeding) (citing Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (Tex. Comm. App. 1939, opinion adopted)). Neither Werner nor Justice Wilson cite any precedent for the proposition that a trial court can abuse its discretion by admitting evidence contrary to a judicially created “rule” that was not adopted in the relevant jurisdiction at the time of trial. Without such a “rule” in effect, the trial court did not act “without reference to any guiding rules and principles” when it admitted evidence that tended to prove the Blakes’ allegations. See K-Mart Corp., 24 S.W.3d at 360.
Therefore, Justice Wilson’s conclusion that the trial court erred when it denied Werner’s motion for directed verdict is correct only if (1) the facts are legally insufficient to support the Blakes’ derivative claims or (2) there is no evidence supporting those claims. See Weidner, 14 S.W.3d at 373; see also Caver v. Clayton, 618 S.W.3d 895, 899 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (“In appealing the denial of a motion for directed verdict and a motion for judgment notwithstanding the verdict, Son-in-Law in effect challenges the legal sufficiency of the evidence.”) (citing Fein v. R.P.H., Inc., 68 S.W.3d 260, 265 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)); and id. (“The test for legal sufficiency is the same for summary judgments, directed verdicts, judgments notwithstanding the verdict, and appellate no-evidence review.”) (citing City of Keller, 168 S.W.3d at 823). Based on our conclusion that the Blakes’ evidence is legally sufficient to support the jury’s verdict, we reject Justice Wilson’s attempt to rewrite our clearly established jurisprudence concerning appellate review of denied directed verdicts.
B. The Blakes’ prevail on their direct liability claims.
After rejecting the retroactive applicability of the “respondeat superior admission rule”, we next consider Appellants’ assertion that the Blakes’ direct liability theories submitted in Questions 1 and 2 against Werner fail because (1) Werner did not owe the Blakes a duty; (2) Werner did not breach a duty it may have owed the Blakes; and (3) Werner’s actions did not proximately cause the accident. In their various complaints, Appellants challenge the legal and factual sufficiency of the evidence, which we review as follows.
When reviewing a challenge to the legal sufficiency of the evidence, we view the evidence presented at trial in the light most favorable to the verdict and indulge every reasonable inference therefrom in the verdict’s favor. See City of Keller, 168 S.W.3d at 822 (emphasis added); see also Small v. McMaster, 352 S.W.3d 280, 283 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). We credit evidence in support of the judgment if reasonable jurors could do so and disregard contrary evidence unless reasonable jurors could not do so. City of Keller, 168 S.W.3d at 822; Small, 352 S.W.3d at 283. If the evidence falls within the zone of reasonable disagreement, we will not substitute our judgment for the factfinder’s. City of Keller, 168 S.W.3d at 822. Simply stated, we analyze whether the evidence at trial would have enabled reasonable and fair-minded people to reach the verdict that is under review. Id. at 827. “If there is more than a scintilla of evidence to support the finding, the claim is sufficient as a matter of law, and any challenges merely go the weight of the evidence.” Weidner, 14 S.W.3d at 373 (citing Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993)). “There is some evidence when the proof supplies a reasonable basis upon which reasonable minds could reach different conclusions about the existence of a vital fact.” Id. (citing Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992) (per curiam)).
*19 When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Maritime Overseas Corp., 971 S.W.2d at 406-07. After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Pascouet, 61 S.W.3d at 615-16. We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Maritime Overseas Corp., 971 S.W.2d at 407. The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Pascouet, 61 S.W.3d at 616.
1. Negligence Liability Finding in Question 1
We begin by addressing Appellants’ arguments assailing the jury’s negligence finding in Question 1, which provided as follows:
Question 1
Was the negligence, if any, of Werner acting through its employees other than Shiraz Ali a proximate cause of the injuries in question?
In answering this question, do not consider Werner’s negligence, if any, in training or supervising Shiraz Ali[.]
“Negligence,” when used with respect to the conduct of Werner, means failure to use ordinary care, that is, failing to do that which a trucking company of ordinary prudence would have done under the same or similar circumstances or doing that which a trucking company of ordinary prudence would not have done under the same or similar circumstances[.]
“Ordinary care,” when used with respect to the conduct of Werner, means that degree of care that would be used by a trucking company of ordinary prudence under the same or similar circumstances[.]
“Proximate cause,” when used with respect to the conduct of Werner, means a cause that was a substantial factor in bringing about an injury, and without which cause such injury would not have occurred[.] In order to be a proximate cause, the act or omission complained of must be such that a trucking company using ordinary care would have foreseen that the injury, or some similar injury, might reasonably result therefrom[.] There may be more than one proximate cause of an injury.
Answer “yes” or “no”
a. Duty
Appellants first contend that the jury’s liability finding against Werner cannot stand because it did not owe the Blakes a duty. The threshold inquiry in a negligence case is duty, and the existence of duty is a question of law the court determines from the facts surrounding the occurrence in question. Pagayon, 536 S.W.3d at 503; see Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999) (“Whether a legal duty exists is a threshold question of law for the court to decide from the facts surrounding the occurrence in question.”). When a duty has not been recognized in particular circumstances, the question is whether one should be recognized. Pagayon, 536 S.W.3d at 503. We must therefore determine whether Werner owed the Blakes a duty. See Southcross Energy Partners GP, LLC v. Gonzalez, 625 S.W.3d 869, 876 (Tex. App.—San Antonio 2021, no pet.) (“When courts have not yet addressed whether a duty exists under the facts surrounding the occurrence in question, courts must address whether a duty should be recognized by weighing public policy considerations.”).
The supreme court has made clear that special relationships “sometimes give rise to a duty to aid or protect others” and that “[e]mployment is such a relationship.” Pagayon, 536 S.W.3d at 504. There is no dispute that Ali was employed and trained by Werner. Therefore, we proceed to analyze whether Werner owed the Blakes a duty via the risk-utility test. See generally HNMC, Inc. v. Chan, 637 S.W.3d 919, 930 (Tex. App.—Houston [14th Dist.] 2021, pet. filed) (en banc) (citing Pagayon, 536 S.W.3d at 503-04; Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983) (“[F]actors which should be considered in determining whether the law should impose a duty are the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury and consequences of placing that burden on the employer.”)); see also Read v. Scott Fetzer Co., 990 S.W.2d 732, 736 (Tex. 1998) (identifying the factors of the risk-utility test).
i. Risk
*20 Under the circumstances, the risk was astonishingly high that a newly trained 18-wheeler driver who was not trained to drive in winter weather would cause serious death or injury if confronted with a traffic scenario requiring quick reactions while travelling at approximately 50 miles per hour on a Texas highway with black ice, freezing rain, and freezing temperatures during a National Weather Service Winter Storm Warning, particularly when the driver (1) did not have (a) information from Werner regarding the conditions on his anticipated or known route, or (b) access to readily acquirable devices that facilitated the detection of conditions giving rise to black ice (like a CB radio or OAT gauge); (2) was considered a student driver with the second-lowest possible evaluation score; and (3) was assigned a high-pressure JIT delivery. The jury also heard that (1) Ali concluded the road was not icy because there was no “spray coming from cars” and (2) Ali’s method of detecting conditions giving rise to black ice was flawed because drivers “cannot look at spray coming off a tire when there has been freezing rain and there’s been moisture in the air. There’s going to be a small, thin layer on top of solid ice and it’s even more slippery.”
ii. Likelihood of Injury
The record contains evidence that there was black ice on the roads, black ice is the “most dangerous … by far,” black ice is “the most difficult to see” and “generally must be inferred from other evidence,” black ice reduces traction and increases the likelihood of someone being seriously injured or killed in a motor vehicle collision (especially with an 18-wheeler), drivers of 18-wheelers will encounter traffic scenarios they did not create but that nonetheless require reasonable responsiveness, and (under the circumstances) it was likely that an 18-wheeler traveling at approximately 50 miles per hour in the freezing rain on black ice during a National Weather Service Winter Storm Warning would cause significant injury or death if presented with a traffic scenario that required an immediate reduction of speed to avoid a significant collision with another vehicle that lost control in those same conditions. Under the circumstances, the likelihood of serious bodily injury or death to travelers in vehicles that lost control in front of unreasonably unskilled 18-wheeler drivers while they are traveling at approximately 50 miles per hour through an area with a Winter Storm Warning, freezing rain, freezing temperatures, and black ice despite being deprived of information concerning those weather conditions was extremely high.
iii. Foreseeability
Foreseeability is, time and again, the single most important variable of the six. See City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 2009); see also Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 36 (Tex. 2002). Texas law has long recognized that “[f]orseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others.” Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 551 (Tex. 1985) (citing Mo. Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex. 1977)); see also Mo. Pac. R.R. Co., 552 S.W.2d at 103-04 (“An act wanting in ordinary care which actively aids in producing an injury as a direct and existing cause need not be the sole cause; but it must be a concurring cause and such as might reasonably have been contemplated as contributing to the result under the attending circumstances. It matters not what the actor believed would happen, but whether he ought to have reasonably foreseen that the event in question, or some similar event, would occur.”) (citing, inter alia, Gonzales v. City of Galveston, 84 Tex. 3, 19 S.W. 284, 285 (1892)). “Foreseeability does not require that the actor anticipate just how the injuries will grow out of the particular dangerous situation.” Mo. Pac. R.R. Co., 552 S.W.2d at 103 (citing Clark v. Waggoner, 452 S.W.2d 437 (Tex. 1970); Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951)); see also Finley v. U-Haul Co. of Ariz., 246 S.W.3d 185, 187 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (“Foreseeability requires only that the general danger, and not the exact sequence of events that produced the harm, be foreseeable.”) (citing Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999)); Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 265 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
*21 Here, Werner should have reasonably anticipated that it created unreasonable dangers for other travelers (including the Blakes) who were travelling in treacherous weather conditions by (1) failing to provide its drivers with instruments like a CB radio and an OAT gauge, (2) prohibiting the use of such instruments, and (3) failing to inform its drivers of possible weather hazards because its drivers (especially inexperienced novice drivers like Ali) would foreseeably fail to realize that they were driving their 18-wheelers at unreasonable speeds on roads with black ice, thereby preventing them from avoiding otherwise avoidable catastrophic collisions with travelers on Texas highways. Werner also should have reasonably anticipated that assigning student drivers with subpar evaluation scores to high-pressure JIT runs through areas with perilous weather conditions and imposing consequences for late deliveries (including termination for multiple late deliveries) created dangers for other travelers (including the Blakes) because drivers (like Ali) lacked the skill and experience to safely handle such runs in such conditions. Therefore, the harms to the Blakes were foreseeable under the circumstances. See Palsgraf, 162 N.E. at 100 (“The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.”); see also Grewe v. Sw. Co., No. 04-3818JRTFLN, 2005 WL 1593048, at *3-4 (D. Minn. July 5, 2005) (citing Palsgraf, concluding the appellee owed a legal duty to the appellant, and holding the duty “arose out of the fact that [appellee] knew, or should have known that … arranging carpools for exhausted students that would require them to drive through the night … would result in a foreseeable risk of injury”); Robertson v. LeMaster, 171 W.Va. 607, 301 S.E.2d 563, 568-69 (1983) (citing Palsgraf, concluding the appellee owed a legal duty to the appellants, and holding “the appellee reasonably could have foreseen that its exhausted employee, who had been required to work over 27 hours without rest, would pose a risk of harm to other motorists while driving the 50 miles from the appellee’s office to his home”).
The Supreme Court of Texas has recently reaffirmed long held precedent underpinning the inherently basic concept of foreseeability in negligence actions:
Foreseeability does not necessarily equate to predictability. Rather, “foreseeability” means that the actor should have reasonably anticipated the dangers that his negligent conduct created for others. It does not require that a person anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence. It requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Accordingly, the plaintiff need not always show that his particular injury has occurred before in order to create a fact question on foreseeability.
Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 519 (Tex. 2019) (internal citations omitted). Under the facts of the record below, we conclude the injuries were of a general character that might reasonably have been anticipated considering that Werner (1) not only failed to provide its drivers with equipment that would enable them to recognize dangerous road conditions like ice, freezing rain, and black ice, but it prohibited the use of such equipment, and (2) assigned high-pressure JIT deliveries to inexperienced and unskilled student drivers. See Mellon Mortg. Co., 5 S.W.3d at 655.
iv. Magnitude of Burden
Appellants fail to identify any burden Werner would incur if it took any affirmative steps to address the risk, foreseeability, and likelihood of injury under these facts. The closest Appellants come is a conclusory statement: in their view, this Court should not impose any new duties on motor carriers based on the “unjust, undue burden on interstate commerce that such duties would create.” This singular statement neither briefs nor proves Werner’s burden and fails to support any argument that such a burden is sizable (much less unjust). To the extent Appellants rely on this statement to show the magnitude of Werner’s burden, they have waived this issue via a failure to brief it. See Tex. R. App. P. 38.1(f), (i), & (j).11
*22 The second closest Appellants come to addressing the magnitude of Werner’s burdens is when they argued (for the first time in their reply brief on appeal) that “the magnitude of requiring all commercial drivers to cease operation whenever ice may be present would be momentous[.]” Even if we were to accept this contention as properly briefed, Appellants fail to cite any fact or authority tending to support their point; again, this constitutes briefing waiver. See Tex. R. App. P. 38.1(i).12 Additionally, we do not believe that it is too much to ask of Werner to require its drivers to refrain from driving unreasonably fast. In fact, section 2.6.2 of the CDL manual contains a safety rule requiring drivers to reduce their speed to a “crawl” (meaning a speed of no more than 15 mph) and then come to a stop as soon as feasible when they encounter icy roads. Considering section 2.6.2’s safety rule, requiring drivers to slow or stop when encountering icy roads is neither “momentous” nor overly burdensome.
The third closest Appellants get to addressing the magnitude of Werner’s burdens can be found on page 45 of their appellate brief. There, they say that “continuously monitoring thousands of weather conditions across the country that are constantly changing … [is] impossible for any company to meet” and that “[m]otor carriers simply cannot monitor real-time weather conditions for each truck route across the country and provide on-the-spot, minute-by-minute directives to their drivers. No court has imposed such duties.” However, there is no record evidence supporting these conclusory statements. Therefore, it is waived. See Tex. R. App. P. 38.1(i) (“The brief must contain … appropriate citations to … the record.”); Harkins v. Dever Nursing Home, 999 S.W.2d 571, 572-73 (Tex. App.—Houston [14th Dist.] 1999, no pet.); see also Reule v. M & T Mortg., 483 S.W.3d 600, 619 n.12 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (“Notwithstanding our discretion in the area of briefing waiver, we must balance the rights of the parties in this endeavor. For example, where a party fails to adequately brief in an opening brief, but takes steps to cure the inadequacy by supplemental authorities and citations, we may consider the issue because the opposing party has an opportunity to respond …. But here, neither the appellant nor the appellees have supplied any citations to the record or legal authority on the issue of sanctions.”) (emphasis added) (citation omitted); Wohlfahrt v. Holloway, 172 S.W.3d 630, 639 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (“To have preserved error, a party’s argument on appeal must comport with its argument in the trial court.”).13 After a thorough examination of a lengthy record, we are satisfied that there was no evidence before the trial court concerning the purported magnitude of any burden relevant to our duty analysis under the risk-utility test.
*23 Therefore, Appellants have failed to introduce any evidence tending to show the magnitude of the purported burden Werner would incur if it provided its new or inexperienced drivers with access to (1) information concerning dangerous weather conditions along their routes or potential routes (e.g., Winter Storm Warnings from the National Weather Service); or (2) CB radios or OAT gauges to determine outside temperatures when even Werner’s winter training module requires drivers to have their CB radios on (thereby providing foreseeable access to knowledge concerning the existence of the dangerous conditions foreseeably presented). Nor is there evidence showing what the purported burden on Werner would be to refrain from assigning JIT deliveries to low-scoring student drivers who require supervision but are not provided the necessary oversight.
However, there was evidence to the contrary. For example, Werner instructed drivers in its winter training module to always keep their CB radios on. This constitutes evidence that it would not be too burdensome to equip Werner’s 18-wheelers with CB radios and to let drivers use them; otherwise, Werner would not have included an instruction in its training module requiring drivers to have their CB radios on. And, as we noted above, the CDL manual already imposes a requirement on drivers to come to a crawl and then stop their 18-wheeler when encountering icy roads.
v. Social Utility of the Actor’s Conduct
Similarly, neither the record nor Appellants’ briefs contain any evidence or argument tending to establish any social utility associated with Werner’s failures to provide the foregoing. Here, the Blakes’ right to sue and recover for their injuries “must be considered in light of countervailing concerns,” including (presumably) the social utility of facilitating timely and safe interstate commercial deliveries. See, e.g., Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994) (social utility of eradicating sexual abuse); see also Venetoulias v. O’Brien, 909 S.W.2d 236, 242 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d) (“allowing Venetoulias to make the promise to arrange safe transportation without a corresponding duty to perform as he promised, serves no social utility and places only a slight burden on him. He negligently created the situation and failed to act reasonably …”). The contours of this utility were not presented by Appellants to the trial court or on appeal; in fact, Appellants never even used the phrase “social utility” in the trial court. Under these facts, Appellants have failed to preserve and to brief this issue.14
*24 The Blakes, however, did address this issue before the trial court.15 Even if we were to ignore Appellants’ failures to preserve and brief this issue and proceed to analyze the merits, the social utility associated with Werner’s conduct that caused the Blakes’ catastrophic injuries is so minimal that it is foreseeably non-existent. Specifically, Werner entrusted a JIT load (with known consequences for failure to deliver on time) through West Texas during a Winter Storm Warning to a relatively new and unsupervised driver who scored the second-lowest possible score on a supervisor’s evaluation only two weeks prior while knowingly failing to provide him with timely information about the dangerous weather conditions he would encounter or access to devices capable of ensuring he was aware of foreseeable conditions like Winter Storm Warnings and freezing temperatures. If there is any social utility present in such conduct, we fail to see it (at least in part because Appellants neither preserved nor briefed it).
vi. Consequences of Placing the Burden on the Defendant
Neither the record nor Appellants’ briefs reveal any burdensome consequences associated with imposing a duty on Werner to do something more than what it did to prevent the Blakes’ injuries, e.g., provide inexperienced and unskilled drivers like Ali with access to devices or information regarding foreseeable conditions like Winter Storm Warnings and freezing temperatures or refrain from assigning high-pressure JIT deliveries to novice drivers. Therefore, this issue is waived. See Tex. R. App. P. 38.1(i); Reule, 483 S.W.3d at 617 (“We conclude that Reule’s discussion of this issue does not provide the court with sufficient information to examine any alleged error; therefore any such error is waived by inadequate briefing.”) (citing Goad v. Hancock Bank, No. 14-13-00861-CV, 2015 WL 1640530, at *5 (Tex. App.—Houston [14th Dist.] Apr. 9, 2015, pet. denied) (mem. op.)). Additionally, because Werner already instructs drivers in its winter training module to always keep their CB radios on and the CDL manual already imposes a requirement on drivers to significantly reduce their speed and then stop their 18-wheeler when encountering icy roads, the consequences of placing this burden on Werner is a factor in favor of imposing a duty under the circumstances.
vii. Balancing Analysis
*25 In sum, an analysis of these factors yields the following conclusions:
| Risk | Very high given the (1) weather and road conditions, (2) unreasonably high speed of travel, (3) driver’s lack of experience and skill, and (4) driver’s inability to acquire information concerning the weather and road conditions. |
| Likelihood of Injury | Very high given the (1) weather and road conditions, (2) unreasonably high speed of travel, (3) driver’s lack of experience and skill, and (4) driver’s inability to acquire information concerning the weather and road conditions. |
| Foreseeability | Very high given the (1) weather conditions, (2) road conditions, (3) driver’s subpar driving scores, and (4) driver’s inexperience as a student driver while being assigned to a high-pressure delivery and being denied access to information concerning the weather and road conditions. |
Versus
| Magnitude of Burden | Appellants failed to present argument or evidence with respect to this factor. Nonetheless, there is some evidence that the magnitude of the burden is not significant. |
| Social Utility of the Actor’s Conduct | Appellants failed to present argument or evidence with respect to this factor. Moreover, it is difficult to discern any social utility associated with inexperienced, unskilled drivers driving 18-wheelers at unsafe speeds in dangerous weather conditions (particularly when drivers are without access to readily acquirable devices that facilitate the detection of conditions giving rise to black ice). |
| Consequences of Placing the Burden on the Defendant | Appellants failed to present argument or evidence with respect to this factor. Nevertheless, there is some evidence that it would not be significantly burdensome to impose a duty on trucking companies such as Werner under the circumstances. |
Together, these factors when viewed through the risk-utility test impose a duty on trucking companies to (1) refrain from preventing their drivers from accessing information about foreseeably dangerous weather conditions while they are driving through those conditions; and (2) refrain from assigning inexperienced or low-scoring drivers to high pressure deliveries, such as JIT runs. Otis Eng’g Corp., 668 S.W.2d at 311 (“[W]hen, because of an employee’s incapacity, an employer exercises control over the employee, the employer has a duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from causing an unreasonable risk of harm to others. Such a duty may be analogized to cases in which a defendant can exercise some measure of reasonable control over a dangerous person when there is a recognizable great danger of harm to third persons.”) (citing Restatement (Second) of Torts: Duty of Those in Charge of Person Having Dangerous Propensities § 319; William L. Prosser, The Law of Torts, § 56, at 350 (4th ed. 1971)); cf. Sentry Select Ins. Co. v. Drought Transp., LLC, No. 15-CV-890 (RCL), 2017 WL 5382168, at *2 (W.D. Tex. May 3, 2017) (“For example, a motor carrier has a duty under 49 C.F.R. § 390.11 to require its drivers to observe duties or prohibitions prescribed to a driver under 49 C.F.R. Subchapter B. Accordingly, if a motor carrier fails to enforce those duties, it may be liable for its own negligence in failure to follow the FMCSR.”) (emphasis added).
b. Breach
Having determined that Werner owed the Blakes a duty to exercise ordinary care which included (1) not restricting its commercial drivers from accessing information and equipment that would reveal the existence of foreseeably dangerous weather or road conditions (including Winter Storm Warnings and black ice) and (2) refraining from assigning JIT deliveries to student drivers or subpar drivers with low scores, we next assess whether the evidence is legally and factually sufficient to support the jury’s finding that Werner breached that duty.
*26 The jury heard evidence that was legally and factually sufficient to support the jury’s finding that Werner breached its duty of care under the circumstances. Specifically, the jury heard that (1) Werner actively denied Ali access to devices which would have conveyed relevant information concerning the weather and road conditions into which he was driving during a Winter Storm Warning while traveling at approximately 50 miles per hour on a JIT delivery; (2) Ali received the second lowest score possible on his driving exam; and (3) Ali was nonetheless entrusted with a JIT run through a Winter Storm Warning without access to relevant information or a supervisor who was awake. The jury also heard that (1) Werner’s director of safety was unfamiliar with Werner’s practice of pairing student drivers with trainers on JIT deliveries; (2) it is “really important for the driver to monitor the outside air temperature … because we know once it drops below 32, that’s the condition that creates freezing water and therefore, freezing rain and black ice”; and (3) despite this importance, Ali was actively and knowingly prevented from monitoring the outside air temperature. Crediting this evidence in favor of the verdict, reasonable and fair-minded jurors could have concluded that Werner breached its duty to exercise ordinary care with respect to the Blakes.
c. Causation
Appellants also attack the legal and factual sufficiency of the evidence supporting the jury’s proximate cause finding. In that regard, they contend that prohibiting Ali from using a CB radio and an OAT gauge cannot support the jury’s proximate cause finding because (1) there is no evidence Ali would have heard other truck drivers’ conversations around the time of the accident had he been listening to the CB radio and, regardless of what Ali might have heard, he was listening to a commercial radio station which also would have provided him with weather and traffic reports; (2) an “OAT gauge does not measure ground temperature, which is always warmer than ambient air temperature”; and (3) “Ali already knew the ambient air temperature was at or below freezing when he took his break in Sweetwater”, he experienced the cold air firsthand, and he would not have concluded “the travel portions of the westbound lanes of I-20 were icy based on what he was seeing.” We reject Appellants’ assertions for several reasons.
First, there is evidence Ali would have heard other drivers’ conversations around the time of the accident had he been allowed to listen to a CB radio. The Blakes presented testimony that “all over the CB chatter” drivers were saying that “if you want to … risk a human’s life over trying to get your load there on time, it’s not worth it.” Tow-truck driver assistant James Wampler stated that “seasoned truck drivers” were coaching “unseasoned or new truck drivers on the radio.” On CB radio, “new drivers [were] asking seasoned drivers what they should do about driving on the ice”; new drivers would ask experienced drivers if they thought “it would be safe to keep going, you know, to push — to push hard to get through the storm,” but “older drivers … were telling them, no,” and advised that “[n]o matter where you’re at, pull off in the ditch, whatever, shut it down.”
Second, Appellants incorrectly assert that Ali was listening to a commercial radio station and could have heard weather and traffic reports there. The record, however, reveals that Ackerman prohibited Ali from listening to commercial radio because Ackerman wanted to sleep and also limit any distractions for Ali.
Third, to the extent Appellants’ statement that an “OAT gauge does not measure ground temperature, which is always warmer than ambient air temperature” is an attempt to dismiss an OAT gauge’s importance or even intimate it is worthless in detecting ground temperature to assess whether ice is on the road, it is misguided and imprudent. Experts at trial, including Werner’s director of safety Carlos Romay, agreed that an OAT gauge is a valuable tool and is considered safety equipment. Romay agreed that when there is a “prediction of light-freezing rain which we know creates black ice … it’s really important for the driver to monitor the outside air temperature” by either “a cell phone or through the OAT, or outside air temperature gauge, on his truck because we know once it drops below 32, that’s the condition that creates freezing water and therefore, freezing rain and black ice.” One of Werner’s directors of safety (James Kochenderfer) also testified he wished Ali “had the temperature up on the display.”
*27 Fourth, Appellants’ assertion that “Ali already knew the ambient air temperature was at or below freezing when he took his break in Sweetwater” and experienced the cold air firsthand is not supported by the evidence. Instead, Ali testified that he (1) did not know what the “outside air temperature was when [he and Ackerman] left the yard in Dallas” but he had no reason to disagree “it was in the 40’s”; (2) he did not know that the temperature “close to the area that the National Weather Service warned that the ice was going to be on the roads” was below freezing because he “didn’t have the gauge on the truck” because “Werner wouldn’t let [him] have it”; (3) did not remember the truck stop in Sweetwater at all as there “wasn’t anything out of the ordinary that happened” and could not remember doing “anything to try to get an update on what the weather was like heading towards the area that [he was] going”; (4) “didn’t check the weather app or news channel or anything”; and (5) knew “it was cold” but he did not “remember what the weather was like.”
Fifth, when read in context, Appellants’ contention that “Ali confirmed he would not have concluded the travel portions of the westbound lanes of I-20 were icy based on what he was seeing” is not supported by the record. Rather, Ali confirmed that if Werner had informed him that he was “heading straight towards the area where there’s freezing rain making black ice on the highways and they had let [him] use the outside air temperature gauge so [he] could tell that by the time [he] got to the area that National Weather Service said this was happening the temperature was in the 20’s,” he would have considered it or taken it into consideration; but from everything at that point, “[he] didn’t have anything — any reason to believe” there was ice on the highway. Ali also responded that “[i]t would be helpful if I had those tools” when he was asked if he wished Werner had communicated to him that he was driving “towards the area where there’s freezing rain making black ice” and let him use an OAT gauge. In context, Ali seemed to confirm that had Werner told him he was heading towards freezing rain and let him use a temperature gauge, he would have been able to determine that the temperature was in the 20’s. Without that information, he had no reason to believe there was black ice on the highway.
Finally, Appellants claim that assigning Ali to make a JIT delivery could not have proximately caused the accident because (1) he did not know he was making a JIT delivery until he was asked to testify; and (2) the “accident could just as easily have involved a non-trainee/trainer team on any other delivery.” We reject these arguments.
Although Ali testified that he did not know he was on a JIT delivery, controverting evidence showed that he received a message on his 18-wheeler’s in-cab Qualcomm messaging system three minutes after leaving the yard with the truck load informing him: “YOU ARE UNDER A JUST IN TIME LOAD. ON TIME SERVICE IS CRITICAL.” Thus, Ali’s testimony is contradicted by evidence showing (1) Ali received a message telling him that he was on a JIT delivery, (2) Ali was delivering a load for Con-Way, and (3) all Con-Way deliveries were JIT deliveries.
Further, Appellants’ claim that this collision “could just as easily have involved a non-trainee/trainer team” is implausible because (given the record before us) a reasonable and fair-minded jury could have concluded that an experienced and skilled driver would (1) have been allowed to listen to CB radio and use an OAT gauge to determine the outside temperature and understood he was driving on ice; (2) have recognized the dangerous weather conditions that foreseeably included black ice; (3) not have driven at an unreasonably high speed; (4) have reduced his speed to a crawl; and (5) have stopped the truck as soon as feasible.
Moreover, the record contains the following evidence in support of the jury’s proximate cause finding:
(1) it is “really important for the driver to monitor the outside air temperature … because we know once it drops below 32, that’s the condition that creates freezing water and therefore, freezing rain and black ice”;
*28 (2) Ali did not know it was below freezing at the time because he did not “have the gauge on the truck”;
(3) Ali did not have a temperature gauge on the truck because he was not permitted to use one;
(4) Werner taught Ali in “other [training] modules” about CB radios;
(5) Ali’s supervisor prohibited him from using a CB radio (even when the supervisor was asleep);
(6) Ali “never used” the CB radio during the entire trip;
(7) Ali believed it would have been helpful if he had those tools available to him;
(8) if Werner had informed Ali of the Winter Storm Warning that he would “be as safe as possible”;
(9) Ali passed three crashes on the highway before colliding with the Blakes;
(10) one of Werner’s directors of safety (James Kochenderfer) wished Ali had his CB on and “had the temperature up on the dash”;
(11) Ali personally believed that 2.6.2 was “a very good recommendation” that drivers are “not required to follow”;
(12) testimony from Werner’s vice-president of safety and compliance (the third highest position at Werner) that:
(a) Werner’s winter driving training module stated, “If you have a CB radio in your truck, you should always have that turned on. There’s a lot of information that can be learned from listening to the conditions ahead. There could be accidents, there could be slick spots that other drivers might report. It’s good information to know”;
(b) he did not know Werner’s 2014 winter storm training module contained the foregoing instructions about CB radios;
(c) Werner’s company policies and teachings (particularly its decision to stop teaching its drivers to stop tying shoestrings to their mirror brackets to see if they freeze) were based on its drivers reporting that the number one thing they look for (rather than the number one thing Werner teaches its drivers) is “to see if there’s ice on the roadway is the spray from the vehicles coming up from those traveling around them”; and
(13) the foregoing method is flawed because drivers “cannot look at spray coming off a tire when there has been freezing rain and there’s been moisture in the air. There’s going to be a small, thin layer on top of solid ice and it’s even more slippery”.
Based on the record before us, we conclude that there is sufficient evidence to support the jury’s finding that Werner’s negligence proximately caused the collision.
2. Negligence Liability Finding in Question 2
We next address Appellants’ arguments challenging the jury’s negligence finding in Question 2, which provided as follows:
Question 2
Was the negligence, if any, of Werner acting through its employees other than Shiraz Ali in the manner stated below a proximate cause of the injuries in question?
Consider Werner’s negligence, if any, in the following
A supervising Shiraz Ali, but only if you find that Shiraz Ali was incompetent or unfit, and Werner knew, or through the exercise of ordinary care should have known, that Shiraz Ali was incompetent or unfit, thereby posing an unreasonable risk of harm to others, and
B training Shiraz Ali[.]
“Negligence,” when used with respect to the conduct of Werner, means failure to use ordinary care, that is, failing to do that which a trucking company of ordinary prudence would have done under the same or similar circumstances or doing that which a trucking company of ordinary prudence would not have done under the same or similar circumstances[.]
*29 “Ordinary care,” when used with respect to the conduct of Werner, means that degree of care that would be used by a trucking company of ordinary prudence under the same or similar circumstances[.]
“Proximate cause,” when used with respect to the conduct of Werner, means a cause that was a substantial factor in bringing about an injury, and without which cause such injury would not have occurred[.] In order to be a proximate cause, the act or omission complained of must be such that a trucking company using ordinary care would have foreseen that the injury, or some similar injury, might reasonably result therefrom There may be more than one proximate cause of an injury[.]
Answer “yes” or “no”
a. Duty
In their brief, Appellants have not disputed that Werner owed a duty to train and supervise its employee Ali. Further, employers in Texas owe certain non-delegable duties to their employees, including the duties to train and supervise their employees. See Diamond Offshore Drilling, Inc. v. Black, 652 S.W.3d 463, 473 (Tex. App.—Houston [14th Dist.] 2022, no pet.); Kroger Co. v. Milanes, 474 S.W.3d 321, 335 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
b. Breach
Therefore, we turn to Appellants’ contention that there is legally and factually insufficient evidence to support the jury’s finding that Werner was negligent because it “properly trained and supervised Ali.” In that regard, Appellants claim the evidence does not support a finding that Werner negligently trained Ali because (1) Ali participated in Werner’s 275-hour new driver training program; (2) Werner trained Ali “on winter driving, speed management, and other driver-related topics”; (3) Ali was provided a copy of the CDL manual; and (4) Ali participated in “a quarterly driver safety meeting.” We disagree.
Even when we accept Appellants’ contention that they provided Ali with a copy of the CDL manual, the jury heard evidence that they (1) failed to reasonably train him and (2) knew he was unreasonably trained. Section 2.6.2 of the CDL manual contains the safety rule instructing drivers to reduce their speed to “a crawl” when they encounter icy roads. As truck safety expert Arthur Atkinson confirmed, “a crawl” means a speed between 10 and 15 miles per hour, but no more than 15. Atkinson testified that “the point of crawling” is to stop. He explained that the “ultimate purpose is not just to crawl along for 100 miles” but to “get down to a speed that you can control and gives you time to do the right thing at the right time and if the worst thing happens, when you have an accident, it won’t be bad. Until you can get off the road and get stopped and wait until the conditions change, as they will.”
The jury also heard testimony that following this safety rule in section 2.6.2 is not discretionary and that Werner nonetheless taught its drivers that, unless “they feel that they’re unsafe,” they can choose whether to come to a crawl or stop in icy road conditions. Ali even stated that he believed section 2.6.2 was “a very good recommendation” that drivers are “not required to follow.” Conversely, Atkinson testified that it is “ludicrous” to not follow section 2.6.2. The jury also heard that Werner taught its truck driving students that they should stop the truck if they felt unsafe, but that if they did not feel unsafe, they could keep driving. The jury could reasonably have determined that Werner did not properly train Ali when it taught him to not follow mandatory safety rules.
*30 The Blakes also presented evidence that Ali had not taken Werner’s “Winter Driving Training Module” and did not even know what the training module was called. In fact (and contrary to Appellants’ assertion that Ali participated in Werner’s 275-hour new driver training program), the jury heard that Ali only had “55 hours in this student driver training program under [his] belt” at the time of the accident and had never before driven a truck for a living. Ali was never trained on ice, snow, or other difficult road conditions, and evidence showed that Ali had the second-lowest possible evaluation score just two weeks before this collision. Therefore, the jury reasonably could have concluded that Ali was not properly trained.
Appellants further claim that “in light of Ali’s training and driving experience, the evidence is legally and factually insufficient to support a finding that Ali was either incompetent or unfit to drive on December 30. Thus, under the charge submitted at the Blakes’ request, the evidence is legally and factually insufficient to support any finding that Werner was negligent in supervising Ali.”
The charge required the jury to find that Ali was incompetent or unfit before determining that Werner was negligent in supervising Ali. However, the charge did not define the terms unfit or incompetent. When no definition is provided in the charge, jurors may use any reasonable, ordinary, or common understanding of the terms used. Dorton v. Chase, 262 S.W.3d 396, 399 (Tex. App.—Waco 2008, pet. denied).
The Blakes presented evidence that Ali was a novice/student driver who had “very little experience and training, certainly not dealing with these kind of” weather conditions. Atkinson testified that Ali’s “school was two weeks and two days long, and he’d only been out another six and a half days before this day of the accident.” Atkinson explained that there “just wasn’t enough time for him to gain experience. There’s no evidence he was ever trained on ice by his trainer or snow or anything else that deals with difficult road conditions; and he didn’t see what few training films they had, which were substandard even at their best.” Ali was unable to recognize that the roads were icy leading up to the accident; he also had a very low evaluation score. The jury reasonably could have concluded that Ali’s lack of proper training and lack of experience driving 18-wheelers in dangerous winter weather made him an incompetent or unfit driver and that Werner knew or should have known that he was unfit or incompetent before assigning him this high-pressure load under these circumstances.
We also reject Appellants’ contention that Werner supervised Ali because he was (1) “accompanied at all times on December 30 by his co-driver and trainer, Jeff Ackerman, a driver with thousands of miles under his belt”; and (2) “supervised through various state-of-the-art safety equipment, including a Mobileye that could trigger an alert to Werner if Ali followed another vehicle too closely, a governor that limited the Werner truck’s speed to 65 miles per hour, and a stability control system that could detect any loss of traction.”
Ackerman may have accompanied Ali, but Ackerman certainly did not supervise Ali while he was sleeping through treacherous weather. Appellants mention that Ackerman was “a driver with thousands of miles under his belt,” but that means nothing when he was asleep and did not use his experience to train and supervise an incompetent or unfit driver in adverse conditions.
Further, Appellants’ contention that Werner supervised Ali through the listed state-of-the-art safety equipment is not evidence of supervision in this case. None of the listed equipment could have helped Ali recognize the dangerous black ice on the road and instructed him to slow to a crawl or stop the truck. Further, the record shows that Werner did not warn Ali of the conditions on I-20 that day. Ackerman could have done so had he been supervising Ali instead of sleeping. The factfinder reasonably could have determined that Werner breached its duty to supervise and train Ali. Thus, we conclude that there is legally and factually sufficient evidence to support the jury’s finding that Werner was negligent in training and supervising Ali.
c. Causation
*31 Finally, Appellants’ assert Werner’s negligent training and supervision did not proximately cause the collision because (1) Werner properly trained Ali; (2) the “evidence is legally and factually insufficient to conclude that, if Werner instructed Ali again about these same matters, this accident would not have occurred”; (3) “no evidence supports a finding that additional supervision would have prevented this accident”; and (4) “the evidence established that Ali acted reasonably and prudently in this accident, Werner’s antecedent training and supervision is irrelevant[,] and [it] cannot support a liability finding against it in this case.”
We reject Appellants’ contention for several reasons. First, contrary to Appellants’ assertion and as we discussed above, Ali was not properly trained by Werner. Second, Werner’s contention that “additional supervision” would not have prevented the accident is baffling and nonsensical when there was no supervision of Ali (or of the weather through which he was traveling) for several hours before the collision occurred. Third, we already held that the evidence does not establish that Ali acted reasonably and prudently. Fourth, had Werner reasonably supervised Ali, he would not have been permitted to drive at an unreasonable and dangerous speed on icy roads during a Winter Storm Warning. Finally, had Werner properly trained Ali, he would have recognized the conditions giving rise to black ice as well as reduced his speed to “a crawl” and then stopped his 18-wheeler once he encountered icy roads as mandated by the safety rule in section 2.6.2 of the CDL manual. Therefore, we conclude that there is sufficient evidence to support the jury’s finding that Werner’s negligent training and supervision proximately caused the collision.
Accordingly, we overrule Appellants’ third issue.
IV. The Apportionment Questions and the Jury’s Findings in Response
Asserting that the trial court “erroneously submitted three separate comparative responsibility questions,” Appellants argue in their fourth issue that chapter 33 of the Texas Civil Practice and Remedies Code “contemplates the submission of a single comparative responsibility question.” Appellants cite section 33.003 to support this contention which states, in relevant part:
The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person’s causing or contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these:
(1) each claimant;
(2) each defendant;
(3) each settling person; and
(4) each responsible third party who has been designated under Section 33.004.
Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a). But, contrary to Appellants’ contention, this section does not mandate a single comparative responsibility question. Moreover, Appellants did not cite — and our research did not find — any case law or other authority holding that a trial court may not submit multiple comparative responsibility questions.
Rather, case law suggests that a single comparative responsibility question is not universally appropriate and may necessitate a new trial when it requires the jury to segregate liability amongst improperly-included parties. See, e.g., Diamond Offshore Drilling, 652 S.W.3d at 483 (“Because the jury foreseeably could have apportioned liability differently had Diamond Rig not been included in the charge, a new trial is warranted.”); Heritage Hous. Dev., Inc. v. Varr, 199 S.W.3d 560, 571 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“Similarly, a new trial is necessary in this case, because the jury reasonably could have apportioned liability differently as between Houston Garden and the remaining defendants if HHD had not been included in the negligence charge.”). Therefore, we decline to impose this limitation here.
*32 Appellants also contend that the evidence is legally and factually insufficient to support the jury’s apportionment findings in response to Questions 5, 6, and 7 and argue:
• With respect to Question No. 5, “Appellants’ combined fault, if any, should have been far less than the 84% found.”
• With respect to question No. 7, “Ali’s individual fault should have been far less than the 45% assigned to him in Question 7.”
• Werner’s actions or failures to act cannot “account for the 17% and 39% differences found by the jury in answering Questions 5, 6, and 7.”
Aside from these bare assertions, Appellants do not cite any specific evidence to support their challenges.
The law gives the jury wide latitude in determining the negligent parties’ proportionate responsibility. See In re Cambell, 577 S.W.3d 293, 305 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding). “Even if the evidence could support a different percentage allocation, we may not substitute our judgment for that of the jury.” Id.
We conclude legally and factually sufficient evidence supports the challenged findings. The relevant testimony and evidence have been set out in detail above. From this evidence, the jury reasonably could reach the comparative-responsibility findings in response to Questions 5, 6, and 7.
We overrule Appellants’ fourth issue.
V. Evidentiary Issues
In their fifth issue, Appellants assert that the “trial court’s multiple evidentiary errors warrant a new trial.” Appellants identify five alleged errors:
1. The trial court erred in admitting evidence of “numerous dissimilar, unrelated accidents.”
2. The trial court permitted the Blakes’ trucking expert, Art Atkinson, to “testify on matters outside the scope of his purported expertise and to offer opinions that lacked a reliable foundation.”
3. The trial court erred by overruling Appellants’ objections to testimony from the Blakes’ forensic expert, Robert Johnson, because Johnson was unqualified and his testimony relies on “financial machinations, faulty logic, and pure guesswork.”
4. The trial court erred in admitting testimony from the Blakes’ crash reconstruction expert, James Crawford, “specifically his hypothetical and conjectural opinions.”
5. The trial court erred in admitting “James Wampler’s testimony concerning hearsay conversations that allegedly occurred on the day of this accident via CB radio.”
Appellants assert that the “combined effects” from these evidentiary errors “resulted in cumulative harmful error.” We begin with the applicable standard of review, examine each of these arguments individually, and conclude the trial court’s rulings did not constitute an abuse of discretion.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 918 (Tex. 2004); GB Tubulars, Inc. v. Union Gas Operating Co., 527 S.W.3d 563, 571 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding principles. Downer, 701 S.W.2d at 241-42; Harpst v. Fleming, 566 S.W.3d 898, 904 (Tex. App.—Houston [14th Dist.] 2018, no pet.). We will uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling, even if that basis was not raised in the trial court. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Harpst, 566 S.W.3d at 904. Accordingly, we examine all grounds for the trial court’s decision that are suggested by the record or urged by the parties. Harpst, 566 S.W.3d at 905.
B. Evidence of Other Collisions
*33 In their first evidentiary challenge, Appellants assert the trial court improperly admitted evidence of three different types of collisions: (1) “prior unrelated collisions that occurred on Just-in-Time runs handled by Werner trainee/trainer teams”; (2) “other collisions on I-20 … many of which occurred more than 50 miles away”; and (3) “the classification of every other accident in which Werner had ever been involved as either preventable or non-preventable.” We conclude that admitting these categories of evidence does not constitute reversible error.
In Texas courts, evidence of other collisions, near collisions, or related similar events is probative evidence so long as an adequate predicate is established. In re Sun Coast Res., Inc., 562 S.W.3d 138, 148 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding) (citing In re HEB Grocery Co., 375 S.W.3d 497, 502-03 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding)). “Prior to the admission of similar events, the plaintiff must first establish (1) a predicate of similar or reasonably similar conditions; (2) connection of the conditions in some special way; or (3) that the incidents occurred by means of the same instrumentality.” Id. “The degree of similarity required depends on the issue the evidence is offered to prove.” Id. (citing Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 138 (Tex. 2004)); see also Henry v. Mrs. Baird’s Bakeries, Inc., 475 S.W.2d 288, 294-95 (Tex. App.—Fort Worth 1971, writ ref’d n.r.e.) (“[t]here is no requirement that the conditions of the prior accident or occurrence be identical, the jury being well able to evaluate such minor variations as may exist”).
Evaluated pursuant to these standards, admitting evidence of the three categories of collisions delineated above does not constitute an abuse of discretion.
1. Other Collisions that Occurred During Just-In-Time Runs
During testimony by James Kochenderfer, one of Werner’s directors of safety, evidence was admitted regarding two prior collisions involving a Werner trainer/trainee driving team that occurred on JIT runs. The first one occurred in Colorado in 2013 during snowy and icy conditions; there, a Werner truck driven by a trainee struck another vehicle from behind while the supervisor was sleeping.
The second prior collision occurred in Oklahoma in 2015 when a “passenger vehicle was going on the on-ramp to the highway, hit icy road, [and] lost control in front of [a] Werner student driver.” The Werner student driver was traveling at approximately 59 miles per hour when he struck the passenger vehicle.
The evidence pertaining to these separate collisions adequately established a predicate of similar or reasonably similar conditions to the one at issue here. See In re Sun Coast Res., Inc., 562 S.W.3d at 148. Specifically, all three collisions (1) involved a Werner trainer/trainee driving team, (2) occurred during snowy or icy conditions, and (3) happened while the student driver was driving. Accordingly, admitting evidence of these collisions did not constitute an abuse of discretion. See Volkswagen of Am., Inc., 159 S.W.3d at 918.
2. Other Collisions on I-20
Broadly referencing the testimony from three witnesses, Appellants assert the trial court erred by admitting evidence regarding other collisions on I-20 that occurred shortly before Ali’s collision with the Blakes’ vehicle. These witnesses — Martin County Sheriff’s Chief Deputy Ernest Wakefield, Helen Myers, and James Britain — testified about three collisions that occurred approximately 52 miles east of the collision at issue.
*34 According to Chief Deputy Wakefield, he received a call concerning a crash at 3:30 p.m. on December 30, 2014. Although the collision was only three miles from Chief Deputy Wakefield’s location, he testified that it took him approximately 13 minutes to travel there because “the roads were so icy [he] couldn’t drive very fast or [he] would have gone out of control.” According to Chief Deputy Wakefield, the incident to which he responded involved a single passenger vehicle that lost control on the eastbound lanes of I-20 due to ice on the roadway.
Shortly after responding to this incident, Chief Deputy Wakefield became aware of another collision that occurred nearby and involved a “pileup of vehicles” on the interstate’s westbound lanes. While Chief Deputy Wakefield was responding to the pileup, a third collision occurred in which Helen Meyers was traveling westbound, saw “all the other wrecks that had occurred in front of her”, hit her brakes, and lost control of her car on the icy roadway. According to Chief Deputy Wakefield, her car went through the median into the interstate’s eastbound lanes and was struck by an 18-wheeler traveling east. Chief Deputy Wakefield testified that this collision occurred at approximately 3:48 p.m.
Helen Myers testified that when she saw the vehicle pileup ahead of her, she “tapped the brake to begin to slow [her] speed” and her car “immediately nosed off to the left” of the roadway. Myers said the highway was covered in black ice. Myers testified that her vehicle went through the median and collided with an 18-wheeler traveling in the interstate’s eastbound lanes. Myers said she was not injured.
James Britain was driving the 18-wheeler that collided with Myers’s car. According to Britain, the roadway was “covered in ice” at the time of his collision with Myers. Britain said he was traveling 5 miles per hour on the shoulder lane of eastbound I-20 when the collision occurred.
The evidence pertaining to these collisions established a predicate sufficient to warrant their admission and shows that they occurred under conditions reasonably similar to those near this particular stretch of I-20 at the time of Ali’s collision with the Blakes’ vehicle. See In re Sun Coast Res., Inc., 562 S.W.3d at 148. Specifically, each of the three collisions — the single-vehicle incident, the vehicle pile-up, and Myers’s collision with Britain’s 18-wheeler — occurred approximately one hour before the collision at issue and 50 miles east of the Blakes’ collision. According to the National Weather Service Winter Storm Warning, the winter storm was traveling from east to west. Moreover, Myers’s collision with Britain’s 18-wheeler bears striking similarities to the collision involving the Blakes: both involved a passenger vehicle that lost control, crossed the interstate’s median, and collided with an 18-wheeler traveling in the opposite direction.
These collisions also bear another connection to the one at bar: they occurred on the same portion of I-20 that Ali traveled shortly before his collision with the Blakes’ vehicle. Ali was specifically questioned about these collisions and asked whether he “passed not one, not two but three different car crash sites where there are cars either overturned or piled up … before [he] even got to our crash. You’ve seen that now, right?” In response, Ali said: “I mean, I can’t remember — I am not going to deny I saw it, but I just can’t remember seeing them. Most of the time I pass crashes, I don’t sit there and stare at it.” Ali also testified that he did not encounter any ice on the roadway before his collision with the Blakes’ vehicle.
*35 The testimony from Chief Deputy Wakefield, Myers, and Britain provides additional details regarding these collisions as well as the reported conditions on a relevant stretch of I-20 shortly before Ali’s collision with the Blakes’ vehicle. When combined with the other facts, these details allowed the jury to infer that reasonable 18-wheeler-trainee-drivers under the same or similar circumstances would have had sufficient notice that there were dangerous conditions and that they needed to do something other than plow ahead at 50 miles per hour without supervision or training. Accordingly, the trial court did not abuse its discretion by admitting evidence of these three collisions on I-20.
3. Classification of Werner’s Other Collisions
Appellants also challenge evidence “admitted at the request of the jury” that “concerned the classification of every other accident in which Werner had ever been involved as either preventable or non-preventable.” To support this argument, Appellants broadly complain about five pages of testimony from Kochenderfer in response to the following jury questions:
• “What is a chargeable versus a nonchargeable accident?”
• “Who or what determines if an accident is chargeable or nonchargeable?”
• “What percentage of Werner accidents are deemed chargeable versus nonchargeable?”
Appellants argue that “[t]he disparity in these determinations between the serious accidents investigated by Werner’s legal department and the minor accidents investigated by its risk and safety department is easy to explain — 95% of the minor collisions involve obviously preventable accidents, such as a driver backing into a fixed object.”
Appellants also assert that “[t]he trial court curiously allowed this evidence to be admitted at the request of the jury — not the parties.” Appellants do not cite any authority to support their insinuation that the trial court’s admission of evidence under these circumstances constituted an abuse of discretion. See generally K-Mart Corp., 24 S.W.3d at 360 (a trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles). First, we conclude Appellants’ argument is waived as Appellants failed to cite any relevant authority. Tex. R. App. P. 38.1(i). Second, we conclude the trial court’s admission of evidence was not unreasonable or arbitrary as it was in direct response to questions from the jury. Cf. Sparks v. State, 177 S.W.3d 127, 129 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (court did not abuse its discretion when it allowed jurors to ask questions of witnesses); Fazzino v. Guido, 836 S.W.2d 271, 275-76 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (same). Third, we decline Appellants’ invitation to create new precedent holding that trial courts abuse their discretion when they act in a manner that is not prohibited by any known, cited, or argued authority.
We overrule Appellants’ challenge asserting the trial court improperly admitted evidence of these three categories of collisions.
C. Testimony from Art Atkinson
In their second evidentiary challenge, Appellants argue that the trial court improperly allowed the Blakes’ trucking expert, Art Atkinson, “to testify on matters outside the scope of his purported expertise and to offer opinions that lacked a reliable foundation.” Specifically, Appellants assert Atkinson was unqualified to testify about (1) “the purpose of the federal government in enacting the provisions of the [Federal Motor Carriers Safety Regulations]”; (2) “the legal effect and purpose of the provisions of the CDL manual”; and (3) “the allegedly higher standard of care owed by motor carriers.”
In determining the admissibility of expert testimony, the trial court has broad discretion and we review its ruling only for an abuse of that discretion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006). Qualified experts may offer opinion testimony if that testimony is relevant and based on a reliable foundation. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 348 (Tex. 2015). When determining whether an expert’s opinions are based on a reliable foundation, “the trial court does not decide whether the expert’s conclusions are correct; instead, the trial court must determine whether the analysis used to reach those conclusions is reliable.” Harris Cnty. Appraisal Dist. v. Houston Laureate Assocs. Ltd., 329 S.W.3d 52, 57 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); see also Null v. State, 640 S.W.3d 370, 382 (Tex. App.—Houston [14th Dist.] 2022, pet. granted) (en banc) (“In evidentiary matters, a trial court is a gatekeeper, ensuring expert testimony is relevant and based on a reliable foundation.”) (citing In re J.R., 501 S.W.3d 738, 748 (Tex. App.—Waco 2016, no pet.)).
*36 While Appellants assert that Atkinson was “unqualified” to testify about the challenged topics, the evidence shows otherwise. Testifying at trial, Atkinson stated that he is a “truck safety expert” with over 40 years’ experience in the trucking industry; Atkinson also testified that he is familiar with the Federal Motor Carrier Safety Regulations, states’ CDL manuals, and other commercial vehicle safety publications. Atkinson said he began his trucking career by driving commercial trucks for two years delivering “all types of products” and “driving all types of vehicles under all kinds of conditions and terrain.” Atkinson testified that, after driving commercial trucks, he “became the director of safety for a major trucking company” for three years. Atkinson proceeded to assume roles as “director of safety or the vice president of safety for several trucking companies.” Atkinson said he spent a total of nine years “running a safety department for a trucking company.” In these roles, Atkinson said he received “thousands of hours of education” regarding commercial truck driving regulations. In addition, Atkinson testified that he has written commercial driving policies and procedures for “a great number of companies” as well as “preventability manuals”. Atkinson said that, over the course of his career, he has driven approximately 800,000 miles in an 18-wheeler.
According to Atkinson, he started doing consulting work in 1987; in this role, he would work with “[t]rucking or bus compan[ies]” to assist them in understanding “why they’re having accidents and in some cases why they were in trouble with the Department of Transportation.” Atkinson said he had worked with companies’ presidents, safety directors, and drivers to improve driving safety and assisted with “writing a company policy manual.” Against this backdrop, Appellants’ bare assertion that Atkinson was “unqualified” to testify about the challenged topics does not show the trial court’s admission of this testimony constituted an abuse of discretion.
Appellants also assert that Atkinson’s opinions “were not only arbitrary but internally inconsistent.” Appellants cite three examples to support this assertion:
1. “Atkinson opined Werner drivers had no discretion to ever drive when ice was suspected of being present, but claimed he was properly shown ‘how to drive in all types of conditions including on black ice’ by ‘an old knight of the road.’ ” (emphasis in original) (citations omitted).
2. “Atkinson opined the [Department of Transportation’s] 1997 interpretation of the extreme caution regulation giving drivers discretion to proceed was outdated, but based his opinions on material over 20 years old.” (citations omitted).
3. “Atkinson opined J.J. Keller’s publications were reliable, but chastised Werner for following that same organization’s training guide.” (citations omitted).
These arguments and the testimony cited to support them do not demonstrate inconsistencies in Atkinson’s testimony that establish the trial court abused its discretion.
With respect to the first example, Atkinson testified that he learned how to drive an 18-wheeler from “an old knight of the road” who “taught [Atkinson] how to drive under all kinds of conditions, including on black ice.” Recounting this experience did not preclude Atkinson from providing an expert opinion concerning requirements in the Texas CDL manual with respect to driving on black ice, i.e., “drive slower and smoothly” and “stop at the first safe place.” Atkinson testified that the Texas CDL manual is based on the Essex Corporation’s “model manual” from 1986. Accordingly, the Texas CDL manual was published after Atkinson learned how to drive an 18-wheeler on black ice. We therefore reject Appellants’ contention that an expert who learns how to do something (e.g., drive on black ice) should be precluded from testifying the thing they learned how to do should not be done. Moreover, Atkinson’s opinion testimony on this point was based on the education and experience he accumulated over the four decades after the challenged conduct occurred.
With respect to the second example, Atkinson did not testify that “the [Department of Transportation’s] 1997 interpretation of the extreme caution regulation giving drivers discretion to proceed was outdated.” Instead, Atkinson testified regarding a January 1997 interpretation from the Department of Transportation entitled “On Guard”. This publication states, in part:
*37 Recent contacts with truck and bus operators indicate that some, particularly smaller operators, are mistakenly assuming that if a driver possesses a Commercial Driver’s License (CDL), he or she is a trained and experienced commercial vehicle driver. This is not true and can be a very dangerous mistake.
Werner did not cite — and our review of the record did not find — any portion of Atkinson’s testimony suggesting this January 1997 interpretation (or any other 1997 interpretation) is “outdated.” See Tex. R. App. P. 38.1(i) (requiring citations to the record). Therefore, there is no inconsistency revealing an abuse of discretion.
With respect to the third example, Atkinson addressed this alleged inconsistency in his testimony. Werner’s counsel questioned Atkinson regarding his opinions on various trucking safety publications, including those from J.J. Keller. Atkinson testified that they are “reliable” but noted that they are “entry-level stuff”. Werner’s counsel then pointed out that these publications do not instruct drivers that “if you are on ice that you must reduce your speed to a crawl and get off the road as soon as possible.” Atkinson and Werner’s counsel then had the following exchange:
COUNSEL: You just testified that these are reliable sources, sir?
ATKINSON: Ma’am, there is so much more in those manuals than just this section. Not all of it is accepted by safety professionals in the industry. This is accepted by the government and safety professionals. There are portions in this that are written so that trucking companies will not reject these books and students and the same with schools.
We understand that. And so there are sections that we’re not going to accept, and there are other sections that are correct as a — at a foundational level. But this book and this book set the foundation; and everything else that’s better, we accept.
As this testimony shows, Atkinson drew a distinction between his general thoughts regarding the J.J. Keller publications and those publications’ specific recommendations regarding driving on ice. Under the facts of this case, the absence of detail in a foundational authority does not reveal an affirmative inconsistency with subsequent authorities that contain additional details.
In sum, these arguments do not show that the admission of Atkinson’s testimony constituted an abuse of discretion. We therefore overrule Werner’s challenges to Atkinson’s testimony.
D. Testimony from Robert Johnson
Appellants also assert that Robert Johnson (1) “used financial machinations, faulty logic, and pure guesswork to increase the Blakes’ damages claims”, and (2) “was unqualified to opine on the future prices of the medical expenses” reflected in Brianna’s lifecare plan. We consider below in section VI Appellants’ challenge regarding the substance of Johnson’s testimony. In this section, we analyze only Appellants’ contention regarding Johnson’s qualifications as an expert.
We disagree with Appellants’ argument that Johnson was “unqualified” to render an opinion regarding the price of future medical expenses. Johnson testified that he has a bachelor’s degree in business administration with a major in economics, a master’s degree in business administration with a major in finance and investments, and “postgraduate training with the Strategic Planning Institute and the American Management Association.” Johnson said he previously worked as an investment banker and had experience managing retirement portfolios, running mergers and acquisitions, and directing capital budgeting. According to Johnson, as an economic expert he has evaluated “several thousand” life care plans.
*38 Courts have found similar education and work experience sufficient to show a person is qualified to offer expert economic testimony. See, e.g., KMG Kanal-Muller-Gruppe Deutschland GmbH & Co. KG v. Davis, 175 S.W.3d 379, 390 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Appellants did not cite any case law or other authority to support their argument that Johnson is unqualified to render an opinion on the future prices of medical expenses in this case. See Tex. R. App. P. 38.1(i). Therefore, we overrule Appellants’ challenge to Johnson’s qualifications.
E. Testimony from James Crawford
Appellants summarily assert that the trial court erred by admitting Crawford’s “hypothetical and conjectural opinions … concerning what might have occurred had Ali ceased driving or slowed to a crawl.” On this point, Crawford testified as follows:
[I]f [Ali] had slowed down to 15 miles per hour at the beginning of where this driver actually began to perceive the pickup truck coming across the center divide, if he’d been going 15 miles an hour at that point, whether he’s in the left lane or the right lane, and took the same actions that he took here, the crash never would have happened, the pickup truck would have spun out safely across the roadway, across the other side into the grass, into the tumbleweeds over there, and it would not have overturned because there was nothing for it to hit, there were no other cars coming besides that black SUV, which was already out of the way by the time they got across the road. According to the driver, there were no other vehicles around him. So I’ve seen no evidence at all that there were any other vehicles that this pickup truck would have hit if the driver had slowed to 15 miles an hour in the semi, in the 18 wheeler.
There w[ere] no physical obstructions out there. There w[ere] no trees, there were no fire hydrants, no major ditches, anything that would cause harm to the truck, pickup truck or its occupants as it spun out to a normal final rest.
So that’s what we’re going to be showing here is if the Werner tractor-trailer had been going 15 miles an hour at the time when the pickup truck began to cross the center median, this is what happens.
Admitted during Crawford’s testimony was an animation showing this chain of events, in which the Werner Truck was traveling 15 miles per hour and the Blakes’ vehicle crossed the westbound lanes of I-20 unimpeded before coming to a rest in the median between the interstate and the service road.
As discussed above with respect to Atkinson’s testimony, an expert’s opinion must be based on a reliable foundation. See Gharda USA, Inc., 464 S.W.3d at 348. “Reliability may be demonstrated by the connection of the expert’s theory to the underlying facts and data in the case.” TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010). Here, Crawford’s opinion regarding what would have occurred if Ali had been traveling at 15 miles per hour meets that standard.
Crawford testified that he attended “schools that dealt with traffic crash investigation, traffic crash reconstruction, heavy truck brake courses, and all different kinds of courses in crash reconstruction” and has been working as a full-time accident reconstructionist since 1999. To form his opinions, Crawford stated that he examined and analyzed multiple types of evidence pertaining to the collision, including (1) evidence at the crash scene, (2) the vehicles’ locations afterwards, (3) the location of physical evidence from the impact, (4) the vehicles’ post-collision conditions and damage patterns, (5) engine module data recovered from the Werner Truck (including its deceleration rate as it went through the crash sequence), (6) crash scene photographs, and (7) depositions and written statements from witnesses and responders. Relying on this evidence, Crawford calculated the Werner Truck’s “drag factor” (which measures the truck’s deceleration rate). Noting that the drag factor was lower than expected, Crawford opined that “there was ice [on] the roadway and [that] would certainly degrade the deceleration rate.” Based on this evidence and his calculations, Crawford said he formulated animations to show “a representation of his opinion in this case.” One of those animations showed that if the Werner Truck had been traveling 15 miles per hour when the Blakes’ vehicle crossed the westbound lanes of I-20, the Werner Truck would not have collided with the Blakes.
*39 Courts have found similar evidence sufficient to show the reliability of an accident reconstructionist’s opinion. See, e.g., id. at 235, 239 (concluding that the expert’s “observations, measurements, and calculations were … tied to physical evidence in the case which likewise provided support for his conclusions and theory” thus “meet[ing] our standard for reliability”); Waring v. Wommack, 945 S.W.2d 889, 892-93 (Tex. App.—Austin 1997, no writ) (accident reconstructionist’s opinion was reliable and admissible because it was based on physical evidence from the scene and tests performed on that evidence). Appellants did not cite any cases or other authority to support their contention that an accident reconstructionist cannot testify regarding what would have happened if certain factors involved in the collision were different. Accordingly, we conclude the trial court did not abuse its discretion by permitting Crawford to testify regarding what would have occurred if Ali had been traveling 15 miles per hour when the Blakes’ vehicle crossed the median.
F. Testimony from James Wampler
In their final evidentiary challenge, Appellants assert the trial court erred in admitting “James Wampler’s testimony concerning hearsay conversations that allegedly occurred on the day of this accident via CB radio.”
On the day of the collision, Wampler was working as part of a wrecker team and had spent “[b]asically all day … cleaning up accidents between Pecos and Odessa.” Wampler was riding passenger in a wrecker truck as it was traveling east on I-20 when he saw the “bed of [the Blakes’] pickup flying through the air.” According to Wampler, “it looked like the truck was cut in half.”
During his testimony, Wampler was asked, “[d]id you hear any new drivers asking seasoned drivers [on the CB radio] what they should do about driving on the ice?” In response, Wampler testified:
Yes, sir. Basically the — they would ask, you know, hey do you-all think it would be safe to keep going, you know, to push — to push hard to get through the storm? And you’d — you — you could tell they were older drivers. They were telling them, no, because if you push that hard during a bad storm or — like I said, if it’s raining real hard, you can’t see past the hood of your truck, but — or like what they call a rainout or whiteout, just park. No matter where you’re at, pull off in the ditch, whatever, shut it down.
Challenging this response, Appellants assert that “[t]hese hearsay conversations do not fall within any recognized exception.” We reject Appellants’ contention because Wampler’s statement is not hearsay.
Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). “If an out of court statement is not offered for the truth of the matter asserted, but for the purpose of showing what was said, the statement is not hearsay.” Jackson v. State, 889 S.W.2d 615, 616 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d) (citing Livingston v. State, 739 S.W.2d 311, 331 (Tex. Crim. App. 1987)). Here, Wampler’s statements were not offered to prove the truth of the matter asserted, i.e., that drivers who were pushing hard during severe storms should park. Instead, Wampler’s statements tended to prove (1) that other truck drivers said that drivers who were pushing hard during severe storms should park and (2) that Ali would have been on notice thereof if Werner had allowed him to listen to a CB radio. Therefore, Wampler’s testimony is not hearsay. Union Nat. Gas Co. v. Enron Gas Mktg., Inc., No. 14-98-00183-CV, 2000 WL 350546, at *8 (Tex. App.—Houston [14th Dist.] Apr. 6, 2000, no pet.) (“[I]f the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.”) (citing Fed. R. Evid. 801(c) advisory committee notes); Pope v. Darcey, 667 S.W.2d 270, 273 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (“[W]e find that none of [the statements] were admitted for their truth or falsity, but rather simply to show that the statements were made. Thus, the hearsay rule does not bar this testimony.”); accord Sears, Roebuck & Co. v. Kunze, 996 S.W.2d 416, 427 (Tex. App.—Beaumont 1999, pet. denied); City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773, 791 (Tex. App.—Dallas 1992, writ denied); see also In re Morrison, 555 F.3d 473, 483 (5th Cir. 2009) (“Testimony offered to prove that the party had knowledge or notice is not hearsay because ‘the value of the statement does not rest upon the declarant’s credibility and, therefore, is not subject to attack as hearsay.’ ”) (citations omitted); Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1164 (9th Cir. 2009) (“If the significance of an offered statement lies solely in the fact that it was made … the statement is not hearsay.”) (citation omitted); George v. Celotex Corp., 914 F.2d 26, 30 (2d Cir. 1990) (“To be sure, an out of court statement offered not for the truth of the matter asserted, but merely to show that the defendant was on notice of a danger, is not hearsay.”) (citations omitted); Marsee v. U.S. Tobacco Co., 866 F.2d 319, 325 (10th Cir. 1989) (articles regarding health problems were not hearsay because they were offered to prove “whether the defendant had notice of the potential dangers its product posed to consumers” as opposed to “the truth of the matter asserted”); United States v. Cent. Gulf Lines, Inc., 747 F.2d 315, 319 (5th Cir. 1984) (“Evidence introduced to prove merely that notice was given is not offered to prove the truth of the matter asserted therein and, therefore, is not hearsay.”) (citing United States v. Jefferson, 650 F.2d 854, 858 (6th Cir. 1981)); cf. Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 232 (7th Cir. 2021) (reports were not hearsay because they were offered to prove Wexford was on notice of their contents); United States v. Gold, 743 F.2d 800, 817-18 (11th Cir. 1984) (employees’ testimony was admissible as non-hearsay to establish conspirators had reason to know their activities were illegal).
*40 Accordingly, we overrule Appellants’ fifth issue.
VI. The Jury’s Award of Future Medical Care Expenses
Question No. 10 asked the jury “[w]hat sum of money, if paid now in cash, would provide fair and reasonable compensation for Brianna Blake’s injuries, if any, that resulted from the occurrence in question?” The jury was asked to assess compensation across seven categories of damages. One category addressed “[m]edical care expenses that, in reasonable probability, Brianna Blake will incur in the future.” The jury responded “$43,187,994.00”.
Appellants assert in their sixth issue that the jury’s $43,187,994 assessment for future medical care expenses is unsupported by the evidence because “the Blakes failed to offer evidence of the properly calculated present value of those expenses.” To support this contention, Appellants challenge testimony from the Blakes’ retained forensic economist, Robert Johnson, and assert that his “methodology and opinion are badly flawed.”
With respect to Brianna’s future medical care expenses, the jury first heard testimony from Dr. Shelly Savant, who testified with respect to the life care plan she created for Brianna. Dr. Savant described a life care plan as “a medical treatment plan wherein you provide services to a patient and you extend these services over the course of their life expectancy if they need those services for that long.” Dr. Savant testified that she calculated Brianna’s life expectancy to be 72 years and, since Brianna was 16 years old at the time of trial, her life care plan included services for 56 years.
Dr. Savant calculated two options for Brianna’s life care plan. Under the first option, Brianna would “live at home with all of her treatment and attendant care.” Dr. Savant testified that this life care plan, extended over 56 years, would cost $25,274,112.14. Under the second option, Brianna would reside in a residential treatment facility. Dr. Savant testified that this life care plan, extended over 56 years, would cost $33,575,830.14.
According to Dr. Savant, neither her first nor second option took into account inflation or other economic considerations. Dr. Savant said these options were valued as “how much [Brianna’s] care would cost if you paid for it today.”
Afterwards, forensic economist Robert Johnson testified regarding the net discount rate he used to assess the present value of Dr. Savant’s life care plans. According to Johnson, his net discount rate calculated the intersection between (1) the interest rate and (2) two applicable rates of inflation — one that tracked medical inflation and one that tracked non-medical inflation. Johnson testified that his calculations relied on a 4.4% interest rate, which was the statistical average rate for United States government bonds. With respect to medical inflation, Johnson testified that, according to the Medical Consumer Price Index, medical costs would be subject to a 5.3% inflation rate. With respect to non-medical inflation, Johnson testified that the rate would be 3.7% under the Consumer Price Index.
*41 According to Johnson, he took Dr. Savant’s life care plans and separated their items into two categories: one for “those items that are going to grow with the regular Consumer Price Index, CPI,” and a second for “those items that are going to grow with the Medical Consumer Price Index, the MCPI.” Johnson said that “[e]ach singular item in the life care plan either goes into the MCPI or the CPI column and with whatever the frequency [Dr. Savant] said it should be incurred.”
Johnson testified that in Dr. Savant’s first life care option (where Brianna would live at home), the items that would grow with the MCPI totaled $18,128,195 and the items that would grow with the CPI totaled $8,939,570, for a total present value of $27,068,195. With respect to Dr. Savant’s second life care option (where Brianna would live in a residential treatment facility), Johnson testified that the items that would grow with the MCPI totaled $42,560,611 and the items that would grow with the CPI totaled $627,383, for a total present value of $43,187,994.
Challenging this testimony on present value, Appellants contend that “Johnson’s methodology and opinion are badly flawed.”
In personal injury actions, the factfinder must assess damages to accrue in the future on the basis of their dollar amount if they were presently paid in cash. See Mo. Pac. R.R. Co. v. Kimbrell, 160 Tex. 542, 334 S.W.2d 283, 286 (1960). Texas law does not require specific evidence of the discount rate; rather, the factfinder is qualified to make a discount calculation. Jenkins v. Jenkins, 991 S.W.2d 440, 448 (Tex. App.—Fort Worth 1999, pet. denied); Marshall v. Telecomm. Specialists, Inc., 806 S.W.2d 904, 909 (Tex. App.—Houston [1st Dist.] 1991, no writ).
Here, the Blakes presented evidence with respect to the discount rate applicable to Brianna’s future medical expenses in the form of Johnson’s testimony. Other courts have held that present value calculations similar to those employed by Johnson are credible. See, e.g., Smith v. United States, No. 1:16-cv-00690-CL, 2018 WL 5816653, at *5-6 (D. Or. Nov. 6, 2018) (the plaintiff’s expert employed a higher inflation rate with respect to “most medical care items and personal care services” included in the plaintiff’s future medical expenses; the court noted that it found the plaintiff’s expert’s “qualifications, methodology, and calculations … creditable”); Oberson v. United States, 311 F. Supp. 2d 917, 950 (D. Mont. 2004) (to compute the present value of the plaintiff’s life care plan, the court applied different rates of inflation for different categories of medical expenses).
Werner raises several specific arguments with respect to Johnson’s testimony: (1) Johnson “has never applied his negative ‘net discount rate’ theory outside of litigation”; (2) Johnson “did not analyze the future cost of any specific items in Savant’s life care plan”; and (3) Johnson’s inflation rate tracked the price of goods from 1950 through 2016, “a period that consists almost entirely of ‘aberrational years’ of high inflation.” But these arguments generally go to the weight of Johnson’s testimony — a factor for the jury to consider in evaluating the credibility of that testimony. See Onwuteaka v. Gill, 908 S.W.2d 276, 283 (Tex. App.—Houston [1st Dist.] 1995, no writ) (“The weakness of facts in support of an expert’s opinion generally go to the weight of the testimony rather than its admissibility.”). Indeed, these issues and others were addressed in Appellants’ cross-examination of Johnson. Although this conflicting evidence raised a question of fact, it does not render Johnson’s testimony legally insufficient to support the future medical expenses award. See Polk Cty. v. Tenneco, Inc., 554 S.W.2d 918, 924 (Tex. 1977) (attack on figures underlying expert’s opinion goes to the weight rather than admissibility of the testimony); McKinney Indep. Sch. Dist. v. Carlisle Grace, Ltd., 222 S.W.3d 878, 882 (Tex. App.—Dallas 2007, pet. denied) (lack of supporting market data is a factor for the jury to consider in determining the credibility of the expert’s opinion).
*42 Accordingly, we conclude that Dr. Savant’s testimony about Brianna’s life care plans combined with Johnson’s testimony concerning the plans’ present value constitute sufficient evidence to support the jury’s award of $43,187,994.00 for Brianna’s future medical care expenses. We overrule Appellants’ sixth issue.
Conclusion
In conclusion, we overrule Appellants’ issues and affirm the trial court’s July 30, 2018 final judgment.
En banc court consists of Chief Justice Christopher and Justices Wise, Jewell, Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. Justice Hassan authored the En Banc Majority Opinion, in which Justices Bourliot, Zimmerer, Spain, and Poissant joined. Chief Justice Christopher authored an En Banc Dissenting Opinion, in which Justices Wise, Jewell, and Wilson joined as to Part I and Part II.A for the reasons stated in page 6 and footnote 14 of Justice Wilson’s En Banc Dissenting Opinion. Justice Wilson authored an En Banc Dissenting Opinion, in which Justices Wise and Jewell joined.
EN BANC DISSENTING OPINION
Tracy Christopher, Chief Justice
I respectfully dissent. I will not address all of the majority’s opinion1 but will primarily address those parts necessary to show the basis for my conclusion that, for the reasons discussed below, the trial court’s judgment should be reversed and the case remanded, subject only to the Blakes’ right to move for recovery under alternative favorable findings.
I. Ali’s Negligence
Werner and Ali’s primary focus on appeal has been their challenge to the jury’s response to Question 3 of the charge, in which the jury found that Ali’s negligence in the operation of the Werner truck on December 30, 2014, was a proximate cause of the Blakes’ injuries.2 I agree with the majority that the evidence supports a finding that Ali was negligent and that his negligence was a proximate cause of the injuries.
The Supreme Court of Texas has long held it foreseeable that a vehicle may cross into opposing traffic. See Biggers v. Cont’l Bus Sys., Inc., 157 Tex. 351, 303 S.W.2d 359, 363–64 (1957); see also Lofton v. Tex. Brine Corp., 777 S.W.2d 384, 387 (Tex. 1989). Werner and Ali argue that Biggers has been essentially overruled by later Supreme Court cases discussing the substantial-factor component of proximate cause. But, without a more explicit holding from the Supreme Court we are bound by Biggers and its progeny. See also Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560, 565 (1961) (whether the operator’s excessive speed can be a proximate cause of a collision in the operator’s own lane of traffic with a vehicle traveling in the opposite direction “depends upon the facts”).
Werner and Ali argue that the facts of this case are distinguishable from Biggers because Ali was not exceeding the posted speed limit. But, whether a driver’s speed is excessive or is the proximate cause of a collision depends on the circumstances. In Baumler, for example, the court explained that the defendant driver traveling at 55 m.p.h. would not have been using excessive speed, not because this was the posted speed limit, but because “there is no evidence that he, in good health with good eyesight, should have been traveling at a lesser rate of speed on the uncrowded, smooth, level, and straight paved highway on the clear, bright night in his new car with good tires.” Id. at 563–64. In contrast, the court held in Lofton that the intermediate appellate court improperly analyzed the evidence in concluding that the evidence was factually insufficient to support the finding that the speed of the defendant driver was not a proximate cause of a head-on collision. Lofton, 777 S.W.2d at 386. Although the driver in that case was traveling at only 40–50 m.p.h., which was below the posted speed limit,3 there was evidence “that the fog was so thick that at that speed one could not stop or avoid an object in the roadway after seeing it.” Id. at 387. As the court pointed out, “The general danger of driving so fast in fog that one cannot stop or avoid an object in the roadway is foreseeable.” Id. As these cases illustrate, the condition of the driver, the traffic, the weather, and the roads all can affect the speed at which it is foreseeable that a driver will be unable to avoid striking an obstacle that enters the driver’s lane—regardless of how the obstacle came to be there.
II. Werner’s Negligence
*43 In the first two questions of the charge, the jury was asked to consider a total of three theories under which Werner could be found negligent. Werner challenges the sufficiency of the evidence to support the jury’s affirmative answers to those questions, and in addition, Werner complains of charge error as to both questions.
The issue of whether Werner’s charge objections were valid affects the standard by which evidentiary sufficiency is measured. Absent a valid charge objection, the reviewing court measures the sufficiency of the evidence against the charge as given. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (sub. op.). But if the appellant preserved a valid objection to the charge, then the reviewing court must measure evidentiary sufficiency against the charge that should have been given. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2002). Thus, as to each of the first two questions of the charge, I would determine, first, whether Werner’s appellate complaint was preserved by a valid objection, and second, the sufficiency of the evidence to support the jury’s finding.
A. Question 1: Unspecified Negligence
In Question 1, the jury was asked, “Was the negligence, if any, of Werner acting through its employees other than Shiraz Ali a proximate cause of the injuries in question?” In an accompanying instruction, the jury was told not to consider Werner’s negligence, if any, in training or supervising Ali; negligent training and supervision were the subject of a separate question. In a second instruction, the jury was told,
“Negligence,” when used with respect to the conduct of Werner, means failure to use ordinary care, that is, failing to do that which a trucking company of ordinary prudence would have done under the same or similar circumstances or doing that which a trucking company of ordinary prudence would not have done under the same or similar circumstances.
Neither the question nor the accompanying instructions identified any specific duty that Werner, through its employees, was required to fulfill with ordinary care.
Werner argues on appeal that whether a duty exists is a question of law to be decided by the court. Werner points out that the Supreme Court of Texas held in Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499 (Tex. 2017), that in determining what duties an employer has regarding its employees, courts cannot simply require employers “to exercise ordinary care in all circumstances,” but must be “more specific.” Id. at 506, 504.
The majority embarks on a lengthy discussion of whether there is a general duty of negligence in this case. See Part B.1, supra. This directly contradicts the holding of Pagayon, and the analysis itself is flawed. The majority’s analysis fails to specifically identify what the exact duty was—outside of supervision and training. It also puts the burden on Werner to rebut the duty the majority created (that no court has ever recognized). It is not Werner’s obligation to provide evidence of the magnitude of the burden imposed by this court. The record—in support of the duty—must show that it is not burdensome. It is ultimately the plaintiff’s obligation to prove the existence of a duty. See Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989) (“The plaintiff must prove that there is a duty owed to him by the defendant.”); El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987) (“Duty is the threshold inquiry; a plaintiff must prove the existence and violation of a duty owed to him by the defendant to establish liability in tort.”); Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983) (“In order to establish tort liability, a plaintiff must initially prove the existence and breach of a duty owed to him by the defendant.”); Coleman v. Hudson Gas & Oil Corp., 455 S.W.2d 701, 702 (Tex. 1970) (“Any plaintiff must prove the existence and violation of a legal duty owed to him by the defendant in order to establish tort liability.”).
*44 If there is no evidence in the record of certain aspects of the duty, we do not presume them in favor of a duty nor do we fault the defendant with waiver as the majority does in its chart—at best it creates a situation where a new trial is required. See Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 195 (Tex. 2004) (remanding for a new trial for the trial court to specifically identify the duty and tailoring the jury issue to the disputed fact issue). This is the specific holding in Pagayon—the trial court must identify the duty and the jury must be charged on that duty.
1. Werner preserved its appellate complaint that the submission of Question 1 was contrary to Pagayon.
Werner preserved its appellate complaint by objecting to Question 1 in the trial court as follows:
As well, we object to the submission of Question No. 1 because it asserts direct claims against Werner that could include things for which the Texas Supreme Court has not stated there is a general duty to the plaintiffs in these circumstances.
For example, in the Pagayon case, which is 536 S.W.3d 499, which was the Texas Supreme Court case issued in 2017, that court said that it is not enough simply to require employers or others to exercise ordinary care in all circumstances. Texas law requires the courts to be more specific to balance relevant factors in determining the existence, scope, and elements of legal duties….
This question as submitted does not frame what are the duties, what are the elements of the causes of action or cause of action that Werner is accused of committing or omitting as negligence and so for these reasons we object to the submission in Question No. 1.
Despite the preservation of Werner’s complaint in the trial court, and the re-urging of that complaint on appeal, the majority has failed to address it. But see Tex. R. App. P. 47.1 (appellate court’s written opinion must “address[ ] every issue raised and necessary to final disposition of the appeal”). Resolution of this issue is necessary to the final disposition of this appeal because Werner’s objection was correct, as explained below.
2. Because employers do not owe third parties unspecified duties of ordinary care regarding employees’ actions, the trial court reversibly erred in overruling Werner’s objection.
Question No. 1 imposed a general negligence duty on Werner, acting through its employees other than Ali. 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. The only restriction was that jurors were not to consider any negligence by Werner in training or supervising Ali.
The Blakes argue that the trial court did not err in overruling Werner’s objections because a general negligence duty is appropriate. But, the existence of a duty is a question of law for the court to decide, not jurors. See Pagayon, 536 S.W.3d at 503. And courts must determine both “whether a duty exists, and what it is.” Id. at 505–06 (emphasis added). As the Supreme Court of Texas has expressly stated, “It is not enough simply to require employers, or others, to exercise ordinary care in all circumstances.” Id. at 506.
That is precisely what Question 1 did. Each individual juror was free to determine for himself or herself the duties that employees other than Ali owed. Jurors were not even limited to considering duties owed to the Blakes. And 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 the Blakes’ injuries. Thus, the trial court’s error in including this question is reversible. See Tex. R. App. P. 44.1(a).
B. Question 2: Werner’s Duty to Supervise and Train Its Employees
*45 Question 2 of the charge was as follows:
Was the negligence, if any, of Werner acting through its employees other than Shiraz Ali in the manner stated below a proximate cause of the injuries in question?
Consider Werner’ s negligence, if any, in the following
A supervising Shiraz Ali, but only if you find that Shiraz Ali was incompetent or unfit, and Werner knew, or through the exercise of ordinary care should have known, that Shiraz Ali was incompetent or unfit, thereby posing an unreasonable risk of harm to others, and
B training Shiraz Ali
Although I agree with the majority that the submission of this question was not erroneous, I disagree with the majority’s analysis.
1. Werner preserved its Casteel complaint.
“When a single broad-form liability question erroneously commingles valid and invalid liability theories and the appellant’s objection is timely and specific, the error is harmful when it cannot be determined whether the improperly submitted theories formed the sole basis for the jury’s finding.” Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000) (op. on reh’g). “Casteel and its progeny are intended to remedy the trial court’s error in failing to eliminate—or at least to segregate—the factfinder’s consideration of invalid claims.” Zaidi v. Shah, 502 S.W.3d 434, 440 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). To preserve a Casteel complaint, it is sufficient “for the complaining party to make a specific objection to the form of the charge to put the trial court on notice of the alleged error and afford the court an opportunity to correct the error.” Thota v. Young, 366 S.W.3d 678, 690 (Tex. 2012).
Question 2 is a broad-form liability question in which the jury could base liability on negligent supervision or on negligent training. At the charge conference, Werner stated with regard to Question 2, “because it improperly combines different claims of the causes of action, both valid and invalid, we object to the submission of this question.”4 This was sufficient to preserve Werner’s Casteel complaint. See Tex. Comm’n on Human Rights v. Morrison, 381 S.W.3d 533, 536 (Tex. 2012) (per curiam) (“Casteel error may be preserved without specifically mentioning Casteel.”).
But Werner went further, objecting to the form of the question and specifically referencing Casteel:
We also object to this question because this question itself is combining two separate and distinct causes of action in one question. So there’s a Casteel problem within and unique to this question because a “yes” answer from a jury, ten or more of the jury, we won’t know whether ten or more of them or all of them believed both causes of action were supported by the evidence or what they based their findings on. So there’s a Casteel problem in this question by combining these two claims.
This objection was independently sufficient to preserve a Casteel complaint to the form of the question. Not only does the objection specifically point out that “there’s a Casteel problem,” but the objection was sufficient to “put a trial court on notice to submit a granulated question to the jury.” In re A.V., 113 S.W.3d 355, 363 (Tex. 2003).
*46 But there’s still more. A party can preserve a Casteel complaint by objecting that at least one theory included in a multi-theory, broad-form liability question lacks evidentiary support. Thota, 366 S.W.3d at 691. Werner made this objection as well, stating there was no evidence that Werner owed the duties included in the question, no evidence of any breach of such duties, and no evidence that a breach of such duties proximately caused the collision or the Blakes’ injuries.
In Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014), the Supreme Court of Texas stated that “some timely and specific objection must raise the [Casteel] issue in the trial court,” but declined to hold that a party “must object both to the lack of evidence to support submission of a jury question and the form of the submission.” Here, Werner objected to evidentiary sufficiency, and objected to the form of the submission and specifically cited Casteel.
Werner’s comprehensive Casteel objections far exceeded the level of specificity required to preserve its Casteel complaint for appellate review. See State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (charge error is preserved if “the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling”). The majority’s contrary conclusion is frankly inexplicable.
Because Werner’s complaint was preserved, I would determine whether Question 2 truly did combine valid and invalid theories, that is, whether the Blakes proved that Werner was negligent in both supervising and training Ali. I would conclude that both causes of action are recognized under this Court’s precedent, and that there is legally and factually sufficient evidence of both.
III. Proportionate Responsibility
To review, Question 1 erroneously submitted a general negligence question concerning Werner’s employees other than Ali; Question 2 submitted Werner’s negligence in supervising and training Ali; Question 3 submitted Ali’s negligence; and Question 4 submitted Salinas’s negligence.
These liability questions were followed by three proportionate-responsibility questions. In Question 5, under which the Blakes elected to recover, the jury was asked to apportion responsibility for the Blakes’ injuries among “Werner, acting through its employees other than Shiraz Ali,” Ali, and Salinas. The jury found Salinas 16% responsible; Ali 14% responsible; and Werner 70% responsible.
A fatal flaw in this question is that it is predicated on affirmative answers to “Questions 1, 2, 3, or 4 for more than one of those named below,” i.e., Werner, Ali, and Salinas. Werner objected that “there’s a Casteel problem” in that Questions 1, 2, and 3 “permitt[ed] the jurors to consider valid and invalid legal theories for which the defendants owe no duty as well as for which there’s no evidence to support any finding of liability.”
For the reasons I have discussed, Question 1 did indeed submit an invalid legal theory, though both I and the majority would uphold the jury’s findings in response to Question 2. The result, as I would hold, is that the jury’s apportionment of liability in Question 5 was predicated on both valid and invalid theories of liability. Because there is no way to tell the extent to which the jury relied on the invalid theory submitted in Question 1, I would reverse the judgment and remand the case for a new trial.
When the prevailing party obtains favorable findings on more than theory, the trial court renders judgment under the theory that will grant the party the greatest relief. See Boyce Iron Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988). Of course, if the judgment is reversed on appeal, that party may seek recovery under an alternative theory. Id. Thus, if the judgment were reversed for the reasons I have explained, the Blakes could, in lieu of a new trial, file a motion for rehearing en banc to ask the Court to instead render judgment in accordance with the proportionate-responsibility findings in Question 7, which is not predicated on an invalid theory of liability.
IV. Response to Justice Wilson’s Dissent
*47 This Court has long supported a duty on an employer to properly supervise and train its employees. Although Justice Wilson agrees such a duty exists, he supports a rule that would not have allowed a separate comparative question on those issues in light of Werner’s stipulation that Ali was acting in the course and scope of his employment at the time of the accident. I would not impose such a rule inasmuch as the proportionate-responsibility statute requires the trier of fact to determine the percentage of responsibility borne by each claimant, each defendant, each settling person, and each properly designated responsible third party. See Tex. R. Civ. P. 33.003.5
This case is a clear example of why a separate submission is required. Werner argued that Ali was trained to slow down given the conditions, but Werner also argued that the speed Ali was traveling was appropriate. Ali seems to have been given inconsistent information from Werner, some of which contradicted his other training about the appropriate speed to travel in circumstances such as those presented here. A jury could easily conclude that while Ali was negligent in not slowing to a crawl, his employer was more negligent for having contradicted that training.
If the Supreme Court of Texas should agree with Justice Wilson, I would urge the court to tell practitioners and courts the proper way to have submitted this case to the jury. Should the appropriate instruction include both the driver and his employer in one line in the charge as follows:
Was the negligence, if any, of Ali/Werner, a proximate cause of the injuries in question?
Or should the matter be submitted with a combined question and instruction, such as this:
Was the negligence of Werner, if any, a proximate cause of the injuries in question?
Werner’s negligence includes, but is not limited to, the negligence, if any, of Ali. You are instructed that Werner’s negligence cannot be a proximate cause of the injuries in question unless you also find that Ali’s negligence was a proximate cause of the injuries.6
V. Conclusion
Because the majority has failed to address meritorious complaints that were preserved in the trial court, re-urged on appeal, and dictate the reversal of the trial court’s judgment, I respectfully dissent.
EN BANC DISSENTING OPINION
Randy Wilson, Justice
A trucking company and its employee appeal the trial court’s $116 million judgment awarding personal-injury damages to passengers in a pickup truck involved in a collision with a tractor-trailer owned by the company and driven by its employee. This court should (1) adopt the “Admission Rule,” under which an employer’s admission that an employee was acting in the course and scope of his employment when the employee allegedly engaged in negligent conduct bars a party allegedly injured by the employee’s negligence from pursuing derivative theories of negligence against the employer, subject to an exemplary-damage exception; (2) conclude that the trial court erred in denying the employer’s motion for directed verdict as to all derivative theories against it because the employer admitted that its employee was acting in the course and scope of his employment and because the trial evidence was legally insufficient to support the plaintiffs’ gross-negligence allegation; (3) reverse the trial court’s judgment, (4) render judgment that the plaintiffs take nothing as to all of their derivative theories of negligence against the employer, and (5) remand the case to the trial court for a new trial. Instead, the en banc majority affirms the trial court’s judgment, issuing an opinion in which the en banc majority erroneously concludes that even if this court chose to adopt the Admission Rule, the plaintiffs in today’s case would fall within the exemplary-damage exception to this rule because they pleaded gross negligence, even though the evidence was legally insufficient to support a gross-negligence finding. Therefore, I respectfully dissent.
I. The Werner Parties’ First Issue
*48 In the trial court below, appellees/plaintiffs Jennifer Blake, Individually and as Next Friend for Nathan Blake, and as Heir of the Estate of Zackery Blake, Deceased, and Eldridge Moak, in his capacity as Guardian of the Estate of Brianna Blake (collectively the “Blake Parties”) sued appellants/defendants Shiraz A. Ali and Werner Enterprises, Inc. (collectively the “Werner Parties”). In their live pleading, the Blake Parties asserted negligence claims against Ali, alleging that Ali engaged in various acts or omissions that constituted negligence. The Blake Parties also asserted negligence claims against Werner. In addition to asserting that Werner was vicariously liable for Ali’s negligence under the doctrine of respondeat superior, the Blake Parties asserted various derivative theories of negligence against Werner. The Blake Parties alleged that Werner, in the operation and maintenance of its vehicles and in its hiring, training, supervising, and directing of its employees and agents, owed a duty to them and the public at large to make use of Werner’s property and carry out Werner’s operations in a reasonably prudent manner, using ordinary care, skill, and expertise as would an ordinarily prudent commercial motor carrier under the same or similar circumstances, so as not to cause foreseeable and unreasonable risks of harm to others. The Blake Parties asserted that Werner engaged in numerous acts or omissions constituting negligence, including the following:
• failing to adequately train Ali on how to operate an eighteen-wheeler by failing to take various actions,
• failing to adequately supervise Ali while he was operating Werner’s commercial motor vehicle,
• assigning and dispatching Ali, who did not have the training and experience to operate a commercial motor vehicle safely under winter-driving conditions, to operate a commercial motor vehicle as part of a driver team on a “Just in Time” run, which Werner knew or should have known would require Ali to operate the Werner tractor-trailer without supervision (because his trainer, Ackerman, would have to be sleeping most of the time Ali was driving) through a large part of west Texas where freezing rain, ice accumulation, and extremely hazardous driving conditions were predicted, creating an unreasonably dangerous situation that posed an extreme risk of serious injury or death to others,
• failing to monitor the weather and road conditions on Interstate 20 after Ali and Ackerman set out on the run from Dallas to Kettleman City,
• failing to advise Ali of the extremely hazardous road and weather conditions in which he was driving,
• failing to instruct Ali to take Interstate 40 rather than Interstate 20 due to the hazardous road and weather conditions predicted for and existing on Interstate 20,
• failing to instruct Ali to slow to a crawl and exit the roadway as soon as it was safe to do so upon encountering the icy road conditions, and
• prohibiting Ali from monitoring the CB radio and Outside Air Temperature gauge for road and weather conditions.
The Blake Parties also alleged that Werner’s conduct constituted gross negligence that was a proximate cause of the occurrence in question, resulting in damages to Jennifer Blake and her three children, Nathan, Brianna, and Zackery (collectively the “Blakes”). The Blake Parties sought actual damages against Ali and Werner, as well as exemplary damages against Werner.
During trial Werner stipulated that Ali was acting in the course and scope of his employment at Werner. After the close of all the evidence, the trial court denied various motions for directed verdict asserted by the Werner Parties, including a motion for directed verdict as to the derivative-liability theories of recovery against Werner on the grounds that Werner admitted Ali was acting in the course and scope of his employment at Werner and there was no evidence that Werner was grossly negligent.
The jury answered yes to each of the four liability questions. In response to Question 5, the jury found the following percentages of responsibility: 70% for Werner acting through its employees other than Ali, 14% for Ali, and 16% for Salinas. Because the jury did not unanimously answer “yes” to any of the first three questions, the jury did not answer any of the questions regarding gross negligence and exemplary damages. The trial court rendered a final judgment based on the jury’s liability and damage findings and based on the percentages of responsibility found by the jury in response to Question 5. The amounts of actual damages plus prejudgment interest awarded in the trial court’s judgment against Werner total approximately $92 million. After adding post-judgment interest, the total amount of the judgment against Werner currently exceeds $116 million.
*49 On appeal this case was submitted to a three-justice panel with oral argument on October 23, 2019. More than twenty months later in July 2021, five justices on this court voted sua sponte to order en banc consideration in the first instance, without the issuance of any panel opinions, even though the panel had generated a majority opinion and a dissenting opinion, each of which stood ready to be issued. See Werner Enterprises v. Blake, No. 14-18-00967-CV, 2021 WL 3164005, at *1 (Tex. App.—Houston [14th Dist.] Jul. 27, 2021) (published en banc order). The en banc majority did not give any reasons for using this exceedingly rare procedure at such a late stage of the proceedings. See id. The court granted the parties leave to supplement their appellate briefing before this case was submitted to the en banc court on October 28, 2021. By a 5-to-4 vote, the en banc court ordered this submission to be without oral argument, denying without explanation the Werner Parties’ request for oral argument to the en banc court. In its opinion today, the en banc majority continues to maintain its silence as to why the court went directly to en banc consideration without oral argument and without allowing the panel opinions to issue. I disagree with the en banc majority that the en banc criteria are satisfied, but even presuming that the en banc criteria are satisfied, the en banc majority has not explained why it did not let the panel opinions issue and then grant en banc reconsideration, which has been the standard practice of this court in such situations. I dissented to the grant of en banc consideration in the first instance for the reasons stated in my Dissent to Order and in Chief Justice Christopher’s Dissent to Order, which I joined. See Werner Enterprises, 2021 WL 3164005, at *1–2 (Christopher, C.J., dissent to order); id. at *2–15 (Wilson, J., dissent to order).
Under their first appellate issue, the Werner Parties argue that (1) the trial evidence is legally and factually insufficient to show that Ali owed any duty to the Blakes; (2) the evidence is legally and factually insufficient to support any finding that Ali was negligent at the time of the occurrence in question or on December 30, 2014 (the “Accident Date”); (3) the evidence is legally and factually insufficient to support a finding that any negligence of Ali proximately caused the injuries in question, the accident in question, or the occurrence in question; and (4) Zaragoza “Trey” Salinas, III’s losing control of his pickup truck1 was the sole proximate cause of the accident in question. I agree with and join Part I of Chief Justice Christopher’s en banc dissenting opinion, in which she addresses these points. See ante at –––– – –––– (Christopher, C.J., en banc dissenting opinion). Though I do not agree with the en banc majority’s analysis of these arguments, I agree that the arguments lack merit and that the first issue should be overruled.
II. The Blake Parties’ derivative theories of negligence against Werner fail as a matter of law under the Admission Rule.
In their third issue, the Werner Parties note that the Supreme Court of Texas has not yet ruled definitively on the existence, elements, and scope of negligence theories against an employer for the negligent training, negligent supervision, negligent hiring, or negligent retention of an employee, or for related negligence theories, although intermediate courts of appeals have done so. See JBS Carriers v. Washington, 564 S.W.3d 830, 842 (Tex. 2018). The Werner Parties assert that, even presuming such theories generally are viable, the negligence theories against Werner based on the acts or omissions of Werner employees other than Ali that the trial court submitted to the jury in Question 1 or Question 2 (the “Question 1 & 2 Theories”) fail as a matter of law for various reasons. In arguing one of these reasons, the Werner Parties assert that this court should adopt the rule that the Question 1 & 2 Theories failed as a matter of law because Werner admitted at trial that Ali was acting in the course and scope of his employment at Werner, thus subjecting Werner to vicarious liability under the doctrine of respondeat superior for all damages proximately cause by Ali’s negligence. In this opinion the term “Admission Rule” refers to the following rule: if an employer admits that an employee was acting in the course and scope of his employment when the employee allegedly engaged in negligent conduct, that admission bars a party allegedly injured by the employee’s negligence from pursuing derivative theories of negligence against the employer.2
*50 Before addressing whether this court should adopt the Admission Rule, it is helpful to specify some nomenclature for the analysis. Under the theory of respondeat superior, an employer is vicariously liable for the negligent acts or omissions of its employee if the employee’s negligent acts or omissions were within the course and scope of the employee’s employment. See Ineos USA v. Elmgren, 505 S.W.3d 555, 565 (Tex. 2016). Thus, when an employee acts negligently within the course and scope of employment, respondeat superior permits a person injured by that negligent conduct to sue the employee’s employer directly to recover all damages to the injured person proximately caused by the employee’s negligence. See id.
Vicarious-liability theories such as respondeat superior are not the only means by which an injured party may seek to hold an employer liable for the negligent conduct of an employee. Injured parties may also seek this end by asserting various derivative theories of liability. See Nat’l Union Fire Ins. Co. v. Merchants Fast Motor Lines, 939 S.W.2d 139, 142 (Tex. 1997). Derivative theories are like vicarious theories in that under both theories, the injured party may hold an employer liable for the negligent conduct of an employee. See Blaine v. National-Oilwell, L.P., No. 14-09-00711-CV, 2010 WL 4951779, at *8–9 (Tex. App.—Houston [14th Dist.] Dec. 7, 2010, no pet.). Thus, vicarious and derivative theories are both dependent on a finding that the employee’s negligence proximately caused damage to the injured party. See id. But, derivative theories are different because they involve the additional requirement that the injured party prove some type of negligence by the employer separate from the employee’s negligence, which is not required with vicarious theories like respondeat superior. See id.
Under derivative theories like negligent training, negligent supervision, negligent hiring, and negligent retention, an employer may be liable for the negligent acts or omissions of an employee if the employer engaged in certain negligent conduct.3 See id. (negligent hiring, negligent training, and negligent retention theories) (mem. op.); Verinakis v. Medical Profiles, Inc., 987 S.W.2d 90, 97–98 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (negligent hiring and negligent supervision theories). Because these theories require negligent conduct by the employer, the employer’s liability under these theories is not vicarious. See Blaine, 2010 WL 4951779, at *8–9; Verinakis, 987 S.W.2d at 97–98. These theories only operate to make the employer liable for an employee’s negligence, and even if an employer engages in negligent conduct under these theories, an injured party cannot recover damages against the employer if the employee’s negligence did not proximately cause damage to the injured party. See Alford v. Singleton, No. 14-17-00504-CV, 2018 WL 5621472, at *4–5 (Tex. App.—Houston [14th Dist.] Oct. 30, 2018, no pet.) (mem. op.); Blaine, 2010 WL 4951779, at *8–9; Verinakis, 987 S.W.2d at 97–98. Therefore, these derivative theories do not describe an independent basis for recovering against the employer.4 See Alford, 2018 WL 5621472, at *4–5; Blaine, 2010 WL 4951779, at *8–9.
Under certain circumstances, an injured party in an accident involving an employee may have a viable negligence claim against the employer without tying the recovery to any negligent conduct by the employee. For example, an employer might have negligence liability independent of an employee/driver’s negligence if the employer knew or should have known that one of the employer’s vehicles had defective brakes, yet the employer allowed the employee to drive the vehicle in the course and scope of employment without warning the employee about the defective brakes. See Ferrer v. Okbamicael, 390 P.3d 836, 845–46 (Colo. 2017), superseded by statute as stated in, Brown v. Long Romero, 495 P.3d 955, 957 n.2 (Co. 2021). If the brakes failed and caused an accident injuring a third party, it might be determined that the employee did nothing wrong but that the employer’s negligence proximately caused the accident and the third party’s injuries. See id. In such a situation, even if no negligence of the employee caused damage to the injured third party, the third party still may recover against the employer for the damages caused by the employer’s independent negligence. See id. Such independent theories are a third category of theories under which an injured party may seek to hold an employer liable. Sometimes courts or parties may refer to derivative theories and independent theories collectively as “direct theories,” in contrast to vicarious theories. This opinion refers to each of the three categories separately: vicarious, derivative, or independent.
*51 An employer’s admission that an employee was acting in the course and scope of his employment when the employee allegedly engaged in negligent conduct constitutes an admission that under the doctrine of respondeat superior, the employer is vicariously liable for the damages proximately caused by the employee’s negligence. See Ineos USA, 505 S.W.3d at 565. Even if a negligent driver is an employee acting outside the course and scope of employment, the employer may nevertheless be liable under one of the derivative theories. See Green v. Ransor, Inc., 175 S.W.3d 513, 518–19 (Tex. App.—Fort Worth 2005, no pet.). Similarly, an “employer” who hires an independent contractor may be liable for physical harm caused by the contractor’s tortious conduct if the plaintiff proves that the “employer” negligently hired the contractor. See Verinakis, 987 S.W.2d at 97–98; Mireles v. Ashley, 201 S.W.3d 779, 782 (Tex. App.—Amarillo 2006, no pet.). But, derivative theories are dependent on the employee’s negligence, so under any of the derivative theories, the injured party must still prove negligence on the part of the employee or contractor. See Blaine, 2010 WL 4951779 at *9.
A. This court should adopt the Admission Rule.
The parties have not cited and research has not revealed a case from the Supreme Court of Texas or this court in which the court decides whether to apply the Admission Rule. In JBS Carriers, the Supreme Court of Texas disposed of the case without having to address petitioners’ argument based on the Admission Rule. See JBS Carriers, Inc., 564 S.W.3d at 841, 843. In Adams Leasing Company v. Knighton, this court concluded that as to the third and fourth issues, appellants had failed to preserve error in their motion for new trial, as required by the procedural rules then in effect. See 456 S.W.2d 574, 576 (Tex. Civ. App.—Houston [14th Dist.] 1970, no writ). Because of this failure to preserve error, the Adams Leasing court stated that “Points of error numbers 3 and 4 are not properly before this Court for consideration and both are overruled.” After overruling the issues based on failure to preserve error, the court made a statement relating to the fourth issue, without citing any authority. See id. (stating, “Nor may a defendant charged with gross negligence in the entrustment of a vehicle preclude proof thereof by stipulating agency on the part of the person to whom such vehicle is entrusted.”). Because the fourth issue was not before this court due to failure to preserve error, this gratuitous statement in Adams Leasing was not necessary to the determination of the case and was an obiter dictum. See Air Routing Intern. v. Britannia Airways, Ltd., 150 S.W.3d 682, 692–93 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (holding that statement regarding the merits in prior case was an obiter dictum because the court had found that the objection was waived and therefore the prior case did not affect the applicable legal standard). An obiter dictum is not binding and has no precedential value. See Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 399–400 (Tex. 2016); Air Routing Intern., 150 S.W.3d at 692–93. Thus, whether this court should adopt the Admission Rule is an issue of apparent first impression in this court that the en banc majority should address.
1. The Development of the Admission Rule
Maryland’s highest court first articulated the Admission Rule in Houlihan v. McCall. See 197 Md. 130, 78 A.2d 661, 664–65 (1951). In that case, plaintiffs who were injured in a traffic accident sued both the truck driver involved and the driver’s employer, seeking liability against the employer based on respondeat superior, negligent hiring, and negligent retention. Id. at 664. Before trial, the employer admitted an agency relationship with the truck driver, under which the employer was vicariously liable for the truck driver’s negligence. Id. The trial court admitted evidence of the driver’s driving record at trial, and the jury ultimately found for the plaintiffs. Id. at 664–65. Maryland’s highest court reversed, reasoning that because the employer admitted the driver was its agent, “it was quite unnecessary to pursue the alternative theory [of negligent hiring or retention] in order to hold the corporate defendant [liable].” Id. at 665. The court concluded the trial court erred by admitting the driver’s record because where agency is admitted, an employee’s driving record “can serve no purpose except to inflame the jury.” Id. at 666.
*52 Three years after Houlihan, the Supreme Court of California applied the same rationale to a negligent-entrustment theory in Armenta v. Churchill. See 42 Cal.2d 448, 267 P.2d 303, 308–09 (1954). There, a roadside worker was killed when a dump truck backed over him. Id. at 305. The decedent’s family sued the truck driver for negligence and his employer for negligent entrustment. Id. at 308. The employer admitted that the driver was acting in the course of his employment and acknowledged the employer’s vicarious liability for any tort liability of the driver. Id. The Armenta court affirmed the trial court’s exclusion of evidence of the driver’s driving history. Id. at 309. The court reasoned that negligent entrustment represented an alternative theory under which plaintiffs sought to impose upon the employer the same liability as might be imposed upon the employee-driver. Id. Because the employer’s admission of vicarious liability removed any issue of the employer’s liability for the driver’s alleged negligence, the Armenta court concluded there remained no material issue as to which evidence of the employee’s driving history could be legitimately directed. Id. at 308–09. Thus, the Armenta court concluded that the trial court properly excluded this evidence. Id.
The most frequently cited case articulating the Admission Rule is McHaffie v. Bunch, a case involving facts ironically similar to today’s case. See 891 S.W.2d 822 (Mo. 1995). McHaffie was a passenger in a vehicle that crossed the median of an interstate highway and collided with a tractor-trailer. Id. at 824. McHaffie’s guardian brought negligence claims against the driver of the vehicle and the driver of the tractor-trailer. Id. The guardian also asserted vicarious-liability theories against the owner-lessor and the operator-lessee of the tractor-trailer, seeking to hold each liable for the tractor-trailer driver’s alleged negligence. Id. The operator-lessee of the tractor-trailer admitted its vicarious liability for the driver’s alleged negligence, conceding the driver was acting in the course and scope of his employment at the time of the collision. Id. The guardian claimed that the operator-lessee of the tractor-trailer negligently hired and supervised its driver and presented evidence that the operator-lessee did not require the driver to have adequate experience, testing, training, and medical evaluations before driving its trucks. Id. The jury assessed percentages of fault as to the various parties, including ten percent collectively to the driver, the owner-lessor, and the operator-lessee of the tractor-trailer based on the driver’s negligence and the owner-lessor’s and operator-lessee’s vicarious liability, as well as ten percent to the operator-lessee based on negligent hiring. Id. at 825. On appeal, the defendants argued that it was improper to allow the guardian to pursue both respondeat-superior and negligent-hiring theories against the operator-lessee. Id.
The McHaffie court agreed and adopted the Admission Rule as the “majority view.” Id. at 826. The court observed that derivative theories such as negligent entrustment and negligent hiring are forms of imputed liability, just as respondeat superior is a form of imputed liability, because the employer’s duty is dependent on and derivative of the employee’s conduct. Id. The court reasoned that to allow multiple theories for attaching liability to a single party for the negligence of another “serves no real purpose,” unnecessarily expends the “energy and time of courts and litigants,” and risks the introduction of potentially inflammatory, irrelevant evidence into the record. Id. The McHaffie court also explained that once an employer concedes it is vicariously liable for any negligence of its employee, the employer becomes strictly liable to the plaintiff for damages attributable to the employee’s conduct, regardless of the percentage of fault as between the employer and the employee. Id. The McHaffie court noted that potential exceptions might exist to the Admission Rule, such as (1) when the injured party has a viable independent theory of negligence against the employer, and (2) when the injured party seeks exemplary damages against the employer based on the employer’s conduct that is the basis of a derivative theory. Id. But, the McHaffie court did not have to address the existence of any such exceptions to the Admission Rule. Id.
*53 Five Texas intermediate courts of appeals have adopted the Admission Rule. See Rosell v. Central West Motor Stages, 89 S.W.3d 643, 654–55 (Tex. App.—Dallas 2002, pet. denied); Estate of Arrington v. Fields, 578 S.W.2d 173, 178–79 (Tex. App.—Tyler 1979, writ ref’d n.r.e.); Rodgers v. McFarland, 402 S.W.2d 208, 210–11 (Tex. Civ. App.—El Paso 1966, writ ref’d n.r.e.); Luvual v. Henke & Pillot, Division of Kroger Co., 366 S.W.2d 831, 838 (Tex. Civ. App.—Houston [1st Dist.] 1963, writ ref’d n.r.e.); Patterson v. East Tex. Motor Freight Lines, 349 S.W.2d 634, 636 (Tex. Civ. App.—Beaumont 1961, writ ref’d n.r.e.). The parties have not cited and research has not revealed an opinion in which a Texas court has rejected the Admission Rule.
The highest courts of various other states have adopted the Admission Rule. See Elrod v. G&R Const., 275 Ark. 151, 628 S.W.2d 17, 19 (1982); Armenta, 267 P.2d at 309; Ferrer, 390 P.3d at 841–47; Wise v. Fiberglass Sys., 110 Idaho 740, 718 P.2d 1178, 1181–82 (1986); Sedam v. 2JR Pizza Enters., 84 N.E.3d 1174, 1177–79 (Ind. 2017); Houlihan, 78 A.2d at 665; Nehi Bottling Co. v. Jefferson, 226 Miss. 586, 84 So.2d 684, 686 (1956); McHaffie, 891 S.W.2d at 824–26; Bogdanski v. Budzik, 408 P.3d 1156, 1161–64 (Wyo. 2018). Various intermediate appellate courts and United States District Courts in other states and the District of Columbia have done the same. See Swift v. Old Dominion Freight Lines, 583 F.Supp.3d 1125, 1134–35 (W.D. Tenn. 2022) (applying Tennessee law); Greene v. Grams, 384 F.Supp.3d 100, 102–06 (D. D.C. 2019) (applying District of Columbia law); Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. Dist. Ct. App. 1977); Ortiz v. N.M. State Police, 112 N.M. 249, 814 P.2d 117, 120 (N.M. Ct. App. 1991).5
At 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. See Bancpass v. Highway Toll Admin., 863 F.3d 391, 401 (5th Cir. 2017) (holding that when there is no binding precedent from the Supreme Court of Texas on an issue of Texas law, a federal court must make a prediction of how the Supreme Court of Texas would resolve the issue); Graham v. Lewis, 2023 WL 138923, at *2–3 (N.D. Tex. Jan. 9, 2023) (predicting that Supreme Court of Texas would adopt the Admission Rule); Ordonez v. Ausby, 2023 WL 310442, at *2–5 (W.D. Tex. Jan. 18, 2023); Robinson v. Melton Truck Lines, 2022 WL 174520, at *7 (W.D. Tex. Jan. 18, 2022); Ochoa v. Mercer Transp. Co., 2018 WL 7505640, at *3 (W.D. Tex. Dec. 12, 2018); Fuller v. Werner Enters., 2018 WL 3548886, at *2–3 (N.D. Tex. July 24, 2018); Sanchez v. Transp. Intern. Tamaulipecos, 2017 WL 3671089, at *2–3 (S.D. Tex. July 20, 2017); Sanchez v. Swift Transp. Co., 2016 WL 10587127, at *4 (W.D. Tex. Oct. 4, 2016); Williams v. McCollister, 671 F.Supp.2d 884, 888–89 (S.D. Tex. 2009).
2. Rationales for the Admission Rule
*54 Derivative theories provide an alternate means of recovery when vicarious liability is unavailable against an employer because the employee was not acting within the scope of his employment at the time of his alleged negligence. See Richard A. Mincer, The Viability of Direct Negligence Claims Against Motor Carriers in the Face of an Admission of Respondeat Superior, 10 Wyo. L. Rev. 229, 232–33 & n.9 (2010).
But, if the employer has admitted that under the doctrine of respondeat superior the employer is subject to vicarious liability for all damages proximately caused by the employee’s negligence, the derivative theories become superfluous. See id. Significantly, the derivative theories only operate to make the employer liable for the damages proximately caused by the employee’s negligence, and even if an employer engages in negligent conduct under these theories, an injured party cannot recover damages against the employer if the employee’s negligence did not proximately cause damage to the injured party. See Alford, 2018 WL 5621472, at *4–5; Blaine, 2010 WL 4951779, at *8–9; Verinakis, 987 S.W.2d at 97–98. An employer’s negligent conduct in hiring, training, supervising, retaining, or entrusting is not a theory wholly independent of the plaintiff’s injuries, unconnected to the employee’s negligence. See Alford, 2018 WL 5621472, at *4–5; Blaine, 2010 WL 4951779, at *8–9; Verinakis, 987 S.W.2d at 97–98. Thus, the derivative theories effectively impute the employee’s liability for his negligent conduct to the employer, in a manner similar to vicarious liability. See McHaffie, 891 S.W.2d at 825–26. Under either respondeat superior or a derivative theory, the liability of the employer is dependent on the negligence of the employee. See id. at 826. This is true regardless of the percentage of fault as between the employer and the employee. See id. If the employer admits that the employee’s negligence is to be imputed to the employer, there is no need to prove that the employer is liable, and thus any derivative theories are duplicative and unnecessary. See id. If both theories proceed after the employer admits its vicarious liability, a jury would be allowed to assess or apportion a principal’s liability twice. See id.
The pursuit of both a vicarious-liability theory and a derivative theory against an employer after it has conceded respondeat-superior liability for the damages proximately caused by the employee’s negligence is also superfluous to the plaintiff’s recovery; liability under the derivative theory will not increase the plaintiff’s recovery. If an employer admits respondeat-superior liability, the employer becomes liable for one hundred percent of the damages attributable to the employee’s negligence. See Blaine, 2010 WL 4951779, at *8–9; Verinakis, 987 S.W.2d at 97–98; McHaffie, 891 S.W.2d at 826. The fact that a plaintiff is the “master of her complaint” and may assert multiple theories of attaching liability to an employer for the employee’s conduct does not mean that a plaintiff should be permitted to introduce evidence supporting those multiple theories where such evidence would serve only to establish that which is already undisputed: that the employer is liable for the damages attributable to the employee’s negligence. See Ferrer, 390 P.3d at 845.
*55 Two other reasons weigh heavily in favor of adopting the Admission Rule. First, evidence necessary to prove derivative theories is likely to be unfairly prejudicial to the employee. See Houlihan, 78 A.2d at 664–65 (stating that “where agency is admitted, [evidence of a driver’s record] can serve no purpose except to inflame the jury.”); Clooney, 352 So.2d at 1220 (asserting that “[s]ince the [counts asserting derivative theories] impose no additional liability but merely allege a concurrent theory of recovery, the desirability of allowing these theories is outweighed by the prejudice to the defendants”).
In addition, there is a danger that a jury will assess the employer’s liability twice or award duplicative damages to the plaintiff if it hears evidence of both a negligence claim against an employee and derivative theory against the employer. See Mincer, supra, 10 Wyo. L. Rev. at 238; McHaffie, 891 S.W.2d at 826. This is incompatible with the theory of respondeat-superior liability, under which the liability of the employer is fixed by the employee’s liability, and the plaintiff’s comparative fault does not differ based on the number of defendants. See Blaine, 2010 WL 4951779, at *8–9; Verinakis, 987 S.W.2d at 97–98; Ferrer, 390 P.3d at 845. The Admission Rule prevents the fault of one party from being assessed twice and thereby avoids a “plainly illogical” result. See Ferrer, 390 P.3d at 845; McHaffie, 891 S.W.2d at 827. Today’s case illustrates this point. Without considering any derivative theories, the jury assessed Salinas’s percentage of responsibility at 55% and Ali’s percentage at 45%. When the derivative theories submitted under Question 1 were added to the jury’s consideration, but not the negligent-training and negligent-supervision theories, the jury set Salinas’s percentage of responsibility at only 38%, Ali’s percentage at 32%, and Werner acting through employees other than Ali at 30%. Under this assignment of percentages of responsibility, Werner’s total responsibility increased 17%. Finally, in the allocation of responsibility on which the trial court rendered judgment, Salinas’s percentage of responsibility dropped to 16%, and Werner’s total responsibility increased to 84%. Thus, the jury’s consideration of all derivative theories effectively increased Werner’s total percentage of responsibility by 39%, and by pushing Werner’s percentage over 50% effectively made Werner liable for 100% of the damages recoverable by the Blake Parties, rather than the 45% of the Blake Parties’ damages under the percentages of responsibility set by the jury without considering any derivative theories. See Tex. Civ. Prac. & Rem. Code Ann. § 33.013(b).
3. Compatibility with Civil Practice and Remedies Code Chapter 33
The Blake Parties argue that Chapter 33 of the Civil Practice and Remedies Code precludes application of the Admission Rule. Section 33.003 provides as follows:
(a) The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person’s causing or contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these:
(1) each claimant;
(2) each defendant;
(3) each settling person; and
(4) each responsible third party who has been designated under Section 33.004.
(b) This section does not allow a submission to the jury of a question regarding conduct by any person without sufficient evidence to support the submission.
*56 Tex. Civ. Prac. & Rem. Code Ann § 33.003 (West, Westlaw through 2021 C.S.). The Blake Parties assert that section 33.003 requires that the jury determine the percentage of responsibility of a defendant/employer such as Werner, when the trial evidence raises a fact issue as to whether the defendant/employer by negligent act or omission caused or contributed to cause in any way the harm for which the plaintiffs seek recovery of damages. See id. The Blake Parties argue that the Admission Rule conflicts with section 33.003 by preventing the jury from determining a percentage of responsibility for an employer such as Werner based on the employer’s negligent conduct under one or more derivative theories.
Courts that have addressed this issue have concluded that in enacting section 33.033, the Texas Legislature did not abrogate the Admission Rule or mandate that the jury determine a percentage of responsibility for defendants who are allegedly liable under theories of vicarious or derivative liability. See Williams, 671 F.Supp.2d at 889–92 (applying Texas law); Conkle v. Chery, No. 03-08-00379-CV, 2009 WL 483226 at *4–5 (Tex. App.—Austin 2009, no pet.); Rosell, 89 S.W.3d at 656–57; Loom Craft Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431, 432 (Tex. App.—Texarkana 1992, no writ); William D. Underwood & Michael D. Morrison, Apportioning Responsibility in Cases Involving Claims of Vicarious Derivative, or Statutory Liability for Harm Directly Caused by the Conduct of Another, 55 Baylor L. Rev. 617, 634–36, 642–50 (2003), but see Bedford v. Moore, 166 S.W.3d 454, 459–63 (Tex. App.—Fort Worth 2005, no pet.). If under the Admission Rule, an employer is vicariously liable for its employee’s negligence and all derivative theories against the employer are barred, section 33.003 does not mandate that the jury determine a percentage of responsibility for the vicariously liable employer. See Williams, 671 F.Supp.2d at 889–92; Conkle, 2009 WL 483226 at *4–5; Rosell, 89 S.W.3d at 656–57; Loom Craft Carpet Mills, Inc., 823 S.W.2d at 432; William D. Underwood & Michael D. Morrison, supra, 55 Baylor L. Rev. at 634–36, 642–50, but see Bedford v. Moore, 166 S.W.3d 454, 459–63.
If an employer has admitted respondeat-superior liability for any negligence of its employee, the employer is liable for the damages proximately caused by the employee’s negligence, regardless of the comparative fault between the employee and the employer. See Williams, 671 F.Supp.2d at 890; Conkle, 2009 WL 483226 at *4; McHaffie, 891 S.W.2d at 826; William D. Underwood & Michael D. Morrison, supra, 55 Baylor L. Rev. at 634–36. The majority rule from other states supports the proposition that statutes like Chapter 33 do not preclude the adoption or application of the Admission Rule. See, e.g., Diaz v. Carcamo, 51 Cal.4th 1148, 126 Cal.Rptr.3d 443, 253 P.3d 535, 544 (2011) (reaffirming Armenta after the adoption of comparative negligence and stating that “the objective of comparative fault is to achieve an equitable allocation of loss. That objective is not served by subjecting the employer to a second share of fault in addition to that assigned to the employee and for which the employer has accepted liability”); Ferrer, 390 P.3d at 847 (stating that “we join other courts in concluding that the [Admission Rule] accords with a comparative negligence regime”); Sedam, 84 N.E.3d at 1178–79 (stating that “[t]he Comparative Fault Act provides that the jury must apportion fault to those “who caused or contributed to cause the alleged injury” … The [Admission Rule] is consistent with this mandate because, as already stated, the [derivative claims] and respondeat superior claims are derived from the same negligent act of the employee”); McHaffie, 891 S.W.2d at 826 (holding that the Admission Rule applies regardless of the comparative fault of the employer versus the employee); Swift, 583 F.Supp.3d at 1133–35 (holding that the Admission Rule applies under Tennessee law despite Tennessee’s system of comparative fault).
*57 The en banc majority should conclude that neither section 33.003 nor the proportionate responsibility regime of Civil Practice and Remedies Code chapter 33 precludes this court from adopting or applying the Admission Rule.
4. Adopting the Admission Rule
For the reasons stated above, the en banc majority should join the other Texas intermediate courts of appeals that have adopted the Admission Rule.6 See Rosell, 89 S.W.3d at 654–55; Estate of Arrington, 578 S.W.2d at 178–79; Rodgers, 402 S.W.2d at 210–11; Luvual, 366 S.W.2d at 838; Patterson, 349 S.W.2d at 636.
B. The en banc court should recognize an exemplary-damage exception to the Admission Rule.
Several courts applying Texas law and courts from other jurisdictions have concluded that the Admission Rule does not apply in cases in which the injured party pursues a negligence claim against the driver, asserts respondeat superior and derivative theories against the employer, and seeks exemplary damages against the employer. See Monroe v. Freight All Kinds, Inc., 2020 WL 6589000, at *2–3 (W.D. Mo. 2020) (applying Missouri law); Wilson v. Image Flooring, 400 S.W.3d 386, 391–94 (Mo. App. 2013); Williams, 671 F.Supp.2d at 888–89 (applying Texas law); Rosell, 89 S.W.3d at 654–55; Estate of Arrington, 578 S.W.2d at 178–79. The Blake Parties argue that, if this court adopts the Admission Rule, the court should recognize the exemplary-damage exception and conclude that this case falls within that exception because the Blake Parties sought exemplary damages against Werner based on its alleged gross negligence. The Werner Parties assert that this court should follow courts from other jurisdictions that have adopted the Admission Rule but concluded that no exemplary-damage exception to that rule exists. See Greene, 384 F.Supp.3d at 104; Ferrer, 390 P.3d at 847–48.
If an injured party seeks exemplary damages against the employer, the injured party must prove by clear and convincing evidence that the harm resulted from the employer’s gross negligence, malice, or fraud. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a), (b) (West, Westlaw through 2021 C.S.); Medina v. Zuniga, 593 S.W.3d 238, 247 (Tex. 2019). In a case tried to a jury, exemplary damages may be awarded only if the jury unanimously finds that the injured party satisfied this burden of proof. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(d) (West, Westlaw through 2021 C.S.). In many cases, proving the driver’s conduct, for which the employer has admitted vicarious liability, will not by itself suffice to prove by clear and convincing evidence that the injured party’s harm resulted from the employer’s gross negligence, malice, or fraud. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a), (b); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex. 1997) (stating that “the general rule in Texas” is set out in Restatement of Torts section 909, which provides that “[p]unitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, (a) the principal authorized the doing and the manner of the act, or (b) the agent was unfit and the principal was reckless in employing him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the employer or a manager of the employer ratified or approved the act”). Thus, an injured party may need to rely on the alleged conduct of the employer on which the injured party bases derivative theories as a basis for proving that the injured party’s harm resulted from the employer’s gross negligence, malice, or fraud. If so, the derivative theories would not be superfluous, undermining a main basis for the Admission Rule.
*58 If the injured party proves an employer’s gross negligence, malice, or fraud by clear and convincing evidence, the employer should be liable for exemplary damages, even if the employer admits to respondeat superior. Nonetheless, even if derivative theories are not superfluous because of the injured party’s request for exemplary damages, the other concerns discussed in section II.A.2. above still apply. Evidence necessary to prove derivative theories still is likely to be unfairly prejudicial to the employee. See Houlihan, 78 A.2d at 664–65; Clooney, 352 So.2d at 1220. A danger still exists that the jury will assess the employer’s liability twice or award duplicative damages to the plaintiff if it hears evidence of both a negligence claim against an employee and a derivative theory against the employer. Mincer, supra, 10 Wyo. L. Rev. at 238. If a court recognizes an exemplary-damage exception to the Admission Rule, a danger exists that the exception may swallow the rule. See id. at 263. If an injured party only needs to allege gross negligence, malice, or fraud and seek exemplary damages to avoid application of the Admission Rule, many injured parties may avoid the Admission Rule by so pleading.
The en banc majority should conclude that an exemplary-damage exception to the Admission Rule exists if the injured party seeks exemplary damages against the employer but that the exception does not apply if the trial evidence is legally insufficient to support a finding by clear and convincing evidence that the harm resulted from the employer’s gross negligence, malice, or fraud. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a); Robinson, 2022 WL 174520, at *2–5, *7 (recognizing exemplary-damage exception to Admission Rule under Texas law but granting summary judgment as to derivative theories under the Admission Rule because plaintiff did not raise fact issue as to plaintiff’s gross-negligence allegation); Ochoa, 2018 WL 7505640, at *2–3 (recognizing exemplary-damage exception to Admission Rule under Texas law but granting summary judgment as to derivative theories under the Admission Rule because trial court had granted summary judgment as to plaintiff’s gross-negligence allegation); Sanchez, 2016 WL 10587127, at *2, *4 (same as Ochoa); Cahalan v. May Trucking, 2012 WL 12915496, at *4–6 (D. Wyo. 2012) (holding under Wyoming law that an exemplary-damage exception to Admission Rule did not apply because there was no evidence that would support an award of exemplary damages against the employer); Rosell, 89 S.W.3d at 654–55 (recognizing exemplary-damage exception to Admission Rule under Texas law); Estate of Arrington, 578 S.W.2d at 178–79 (same as Rosell); Mincer, supra, 10 Wyo. L. Rev. at 260–63.
The en banc majority doesn’t decide whether this court should adopt the Admission Rule. Rather the majority concludes that it need not address this issue because even if the Admission Rule were adopted, the rule wouldn’t apply to today’s case because the Blake Parties pled gross negligence and sought exemplary damages. However, the trial evidence was legally insufficient to support a gross-negligence finding, and the trial court erred in denying Werner’s motion for directed verdict. So is that all it takes to avoid the Admission Rule per the majority: merely seek exemplary damages? And even if the trial evidence is legally insufficient to support a recovery of exemplary damages, you still get to pursue derivative theories of negligence against the employer even though the employer stipulates to respondeat-superior liability? Yet that’s precisely what the majority holds. The majority takes the easy way out and doesn’t really decide whether the Admission Rule applies.
C. This court should not make its decisions regarding the Admission Rule apply prospectively only.
Though the Blake Parties have briefed various issues regarding the Admission Rule, they have not requested that this court make its rulings on these issues apply prospectively only. The en banc majority should address whether this court should exercise its discretion to make the decisions regarding the Admission Rule prospective only, so that they would not apply to today’s case.
*59 Judicial decisions generally apply retroactively. Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 515 (Tex. 1992). Occasionally, a court decides to exercise its discretion to depart from this rule by making its decision apply prospectively only. See id. at 515, 518. In Carrollton-Farmers Branch Independent School District, the Supreme Court of Texas discussed and applied the Chevron analysis to determine whether its judicial decision would have only prospective application. See Carrollton-Farmers Branch Indep. Sch. Dist., 826 S.W.2d at 515–521 (applying Chevron Oil Co. v. Huson, 404 U.S. 97, 105–09, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)). The Chevron analysis is a three-step process:
First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.
Second, … [the court] must … weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.
Finally, [the court must] weig[h] the inequity imposed by retroactive application, for where a decision of [the court] could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the injustice or hardship by a holding of nonretroactivity.
Id. at 518 (quoting Chevron Oil Co., 404 U.S. at 106–07, 92 S.Ct. 349).
This court’s decisions regarding the Admission Rule would not overrule any past precedent, and they would not decide an issue whose resolution was not clearly foreshadowed. In the trial court and on appeal, the parties have briefed various issues regarding the Admission Rule. At trial, the Blake Parties submitted evidence in an attempt to prove by clear and convincing evidence that the harm with respect to which the Blake Parties sought recovery of exemplary damages resulted from Werner’s gross negligence. Before this lawsuit was filed, five Texas intermediate courts of appeals had adopted the Admission Rule. See Rosell, 89 S.W.3d at 654–55; Estate of Arrington, 578 S.W.2d at 178–79; Rodgers, 402 S.W.2d at 210–11; Luvual, 366 S.W.2d at 838; Patterson, 349 S.W.2d at 636. A federal district court in 2021 decided not to apply the Admission Rule to negligent-supervision claims against the United States of America under the Federal Tort Claims Act based on the considerations present in that case, which are not present in today’s case.7 See Holcombe v. United States, 2021 WL 67217, at *27–28 (W.D. Tex. Jan. 6, 2021). The Holcombe decision issued after the parties fully briefed this appeal. See id. Other than that case, research has not revealed any decision applying Texas law in which the court declined to apply the Admission Rule. This court’s decisions regarding the Admission Rule would not “establish a new principle of law” as necessary for this court to exercise its discretion to limit the application of the decisions under the first step of the Chevron analysis. See Galloway v. Atrium Medical Center, 558 S.W.3d 316, 322–23 (Tex. App.—Houston [14th Dist.] 2018, no pet.). In addition, retrospective application of this court’s decisions regarding the Admission Rule would further the operation of this rule, and applying these decisions retroactively would not produce substantial inequitable results. See id. Under the applicable legal standard, it would not be appropriate for this court to exercise its discretion to make the decisions regarding the Admission Rule apply prospectively only. See id.
*60 The en banc majority suggests in various parts of its opinion that the Admission Rule may not be applied to this case because this court had not yet adopted this rule when the trial court denied the Werner Parties directed-verdict motion based on the Admission Rule. See ante at ––––, ––––, –––– (Hassan, J., en banc majority). These suggestions contradict binding precedent under which judicial decisions based on the common law generally apply retroactively. See Carrollton-Farmers Branch Indep. Sch. Dist., 826 S.W.2d at 515; Galloway, 558 S.W.3d at 322–23. Notwithstanding the en banc majority’s intimations to the contrary, even if the law is unsettled or the issue is one of first impression, an appellate court may hold that a trial court erred or abuse its discretion if the trial court’s legal decision is incorrect under the appellate court’s interpretation of the law, even though no precedent bound the trial court to follow this interpretation when the trial court ruled. See In re Silver, 540 S.W.3d 530, 538 (Tex. 2018); Galloway, 558 S.W.3d at 322–23.
D. The en banc majority should hold that as to the derivative theories the trial court reversibly erred in denying Werner’s motion for directed verdict based on the Admission Rule.
The Blake Parties asserted negligence claims against Ali. They asserted that at the time of Ali’s negligence, Werner employed Ali, and Ali was acting in the course and scope of his employment with Werner, so that Werner is vicariously liable for Ali’s negligence under the doctrine of respondeat superior. The Blake Parties also asserted various Question 1 & 2 Theories against Werner. The Blake Parties alleged that the Werner Parties’ conduct constituted gross negligence that was a proximate cause of the occurrence in question resulting in damages to the Blake Parties. The Blake Parties sought actual damages against Ali and Werner, as well as exemplary damages against Werner.
The claims against Ali, the Question 1 & 2 Theories, and the Blake Parties’ requests for exemplary damages were tried in an unbifurcated jury trial. At trial Werner stipulated that Ali was acting in the course and scope of his employment with Werner when Ali engaged in the allegedly negligent conduct, thus admitting that under the doctrine of respondeat superior, Werner is vicariously liable for any negligent acts or omissions by Ali. See Ineos USA, LLC, 505 S.W.3d at 565. At the close of the evidence at trial, Werner moved for a directed verdict as to all Question 1 & 2 Theories against Werner on the grounds that Werner admitted Ali was acting in the course and scope of his employment at Werner and there was no evidence at trial that Werner was grossly negligent. The trial court denied Werner’s motion. Under the Admission Rule, Werner’s admission that Ali was acting in the course and scope of his employment with Werner when Ali engaged in the allegedly negligent conduct bars the Blake Parties from pursuing the derivative theories against Werner unless the exemplary-damage exception applies. See Cahalan, 2012 WL 12915496, at *4–6; Williams, 671 F.Supp.2d at 888–89; Rosell, 89 S.W.3d at 654–55; Estate of Arrington, 578 S.W.2d at 178–79; Rodgers, 402 S.W.2d at 210–11; Luvual, 366 S.W.2d at 838; Patterson, 349 S.W.2d at 636.
As mentioned above, this court should determine that the exemplary-damage exception to the Admission Rule does not apply if the trial evidence is legally insufficient to support a finding that clear and convincing evidence proves the harm with respect to which the injured party seeks recovery of exemplary damages resulted from the employer’s gross negligence, malice, or fraud. The Blake Parties did not seek exemplary damages based on any alleged malice or fraud by Werner. Instead, they sought exemplary damages based on Werner’s alleged gross negligence. Over Werner’s objection that there was no evidence to support the submission, the trial court asked the jury in Question 13 whether the jury unanimously found by clear and convincing evidence that the harm to the Blakes resulted from Werner’s gross negligence. Because the jury did not unanimously answer any of the liability questions, the jury followed the trial court’s instruction and did not answer this question.
*61 On appeal, the Werner Parties argue that the derivative theories have no validity based on the Admission Rule. The Blake Parties assert that even if the court adopts the Admission Rule, the exemplary-damage exception applies because they sought exemplary damages based on Werner’s alleged gross negligence. The Werner Parties assert that (1) no evidence supported a recovery by the Blake Parties of exemplary damages; (2) the Blake Parties’ trial strategy of inundating the jury with prejudicial arguments and evidence related to derivative theories against Werner rested largely on the legal question of whether they had a viable gross-negligence claim against Werner; (3) the Blake Parties did not possess a valid gross-negligence claim; (4) the trial court erred in allowing the Blake Parties to use their gross-negligence allegation to evade the Admission Rule; (5) there was no evidence of the required elements of gross negligence in today’s case; and (6) the Werner Parties’ request for a directed verdict based on the Admission Rule should have been granted. The Werner Parties have sufficiently briefed a challenge to the trial court’s denial of their motion for directed verdict as to all Question 1 & 2 Theories against Werner on the grounds that Werner admitted Ali was acting in the course and scope of his employment at Werner and there was no evidence at trial that Werner was grossly negligent. See Perry v. Cohen, 272 S.W.3d 585, 588 (Tex. 2008) (holding court of appeals erred by concluding appellant failed to assign error as to special-exceptions order because, under liberal construction of appellant’s brief, appellant challenged the order by presenting argument challenging basis of this order, though appellant did not expressly challenge the order). Thus, this court should decide whether the trial evidence was legally sufficient to prove by clear and convincing evidence that the harm with respect to which the Blake Parties sought recovery of exemplary damages resulted from Werner’s gross negligence. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a).
This legal sufficiency review is conducted under the “clear and convincing” evidence standard. See U-Haul Intern., v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). “ ‘Clear and convincing’ means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Civ. Prac. & Rem. Code Ann § 41.001(2) (West, Westlaw through 2021 C.S.); Waldrip, 380 S.W.3d at 137. The Blake Parties had the burden to prove by clear and convincing evidence that the harm with respect to which the Blake Parties sought recovery of exemplary damages resulted from Werner’s gross negligence. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a). “ ‘Gross negligence’ means “an act or omission: (A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.” Tex. Civ. Prac. & Rem. Code Ann § 41.001(11); see Waldrip, 380 S.W.3d at 137.
Thus, gross negligence consists of both objective and subjective elements. See Waldrip, 380 S.W.3d at 137. Under the objective component, “extreme risk” is not a remote possibility or even a high probability of minor harm, but rather the likelihood of the Blakes’ serious injury. See id. The subjective prong, in turn, requires that Werner knew about the risk, but that the Werner’s acts or omissions demonstrated indifference to the consequences of its acts. See id. An act or omission that is only thoughtless, careless, or not inordinately risky cannot be grossly negligent. See Medina, 593 S.W.3d at 249.
In determining whether the trial evidence was legally sufficient to prove by clear and convincing evidence that the harm with respect to which the Blake Parties sought recovery of exemplary damages resulted from Werner’s gross negligence, this court should look at all the trial evidence in the light most favorable to the Blake Parties to determine whether a reasonable trier of fact could have formed a firm belief or conviction that this proposition was true. See Southwestern Bell Telephone Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004). To give appropriate deference to the factfinder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the Blake Parties means that this court must assume that all disputed facts have been resolved in favor of the Blake Parties if a reasonable factfinder could do so. See id. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. See id. This does not mean that a court must disregard all evidence that does not support this proposition. See id. Disregarding undisputed facts that do not support this proposition could skew the analysis of whether there is clear and convincing evidence. See id. If, after conducting its legal sufficiency review of the trial evidence, this court determines that no reasonable factfinder could form a firm belief or conviction that the harm with respect to which the Blake Parties sought recovery of exemplary damages resulted from Werner’s gross negligence, then this court must conclude that the evidence is legally insufficient. See id.
*62 During closing argument, counsel for the Blake Parties pointed to the following as evidence of gross negligence: (1) section 2.6.2 of the Texas Commercial Motor Vehicle Drivers Handbook states that on icy roads a commercial driver must reduce the speed “to a crawl” and then stop driving as soon as the driver can safely do so, yet witnesses from Werner testified that section 2.6.2. is a guideline not a rule or standard, thus indicating that Werner thinks Werner and its drivers do not have to follow section 2.6.2. and that Werner and its drivers do not follow this section; (2) despite an accident prior to the accident in question with facts similar to the accident in question, Werner continued to use a business model in which it puts its least-experienced drivers in the most challenging circumstances, pairing them with trainers on “Just in Time” runs in which there is additional pressure to be on-time and in which the least-experienced driver often must be unsupervised because the trainer must be in the truck-tractor’s sleeper berth; (3) one of Werner’s safety directors testified that he was happy with what Ali did and that in less than one-half of one percent of serious crashes involving a Werner truck could Werner or its driver have done something that reasonably would have prevented the crash, thus showing that in 199 out of every 200 serious crashes Werner says “We did nothing wrong”; (4) Werner’s head of safety testified that Werner did nothing wrong and that Werner has not learned any safety lessons from the accident in question; (5) another one of Werner’s safety directors testified that Werner has made no changes in its truck-driving schools as a result of the accident in question; and (6) a lawyer for Werner testified that Werner made perfect decisions. After considering the trial evidence under the appliable standard of review, this court should conclude that the trial evidence was legally insufficient to prove by clear and convincing evidence that the harm with respect to which the Blake Parties sought recovery of exemplary damages resulted from Werner’s gross negligence.8 See Medina, 593 S.W.3d at 247–50; Reeder v. Wood Cnty. Energy, 395 S.W.3d 789, 797 (Tex. 2012); Waldrip, 380 S.W.3d at 137–41; Garza, 164 S.W.3d at 627; Robinson, 2022 WL 174520, at *2–4; Ruelas v. Western Truck & Trailer Maintenance, 2019 WL 4060891, at *7–9 (W.D. Tex. 2019); Cahalan, 2012 WL 12915496, at *4–6. Therefore, the exemplary-damage exception does not apply, and this court should hold that the trial court erred in denying Werner’s motion for directed verdict as to all derivative theories against Werner on the grounds that Werner admitted Ali was acting in the course and scope of his employment at Werner and there was no evidence at trial that Werner was grossly negligent.9 See Medina, 593 S.W.3d at 247–50; Robinson, 2022 WL 174520, at *2–4; Ruelas, 2019 WL 4060891, at *7–9; Nat’l Security Fire & Cas. Co. v. Hurst, 523 S.W.3d 840, 845–46 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (holding that trial court erred in denying appellant’s motion for directed verdict and submitting a claim to the jury despite appellant’s argument that the claim was precluded as a matter of law by the defense of estoppel); Cahalan, 2012 WL 12915496, at *4–6.
The Blake Parties contend that various independent theories against Werner were submitted to the jury and were a basis of the jury’s verdict, including theories based on Werner’s alleged negligence in (1) having no system to inform Werner drivers of adverse weather and road conditions, (2) selecting the “dangerous route” followed by the tractor-trailer Ali drove on the Accident Date; (3) failing to notify Ali of a winter storm warning update, and (4) prohibiting Ali from using his citizen’s band radio and his outside temperature gauge. The Blake Parties cite no cases holding that any of these theories constitutes an independent theory. To the extent that one or more of the Question 1 & 2 Theories was an independent theory, the trial court did not err in denying Werner’s motion for directed verdict because the Admission Rule does not apply to independent theories.10 See Ferrer, 390 P.3d at 845–46; Mincer, supra, 10 Wyo. L. Rev. at 260.
*63 The en banc majority states that alleging a defendant engaged in gross negligence “entitle[s] Texas plaintiffs to seek exemplary damages, a theory that was presented to the jury.” Ante at –––– (Hassan, J., en banc majority). Though a plaintiff alleging gross negligence may seek exemplary damages, that pursuit must come to an end and the gross-negligence issue must not be presented to a jury if there is legally insufficient evidence of gross negligence at trial and the defendant moves for a directed verdict on that ground, as happened in today’s case. See Richard v. Wiatt, No. 14-22-00236-CV, 2023 WL 3071161, at *2–6 (Tex. App.—Houston [14th Dist.] Apr. 25, 2023, no pet. h.) (holding that trial court properly granted directed verdict as to plaintiff’s gross-negligence theory). A directed verdict eliminates a gross-negligence theory and prevents that theory from being submitted to the jury. See id. at *1–2. A trial court has a duty to grant a motion for directed verdict as to a theory of recovery supported by legally insufficient evidence. See Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791, 794 (1955); Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337, 343 (Tex. App.—Houston [14th Dist.] 2003, no pet.). The trial evidence was legally insufficient to prove by clear and convincing evidence that the harm with respect to which the Blake Parties sought recovery of exemplary damages resulted from Werner’s gross negligence. See Medina, 593 S.W.3d at 247–50; Robinson, 2022 WL 174520, at *2–4; Ruelas, 2019 WL 4060891, at *7–9. The trial court had a duty to grant Werner’s motion for directed verdict based on the Admission Rule. See Rounsaville, 276 S.W.2d at 794; Cherqui, 116 S.W.3d at 343. The en banc majority asserts that the Blake Parties’ gross-negligence claim was viable when the trial court denied Werner’s motion for directed verdict, but a gross-negligence claim as to which a trial court is duty-bound to grant a directed verdict is not viable.11 See ante at –––– (Hassan, J., en banc majority); Rounsaville, 276 S.W.2d at 794; Richard, 2023 WL 3071161, at *2–6; Cherqui, 116 S.W.3d at 343.
The en banc majority also asserts that Werner has failed to contend on appeal that the Blake Parties’ gross-negligence theory was not viable when the trial court denied Werner’s motion for directed verdict. Ante at –––– (Hassan, J., en banc majority). In doing so, the en banc majority mischaracterizes the Werner Parties’ appellate contentions. The Werner Parties contend on appeal that (1) “[the Blake Parties’] strategy for inundating the jury with prejudicial arguments and evidence related to Werner rested largely on the legal question of whether they had a viable gross negligence claim against Werner”; (2) “[the Blake Parties] did not possess a legally valid gross negligence claim, and the trial court erred in allowing them to push that claim to evade the Admission Rule”; (3) “[t]here is simply no evidence of the required elements of gross negligence here”; (4) “[the Werner Parties’] request for a directed verdict based on the “Admission Rule” should have been granted—it was the only possible hope for salvaging the trial. Without it, the damage to the record and the unfairness of the trial process could not possibly be undone”; (5) “[t]o the extent it exists, the gross-negligence exception to the Admission Rule does not apply”; and (6) “[t]he baseless direct negligence claims were unquestionably harmful and justify a new trial.”
The en banc majority states that Werner moved for a directed verdict based upon “the alleged absence of evidence capable of supporting ‘the submission in this case of a direct liability claim against Werner because here the fact that Mr. Ali was in the course and scope of his employment as a driver for Werner is not disputed.’ ” Ante at –––– (Hassan, J., en banc majority) (quoting part of Werner’s directed-verdict motion). The en banc majority then suggests that Werner is materially misstating the law by failing to mention the exemplary-damage exception to the Admission Rule. See id. The en banc majority indicates that Werner’s motion for directed verdict relied upon the Admission Rule but did not address the exemplary-damage exception. A quote from Werner’s motion for directed verdict shows that this is not the case. In this motion Werner asserted:
*64 We also move for directed verdict on the grounds that there’s no evidence to support the submission in this case of a direct liability claim against Werner because here the fact that Mr. Ali was in the course and scope of his employment as a driver for Werner is not disputed. He was. He was our driver. He was driving our truck that day and there’s no evidence that Werner itself was grossly negligent. And I will make a separate motion for directed verdict about that in a minute or two depending how quickly I talk, but we don’t believe there’s any evidence to support the submission of a direct liability claim against Werner in this case, so we move for directed verdict.
After going back on the record following an off-the-record discussion, counsel for Werner summarized the motion that he had made before the discussion as follows: “I had moved for a directed verdict on the claims against Werner for direct liability because in this case Mr. Ali’s employment, he was in the course and scope at the time of this accident. That’s not disputed. And there’s no evidence that Werner was independently grossly negligent in this case, so we move for directed verdict on those claims.” The trial court then denied Werner’s motion for directed verdict. Werner has not ignored or overlooked the exemplary-damage exception to the Admission Rule.
The en banc majority does not address whether the trial evidence was legally sufficient to prove by clear and convincing evidence that the harm with respect to which the Blake Parties sought recovery of exemplary damages resulted from Werner’s gross negligence. Instead, the en banc majority states that even if the majority chose to adopt the Admission Rule, the majority would conclude that the Blake Parties’ allegation of gross negligence suffices to trigger the exemplary-damage exception to the Admission Rule, even if the trial evidence was legally insufficient to support a gross-negligence finding.12 See ante at –––– (Hassan, J., en banc majority). Allowing a pleading of gross negligence to trigger an exception to the Admission Rule even though no legally sufficient evidence of gross negligence has been admitted at trial effectively nullifies the Admission Rule in this context. If the Admission Rule bars derivative claims in a case in which the plaintiffs do not allege gross negligence, the result should be the same if the plaintiffs allege gross negligence but the evidence at trial is legally insufficient to support this allegation. See Robinson, 2022 WL 174520, at *2–5, *7; Ochoa, 2018 WL 7505640, at *2–3; Sanchez, 2016 WL 10587127, at *2, *4; Cahalan, 2012 WL 12915496, at *4–6.
*65 The en banc majority claims that its version of the exemplary-damage exception maintains the uniformity of this court’s jurisprudence in light of this court’s opinion in the Adams Leasing case. See ante at –––– (Hassan, J., en banc majority); Adams Leasing, 456 S.W.2d at 576 (stating, “Nor may a defendant charged with gross negligence in the entrustment of a vehicle preclude proof thereof by stipulating agency on the part of the person to whom such vehicle is entrusted.”). As discussed above, this gratuitous statement in the Adams Leasing opinion was not necessary to the determination of the case and was an obiter dictum; therefore, this statement does not form a part of this court’s jurisprudence. See Air Routing Intern., 150 S.W.3d at 692–93. In any event, this statement does not conflict with the adoption of the Admission Rule with an exemplary-damage exception that does not apply if the trial evidence is legally insufficient to support a gross-negligence finding. See Adams Leasing, 456 S.W.2d at 576. The Adams Leasing court correctly stated that a stipulation by an employer that its driver was acting as its agent does not render inadmissible evidence otherwise admissible as part of the plaintiff’s attempt to prove the employer’s alleged gross negligence. See Adams Leasing, 456 S.W.2d at 576. If an employer does not want evidence relevant only to its alleged gross negligence or to a derivative theory to be admissible at trial, then the employer may admit that its employee was acting in the course and scope of employment and file a motion for summary judgment asserting there is no evidence of gross negligence and seeking summary judgment as to any derivative theories under the Admission Rule. See Robinson, 2022 WL 174520, at *2–5, *7; Sanchez, 2016 WL 10587127, at *2, *4; Cahalan, 2012 WL 12915496, at *4–6. However, so long as a plaintiff’s exemplary-damage request and a derivative theory are before the court, then the employer’s admission that the employee was acting as its agent or in the course and scope of employment does not render inadmissible otherwise admissible evidence as part of the plaintiff’s attempt to prove the employer’s alleged gross negligence or a derivative theory.
The en banc majority also appears to conclude that a directed verdict may only be based on the legal insufficiency of the trial evidence to support an essential element of the challenged liability theory and that a directed verdict may not be based on a legal rule that bars recovery under the challenged liability theory based on the trial evidence. This conclusion is erroneous. See Hurst, 523 S.W.3d at 845–46 (holding that trial court erred in denying appellant’s motion for directed verdict and submitting a claim to the jury despite appellant’s argument that the claim was precluded as a matter of law by the defense of estoppel); Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189–90 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding that the trial court did not err in granting directed verdict as to certain breach-of-fiduciary-duty claims based on the rule against dividing or fracturing a negligence claim against an attorney, without any determination that the trial evidence was legally insufficient to support an essential element of the breach-of-fiduciary-duty claims at issue).
The trial court based its judgment in part on the jury’s finding in response to Question 1, under which the Blake Parties argued various derivative theories, and the jury’s finding in response to Question 2 based on the derivative theories of negligent supervision theory and negligent training. If the trial court had granted Werner’s motion for directed verdict as to the derivative theories, the trial court would not have submitted the derivative theories in Questions 1 and Question 2 to the jury. The trial court erred in not granting Werner’s motion for directed verdict as to these derivative theories. In rendering judgment, the trial court relied on the jury’s determination of percentages of responsibility in Question 5, based on the jury’s consideration of Werner’s negligence as found by the jury in response to Questions 1 and 2. After considering the Blake Parties’ many derivative theories the jury assessed Werner’s responsibility at 70%, Ali’s responsibility at 14%, and Salinas’s responsibility at 16% in Question 5. In Question 7, considering only the responsibility of Ali and Salinas, the jury assessed Ali’s responsibility at 45% and Salinas’s responsibility at 55%. If the trial court had granted the motion for directed verdict, the Blake Parties would not have been able to argue at length during closing arguments about Werner’s alleged negligence based on derivative theories, and the jury would not have answered Questions 1, 2, 5, and 6. These arguments and questions concentrated the jury’s attention on the derivative theories and probably inflamed the jury against Werner, as shown by the jury’s finding in Question 5 (on which the trial court rendered judgment) that Werner’s negligence under the derivative theories caused or contributed to the Blake Parties’ injuries five times as much as Ali’s negligence did and more than four times as much as Salinas’s negligence did. See Shick v. Ill. Dep’t of Human Servs., 307 F.3d 605, 611–14 (7th Cir. 2002). A reasonable probability exists that the trial court’s error affected the jury’s damage findings in response to Questions 8 through 12. See Mincer, supra, 10 Wyo. L. Rev. at 238; Shick, 307 F.3d at 611–14; McHaffie, 891 S.W.2d at 826. Thus, the trial court’s error in denying Werner’s directed-verdict motion as to the derivative theories probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a); Kroger Co. v. Guinn, No. 05-04-01464-CV, 2005 WL 1950887, at *5 (Tex. App.—Dallas Aug. 16, 2005, no pet.) (mem. op.). The trial court reversibly erred in denying Werner’s motion for directed verdict as to the derivative theories and in failing to render judgment that the Blake Parties take nothing as to all of their derivative theories, including the negligent-training and negligent-supervision theories.13 The trial court’s error affects all of the matter in controversy and does not affect a part that is severable without unfairness to the parties; therefore, this court may not order a new trial only as to the part affected by the error. See Tex. R. App. P. 44.1(b); Ginn v. Pierce, 595 S.W.3d 762, 768–69 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). This court should sustain the Werner Parties’ Admission Rule arguments discussed above, reverse the trial court’s judgment, render judgment that the Blake Parties take nothing as to all of their derivative theories of negligence, and remand the case to the trial court for a new trial, as required by the interests of justice.14 See Tex. R. App. P. 43.3; Ginn, 595 S.W.3d at 768–69; Kroger Co., 2005 WL 1950887, at *5.
*66 Instead, the en banc majority affirms the trial court’s judgment, issuing an opinion in which the en banc majority erroneously concludes that even if this court were to adopt the Admission Rule, the exemplary-damage exception to this rule would apply because the Blake Parties pleaded gross negligence, even though the trial evidence was legally insufficient to support a gross-negligence finding. As Chief Justice Christopher points out in her dissenting opinion, the en banc majority also applies a negligence-duty analysis that conflicts with the Supreme Court of Texas’s requirement that courts imposing a negligence duty on employers must specifically state the negligence duty in question and may not be apply a general-negligence duty. See ante at –––– – –––– (Hassan, J., en banc majority); ante at –––– – –––– (Christopher, C.J., en banc dissenting opinion); Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 506 (Tex. 2017).
III. Conclusion
The en banc majority should adopt the Admission Rule and conclude that an exemplary-damage exception to the Admission Rule exists if the injured party seeks exemplary damages against the employer based on the employer’s alleged gross negligence, malice, or fraud, but that the exception does not apply if the trial evidence is legally insufficient to support a finding that clear and convincing evidence proves the harm with respect to which the injured party seeks recovery of exemplary damages resulted from the employer’s gross negligence, malice, or fraud. Under the applicable legal standard, it is not appropriate for this court to exercise its discretion to make its decisions regarding the Admission Rule apply prospectively only.
The trial court reversibly erred in denying Werner’s motion for directed verdict as to derivative theories and in failing to render judgment that the Blake Parties take nothing as to all of the derivative theories, including the negligent-training and negligent-supervision theories. This court should sustain the Werner Parties’ Admission Rule arguments, reverse the trial court’s judgment, render judgment that the Blake Parties take nothing as to all of their derivative theories of negligence, and remand the case to the trial court for a new trial.15 Because the en banc majority instead affirms the trial court’s judgment, I respectfully dissent.
All Citations
Footnotes
- We acknowledge Appellants also contend (1) Ali had no duty to actively monitor the weather conditions on I-20 and (2) the Blakes improperly relied upon title 49, section 392.14 of the Code of Federal Regulations (and section 2.6.2 of the Texas Commercial Motor Vehicle Drivers Handbook) to prove Ali’s duties. Even when we accept these arguments arguendo, neither one negates Ali’s pre-existing duty to operate the Werner Truck at a speed at which an ordinarily prudent person would operate it under the same or similar circumstances. See Golleher, 651 S.W.2d at 332-33; Adams, 584 S.W.2d at 717; Hokr, 489 S.W.2d at 930; Fitzgerald, 423 S.W.2d at 191; Billingsley, 400 S.W.2d at 794.
- The trial court instructed the jury that “ ‘Proximate cause,’ when used with respect to the conduct of Shiraz Ali, means a cause that was a substantial factor in bringing about an injury, and without which cause such injury would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a commercial truck driver using ordinary care would have foreseen that the injury, or some similar injury, might reasonably result therefrom. There may be more than one proximate cause of an injury.”
- Question 1 asked: “Was the negligence, if any, of Werner acting through its employees other than Shiraz Ali a proximate cause of the injuries in question?”
- Question 2 asked: “Was the negligence, if any, of Werner acting through its employees other than Shiraz Ali in the manner stated below a proximate cause of the injuries in question?”
- Question 3 asked: “Was the negligence, if any, of Shiraz Ali in the operation of the Werner truck on December 30, 2014, a proximate cause of the injuries in question?” At the charge conference, the trial court overruled various objections by Appellants to Question 3, including the following: (1) the trial court should change each reference in Question 3 to “commercial truck driver” to “person”; (2) the trial court should delete “on December 30, 2014” in Question 3 and replace it with “at the time of the occurrence in question”; and (3) the question should refer to the “occurrence in question” rather than the “injuries in question.” We need not address whether the trial court erred in overruling any of these objections, because the trial evidence is legally and factually sufficient to support a finding that Ali’s negligence was a proximate cause of either the occurrence in question or the injuries in question, regardless of whether the trial court erred in overruling either of the first two objections.
- Compare Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 157 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“Duradril and Ward did not make a timely, specific objection to the broad-form submission of the applicable jury questions (1, 2, and 6) on the ground that they contained an invalid theory, e.g., Dcan’s lack of capacity to bring suit.”) and Tesfa v. Stewart, 135 S.W.3d 272, 275-276 (Tex. App.—Fort Worth 2004, pet. denied) (“Appellants did not object in any respect to the form of the damages question, did not contend that some proper element of damages was improperly comingled in a list with a damage element supported by no evidence, and did not plainly inform the trial court that any specific element of damages — as opposed to every element of damages — should not be included in the broad-form submission.”) with Roberts v. Whitfill, 191 S.W.3d 348, 357 (Tex. App.—Waco 2006, no pet.) (“Roberts did object, stating that there should be separate damage questions for the antitrust claim and for the fraud and breach of fiduciary duty claim because lost profits were recoverable only on the antitrust claim and other damages might be recoverable under any of the three claims.”); accord Murphy v. Am. Rice, Inc., No. 01-03-01357-CV, 2007 WL 766016, at *14 (Tex. App.—Houston [1st Dist.] Mar. 9, 2007, no pet.) (mem. op.) (counsel’s objection “was not a specific objection that the trial court not submit specific jury questions because (1) the Delaware-incorporated ARI had no standing to assert the Texas-incorporated ARI’s pre-bankruptcy claims, which had allegedly been assigned to the indenture trustee, or (2) ARI had no “standing” (or capacity) to sue for conversion of RCH’s property or funds. Murphy’s oral statements do not reveal, for example, to which jury questions he objected or to what aspects of each cause of action reflected in those questions he objected.”). Cf. Barnhart v. Morales, 459 S.W.3d 733, 748 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (specificity within the context of Casteel objections to broad-form questions concerning damages must place the trial court on notice “that the element of future mental anguish damages should not be submitted in a single broad-form submission along with future physical evidence”); Simmons v. Bisland, No. 03-08-00141-CV, 2009 WL 961522, at *8 (Tex. App.—Austin Apr. 9, 2009, pet. denied) (“Simmons and Lindig argue on appeal that there is no evidence to support an award for mental anguish, but did not object to the inclusion of this element of damages in the broad-form question before it was read to the jury and therefore waived any legal sufficiency challenge regarding mental anguish.”); Tesfa, 135 S.W.3d at 276 (“Additionally, Appellants’ no-evidence objections to every element of damages obscured the complaint they now make: that special question number 3 improperly comingled some valid damage elements with an improperly submitted disfigurement element of damages.”) (citing Davis v. Sheerin, 754 S.W.2d 375, 385 (Tex. App.—Houston [1st Dist.] 1988, writ denied) (holding charge objection of “no evidence, insufficient evidence, no predicate, comment on the evidence” did not preserve appellant’s comment-on-the-weight-of-the-evidence complaint because appellant failed to explain how question constituted comment on the evidence and only included this among other stock objections)).
- Cf. Thota, 366 S.W.3d at 689 (citing William G. “Bud” Arnot, III & David Fowler Johnson, Current Trends in Texas Charge Practice: Preservation of Error and Broad–Form Use, 38 St. Mary’s L.J. 371, 416-40 (2007) (detailing history of Texas jury charge practices); William L. Davis, Tools of Submission: The Weakening Broad–Form “Mandate” in Texas and the Roles of Jury and Judge, 24 Rev. Litig. 57 (2005) (same)).
- Question 4 asked: “Was the negligence, if any, of Shiraz Ali in the operation of the Werner truck on December 30, 2014, a proximate cause of the injuries in question?”
- Cf. Dieter v. Baker Serv. Tools, A Div. of Baker Int’l Inc., 739 S.W.2d 405, 408 (Tex. App.—Corpus Christi 1987, writ denied) (“While the issue has not been directly addressed by a Texas court, we hold that liability for negligent hiring and supervision is not dependent upon a finding that the employee was acting in the course and scope of his employment when the tortious act occurred. See generally Salinas v. Fort Worth Cab & Baggage Co., 725 S.W.2d 701 (Tex. 1987); see e.g. Plains Res., Inc. v. Gable, 235 Kan. 580, 682 P.2d 653 (1984); Welsh Mfg., Div. of Textron, Inc. v. Pinkerton’s, Inc., 474 A.2d 436 (R.I. 1984); Gregor v. Kleiser, 111 Ill. App. 3d 333, 67 Ill. Dec. 38, 443 N.E.2d 1162 (1982). If course and scope was a required element of a negligent hiring and supervision claim, negligent hiring and supervision as a unique cause of action would be rendered superfluous by the respondeat superior doctrine.”).
- Our dissenting colleague, Justice Wilson, nonetheless insists that “the gross negligence issue must not be presented to a jury if there is legally insufficient evidence of gross negligence at trial and the defendant moves for a directed verdict on that ground, as happened in today’s case.” See post at –––– (Wilson, J., en banc dissenting opinion). However, Werner’s briefs do not address gross negligence or the legal sufficiency of the evidence in support thereof. In fact, Werner’s briefs do not even contain the words “gross negligence”. “Reaching this issue is not judicial liberal construction. It is judicial advocacy.” Reule v. M & T Mortg., 483 S.W.3d 600, 619 n.12 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).
- See also Reule v. M & T Mortg., 483 S.W.3d 600, 617 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (citing Goad v. Hancock Bank, No. 14-13-00861-CV, 2015 WL 1640530, at *5 (Tex. App.—Houston [14th Dist.] Apr. 9, 2015, pet. denied) (mem. op.) (holding that a “passing argument” that contains no substantive argument, analysis, or citation to the record or relevant authorities constitutes briefing waiver)); Cruz v. Cruz, No. 14-19-00016-CV, 2019 WL 2942630, at *2 (Tex. App.—Houston [14th Dist.] July 9, 2019, no pet.) (mem. op.) (per curiam) (“Even construing Santiago’s appellate brief liberally, we cannot conclude that he adequately briefed any argument in support of this assertion …. Therefore, we find briefing waiver.”) (citations omitted); Slaughter v. Johnson, No. 14-17-00050-CV, 2018 WL 4116115, at *5 (Tex. App.—Houston [14th Dist.] Aug. 28, 2018, no pet.) (mem. op.) (“When an appellant fails to make proper citations to authority or to the record or provide any substantive legal analysis, the issue is waived.”) (citations omitted); In re Estate of Gibbons, 451 S.W.3d 115, 123 n.7 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (“[T]he Contestants have not provided any argument, analysis, or citations to the record or legal authority in support of [their] assertion. Even construing the Contestants’ brief liberally, we cannot conclude that they have adequately briefed any argument in support of this assertion.”) (citing San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex. App.—Houston [14th Dist.] 2005, no pet.)).
- See also Turner v. Ewing, 625 S.W.3d 510, 522 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (noting that, “[a]s an appellate court, it is not our duty to perform an independent review” of the record for evidence supporting an appellant’s position) (citing Priddy v. Rawson, 282 S.W.3d 588, 595 (Tex. App.—Houston [14th Dist.] 2009, pet. denied); Lundy v. Masson, 260 S.W.3d 482, 503 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (concluding that appellant failed to provide argument or cite authority for contention on appeal and appellate court was “not required to do the job of the advocate”)); Guajardo v. Hitt, 562 S.W.3d 768, 781 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); In re R.H.W. III, 542 S.W.3d 724, 742 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (“Accordingly, we conclude that Father failed to adequately brief any argument in support of this issue, and so has waived the complaint.”).
- Our dissenting colleague, Chief Justice Christopher, states that, “It is not Werner’s obligation to provide evidence of the magnitude of the burden imposed by this court.” Post at –––– (Christopher, C.J., en banc dissenting opinion). First, we note that the Blakes argued to the trial court that the magnitude of Werner’s burden was low, that there was little social utility associated with Werner’s operational methods under the circumstances, and that positive and negative consequences associated with modified operations favored the Blakes. Second, we note that Werner did not contest these issues in the trial court or on appeal. Third (agreeing arguendo with Chief Justice Christopher), it is Appellants’ clearly established obligation to provide argument and evidence in support of their contentions that the trial court erred and here they failed to comply with said obligation. C.f. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 3 (2010) (“The burden of precautions can take a very wide variety of forms. In many cases it is a financial burden borne by the actor, although likely passed on, to a substantial extent, to the actor’s customers. In highway cases, the burden can be the delays experienced by motorists in driving more slowly, and the greater level of exertion motorists must make in maintaining a constant lookout…. In cases in which the negligence doctrine is applied to a person who loans a car to a friend with a known deficient driving record, the burden relates to the owner’s inability to satisfy the friend’s need. In certain situations, if the actor takes steps to reduce one set of injury risks, this would involve the burden or disadvantage of creating a different set of injury risks, and those other risks are included within the burden of precautions.”).
- See Guajardo, 562 S.W.3d at 781 (“It is not our duty to review the record, research the law, and then fashion a legal argument for an appellant when he has failed to do so.”) (citing Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931-32 (Tex. App.—Houston [14th Dist.] 2008, no pet.)); see also Reule, 483 S.W.3d at 617 (“We conclude that Reule’s discussion of this issue does not provide the court with sufficient information to examine any alleged error; therefore any such error is waived by inadequate briefing.”) (citing Goad, 2015 WL 1640530, at *5 (holding that a “passing argument” that contains no substantive argument, analysis, or citation to the record or relevant authorities constitutes briefing waiver)); Dominguez v. Am. Express Bank, FSB, No. 14-17-00157-CV, 2020 WL 2832075, at *2 (Tex. App.—Houston [14th Dist.] May 29, 2020, pet. denied) (mem. op.) (“Dominguez has not provided any argument, analysis, or citations to legal authority in support of [his] assertions. Even construing Dominguez’s opening brief liberally, we cannot conclude that Dominguez adequately briefed any of these points and so we find briefing waiver.”) (citing Tex. R. App. P. 38.1(i); Marathon Petroleum Co. v. Cherry Moving Co., 550 S.W.3d 791, 798 (Tex. App.—Houston [14th Dist.] 2018, no pet.)); Cruz, 2019 WL 2942630, at *2 (“Even construing Santiago’s appellate brief liberally, we cannot conclude that he adequately briefed any argument in support of this assertion …. Therefore, we find briefing waiver.”) (citing San Saba Energy, L.P., 171 S.W.3d at 337; Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 198-99 (Tex. App.—Houston [14th Dist.] 2002, no. pet.)).
- Specifically, the Blakes argued that, “[W]hile there is great social utility in providing transportation services by commercial motor vehicle, the utility of doing so the way Werner routinely does and did in this case is low. There is little utility in (1) assigning student drivers to JIT runs when they will be unsupervised the vast majority of the time, (2) providing drivers no weather information or route-selection assistance, (3) prohibiting student drivers from using basic safety devices like CB radios and outside air temperate gauges, (4) deliberately refusing to train its drivers to slow to a crawl and stop driving as soon as it is safe to do so when they encounter icy road conditions (contrary to the instructions in the CDL manual), (5) taking a route through an area where icy roads are predicted when there is a safer, shorter alternative route on another interstate highway, (6) failing to monitor the weather and road conditions en route when the route transverses an area covered by a Winter Storm Warning, and (7) having a student driver with no winter driving experience or training drive unsupervised through an ice storm.”
- I do not discuss an issue if I have concluded that the majority reached the correct holding on that matter, or if the majority’s holding would be immaterial under my resolution of the case.
- I agree with the majority that the trial court did not abuse its discretion in submitting jury questions inquiring whether a party’s negligence was a proximate cause “of the injuries in question.” See Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d 553, 559–60 (Tex. 2015).
- The speed limit was stated in the intermediate appellate court’s opinion. See Tex. Brine Corp. v. Lofton, 751 S.W.2d 197, 199 (Tex. App.—Houston [14th Dist.] 1988), rev’d, 777 S.W.2d 384 (Tex. 1989).
- Emphasis added.
- This issue also often arises in connection with nurses and hospitals. Sometimes the case only involves vicarious liability but sometimes there is an independent claim against the hospital. Thus, the question of whether a course-and-scope stipulation should foreclose the submission of the kind of apportionment question at issue has broader implications beyond cases of motor-vehicle accidents.
- This would be similar to question 10.12 in the General Negligence Pattern Jury Charge on negligent entrustment.
- Salinas was driving at a speed of 50 to 60 miles per hour while it was sleeting when Salinas lost control of his truck due to ice on the roadway. Salinas’s truck crossed the grassy median dividing the eastbound and westbound lanes of Interstate 20 and entered the westbound lanes.
- Some courts refer to this rule as the McHaffie Rule, based on the Supreme Court of Missouri’s opinion in McHaffie v. Bunch, 891 S.W.2d 822, 825–27 (Mo. 1995).
- Injured parties may also use vicarious theories and derivative theories in an attempt to hold an employer liable for torts other than negligence. Today’s case does not involve such an attempt, so this opinion refers only to theories seeking to hold an employer liable for an employee’s negligence.
- For this reason, the better course is not to call these theories “independent theories” or “independent claims.”
- In fairness, the cases are not unanimous. The highest courts in Illinois, Kansas, Kentucky, South Carolina, and Utah have not embraced the Admission Rule. See McQueen v. Green, 460 Ill.Dec. 726, 202 N.E.3d 268, 277–80 (2022); Marquis v. State Farm Fire & Cas., 265 Kan. 317, 961 P.2d 1213, 1224–25 (1998); MV Transp. v. Allgeier, 433 S.W.3d 324, 333–37 (Ky. 2014); James v. Kelly Trucking Co., 377 S.C. 628, 661 S.E.2d 329, 631–34 (2008); Ramon v. Nebo Sch. Dist., 493 P.3d 613, 618–21 (Utah 2021). The Supreme Court of Louisiana recently ruled similarly, although its decision was based on the unique language of the Louisiana Civil Code and the Louisiana Code of Civil Procedure. See Martin v. Thomas, 346 So.3d 238, 241–48 (La. 2022).
- The Texas Legislature has enacted a statute adopting the Admission Rule as to personal-injury actions in which the claimant sues a defendant who owned, leased, or otherwise held or exercised legal control over a commercial motor vehicle or operator of a commercial motor vehicle involved in an accident. See Act of May 28, 2021, 87th Leg., R.S., ch. 785, § 4, 2021 Tex. Sess. Law Serv. 1855, 1856 (codified at Tex. Civ. Prac. & Rem. Code § 72.051, eff. September 1, 2021). But the Legislature determined that this statute applies to such civil actions that are filed on or after September 1, 2021, without commenting on what rule applies to actions that were filed before that date. See 2021 Tex. Sess. Law Serv. 1855, 1857–59 (codified at Tex. Civ. Prac. & Rem. Code § 72.054, eff. September 1, 2021); Graham, 2023 WL 138923, at *2, n.4. That statute does not apply to today’s case, and this court should adopt the Admission Rule without relying on the statute.
- Holcombe v. United States is not on point. See 2021 WL 67217, at *28 (W.D. Tex. Jan. 6, 2021). The court in that case does not state that there is an exception to the Admission Rule for negligent-supervision claims. See id. On the contrary, the Holcombe court cites a case applying the Admission Rule to a negligent-supervision claim under Texas law and indicates that the Admission Rule generally applies to negligent-supervision claims. See id. at *27 (citing Williams, 671 F.Supp.2d at 888–89). The Holcombe court decided not to apply the Admission Rule to the negligent-supervision claims in that case based on “the unique posture of claims brought under the [Federal Tort Claims Act] and practical considerations.” See id. at *27. The Holcombe court stressed that claims against the United States of America under the Federal Tort Claims Act are all based on respondeat-superior liability, which is different from the context in which the Admission Rule normally applies. See id. at *27–28. The Holcombe case involved claims brought against the United States of America stemming from the mass shooting in Sutherland Springs, Texas, and alleging that the shooter should not have been able to purchase the firearms he used in the shooting, but that negligent failures by the United States to collect, handle, and report required information about the shooter allowed him to do so. See id. at *1.
- The Blake Parties did not seek exemplary damages based on any alleged fraud or malice by Werner. In any event, the trial evidence was legally insufficient to prove by clear and convincing evidence that the harm with respect to which the Blake Parties sought recovery of exemplary damages resulted from Werner’s fraud or malice.
- The en banc majority concludes that the trial evidence is legally sufficient to support (1) a finding of a negligence duty, breach of duty, and causation based on some of the Blake Parties’ derivative theories and (2) a finding that Werner’s negligent training and supervision proximately caused the accident in question. See ante at –––– – –––– (Hassan, J., en banc majority). But Werner’s motion for directed verdict based on the Admission Rule did not challenge the sufficiency of the trial evidence to support the essential elements of any of these negligence theories, and the existence of legally sufficient evidence as to any of these elements would not preclude judgment as a matter of law in favor of Werner as to the derivative theories based on the ground that Werner admitted Ali was acting in the course and scope of his employment at Werner and there was no evidence at trial that Werner was grossly negligent. See Cahalan, 2012 WL 12915496, at *4–6.
- To adjudicate today’s appeal, this court need not and should not determine if any of the Blake Parties’ theories are independent theories. My dissenting colleague, Chief Justice Christopher, concludes that this court should not adopt the Admission Rule and indicates that adopting this rule would cause problems in health care liability cases in which a plaintiff asserts a vicarious liability theory and an independent theory against a hospital. In such a scenario, the Admission Rule would provide no impediment to the plaintiff pursuing both a vicarious liability theory and an independent theory. See Ferrer, 390 P.3d at 845–46.
- Of course, the same result would be true if a plaintiff asserted a gross-negligence claim and the trial court granted a defendant’s motion for summary judgment holding there was no evidence to support a gross-negligence claim. If the trial court holds by either summary judgment or directed verdict that there is insufficient evidence to support a gross-negligence claim, then the Admission Rule precludes submission of any derivative theory of negligence to the jury if the employer has stipulated that the employee was acting in the course and scope of his employment.
- The en banc majority cites Cristo v. C.R. England, Inc. in support of this proposition. See ante at –––– (Hassan, J., en banc majority); 2021 WL 801340, at *4 (W.D. Tex. Jan. 7, 2021). The Cristo case does not support this proposition. See Cristo, 2021 WL 801340, at *4. Instead, the Cristo court simply states that other courts have concluded that they should dismiss as a matter of law derivative theories of negligence if the employer does not dispute that its employee was acting in the course and scope of employment and if no viable gross-negligence claims remain. See id. The Cristo court granted summary judgment as to both the request for exemplary damages and as to the plaintiff’s derivative theories of negligence. See id. at *2–6. The availability of summary judgment if the summary-judgment evidence does not raise a fact issue on gross negligence and the employer has admitted that its employee was acting in the course and scope of employment does not mean that an employer may not obtain a directed verdict if the trial evidence does not raise a fact issue on gross negligence and the employer has admitted that its employee was acting in the course and scope of employment. The Cristo court did not state or imply that an employer may not obtain a directed verdict on a plaintiff’s requests for exemplary damages and derivative theories of negligence. Id.
- The en banc majority asserts that this dissenting opinion “insists [this court] must overturn the jury’s verdict based on the trial court’s implicitly erroneous admission of evidence that tended to prove the Blakes’ allegations concerning gross negligence and negligent supervision.” Ante at –––– (Hassan, J., en banc majority). By thinking that this dissent has erroneously concluded that the trial court abused its discretion in admitting evidence the en banc majority misunderstands this opinion. At no point does this dissenting opinion explicitly or implicitly address whether the trial court erred in making any evidentiary ruling. This dissent’s conclusion that the trial court reversibly erred in denying Werner’s motion for directed verdict does not imply that the trial court erred in admitting any evidence, and the conclusion is reached after consideration of all the evidence admitted at trial under the standard of review applicable to motions for directed verdict.
- As explained in this opinion, I conclude that this court should reverse the trial court’s judgment based on the Admission Rule. If the Supreme Court of Texas were to determine that the trial court’s judgment should not be reversed based on the Admission Rule, then I conclude that reversal and remand for a new trial would be warranted for the reasons stated in Part II.A of Chief Justice Christopher’s en banc dissenting opinion. Therefore I join Part II.A.
- When a party receives favorable jury findings on two or more theories of recovery that yield different damage amounts, that party may elect the theory of recovery upon which the party wishes to recover. SeeBirchfield v. Texarkana Mem. Hosp., 747 S.W.2d 361, 367 (Tex. 1987). By electing to recover based on one theory, the prevailing party does not waive any alternative theories of recovery and may seek recovery under one of these alternative theories in a motion for rehearing if the appellate court reverses the judgment. SeeBoyce Iron Works v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988). After a party seeks recovery under an alternative theory of recovery in a motion for rehearing, any opposing party may respond and assert all objections or arguments that the opposing party has to rendition of judgment based on the alternative theory. SeeBeal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 650, n. 4 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Thus far in this case, no party has addressed whether the Blake Parties properly could make a Boyce Iron Works election to recover based on the jury’s finding in response to Question 6 or in response to Question 7. SeeEnergy Maintenance Services Group I v. Sandt, 401 S.W.3d 204, 218, n.9 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). Because this issue is not before the court today, I do not take any position on it. See id.
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