Court of Appeals of Texas, San Antonio.
Jack DONALDSON and Shirley Donaldson, Individually and as Heirs and Survivors
of Nerissa Villarreal, Deceased, and as Next Friends for Charlotte Walters and
as Personal Representatives of the Estate of Nerissa Villarreal, Deceased,
Appellants/Cross-Appellees
v.
J.D. TRANSPORTATION COMPANY, INC. and Jaime Dominguez, Individually,
Appellees/Cross-Appellants
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2003-CI-00767 Honorable Martha Tanner, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Alma L. López, Chief Justice Karen Angelini, Justice Phylis J. Speedlin, Justice
Delivered and Filed: June 22, 2005
AFFIRMED
Jack and Shirley Donaldson appeal from the trial court’s judgment awarding them damages against J.D. Transportation Company in their wrongful death and survival suit brought as a result of the death of their daughter, Nerissa Villarreal. On appeal, the Donaldsons contend the trial court erred in failing to hold Jaime Dominguez individually liable in addition to holding the company vicariously liable for Dominguez’s negligence. A cross appeal was also filed by J.D. Transportation Company and Jaime Dominguez challenging the trial court’s findings that Jaime Dominguez was negligent, that his negligence was a proximate cause of the death of Nerissa Villarreal, the proportionate responsibility attributable to any negligence of Jaime Dominguez, and the sufficiency of the evidence supporting the damages awarded. We conclude that there is insufficient evidence to support the trial court’s finding that Jaime Dominguez’s negligence was a proximate cause of the injuries to and death of Nerissa Villarreal. However, because the trial court’s judgment held J.D. Transportation Company vicariously responsible for the entire amount of damages awarded based on the negligence of both Ruben Villarreal and Jaime Dominguez, and did not provide for any individual liability by Jaime Dominguez, our conclusion does not require modification of the trial court’s judgment. We therefore affirm the judgment.
BACKGROUND
On June 2, 2002, Ruben Villarreal, a truckdriver employed by J.D. Transportation Company, was driving a commercial truck eastbound on Interstate 10 through New Mexico on his way from California to Texas. Nerissa Villarreal, Ruben’s wife and co-driver, was a passenger in the truck. At approximately 4:30 a.m., the truck left the roadway and overturned, striking a guardrail. Both Ruben and Nerissa Villarreal were killed in the accident.
Jack and Shirley Donaldson brought suit against J.D. Transportation and Jaime Dominguez under the wrongful death and survival statutes individually, as the heirs and personal representatives of their daughter’s estate, and as next friend of their granddaughter, Charlotte Walters. The suit alleged that the injuries and death of Nerissa Villarreal were proximately caused by the negligence of the driver, Ruben Villarreal, and the negligence of his supervisor, Jaime Dominguez, in the hiring, supervision, and retention of Mr. Villarreal. The Donaldsons alleged that the trucking company was vicariously liable for the negligence of both Ruben Villarreal and Dominguez. They sought damages for the conscious pain and suffering and mental anguish experienced by Nerissa prior to her death in the accident; Nerissa’s funeral expenses; their own individual mental anguish and loss of companionship as a result of their daughter’s death; and for the pecuniary losses, loss of companionship, and mental anguish of Charlotte Walters as a result of the death of her mother.
The case was tried to the court in May 2004. The trial court entered judgment that the Donaldsons were entitled to recover damages from J.D. Transportation based on the company’s vicarious liability for the acts of both Ruben Villarreal and Jaime Dominguez, but ordered that the Donaldsons take nothing against Jaime Dominguez individually. The judgment awarded the following damages: $303,431.60 to Shirley Donaldson; $303,431.60 to Jack Donaldson; and $929,112.00 to Charlotte Walters. In its findings of fact and conclusions of law, the trial court found that Jaime Dominguez, acting in the course and scope of his employment, had been solely responsible for the hiring, supervision, and retention of employees of J.D. Transportation, including Ruben Villareal; that Jaime Dominguez had been negligent in the hiring, supervision, and retention of Ruben; and that this negligence was a proximate cause of the injuries to and death of Nerissa Villarreal. The trial court further found that Dominguez was 51% responsible for the injuries and death of Nerissa and Villarreal was 49% responsible. The trial court concluded that the company was vicariously liable for the negligence of both Ruben Villarreal, as the driver, and Jaime Dominguez. [FN1] The court further concluded that Dominguez could not be held individually liable.
FN1. The parties do not challenge the trial court’s findings as to Ruben Villarreal’s negligence or J.D. Transportation’s vicarious liability for his negligence.
Based on a thorough review of the evidence, we conclude that there is insufficient evidence to support the trial court’s finding that Dominguez’s negligence in the hiring, supervision, and retention of Villarreal was a proximate cause of the injuries and death of Nerissa Villarreal. However, our conclusion does not require any modification to the trial court’s judgment. J.D. Transportation is liable for all of the damages awarded based solely on its vicarious liability for Ruben Villarreal’s negligence. Accordingly, we affirm the trial court’s judgment.
ANALYSIS
The Donaldsons appeal the trial court’s judgment, contending that the judge erred by not holding Dominguez personally liable. J.D. Transportation and Dominguez cross-appeal, challenging the trial court’s findings of fact related to Dominguez’s negligence as well as the sufficiency of the evidence to support the damages.
Negligence and Proximate Cause
J.D. Transportation and Jaime Dominguez contend in their second issue on cross-appeal, that there is no evidence, or alternatively insufficient evidence, to support the court’s finding that the negligence of Jaime Dominguez was a proximate cause of the injuries and death of Nerissa Villarreal. We agree.
When the trial court acts as a factfinder, we review the court’s findings under legal and factual sufficiency standards. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998); Morris v. Powell, 150 S.W.3d 212, 217 (Tex.App.– San Antonio 2004, no pet.); W. Wendell Hall, Standards of Review in Texas, 34 ST. MARY’S L.J. 1, 182 (2002). The trial court’s findings of fact carry the same force and dignity as a jury’s verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991); McLaughlin, Inc. v. Northstar Drilling Technologies, Inc., 138 S.W.3d 24, 27 (Tex.App.–San Antonio 2004, no pet.). In analyzing the legal sufficiency of the evidence supporting a finding of fact, we examine the record for evidence and inferences that support the challenged finding, while disregarding all contrary evidence and inferences. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994), McLaughlin, Inc, 138 S.W.3d at 27. If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge cannot be sustained. Catalina, 881 S.W.2d at 297; McLaughlin, Inc, 138 S.W.3d at 27. When analyzing the factual sufficiency of the evidence, we consider all of the evidence in the record both for and against the finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); McLaughlin, Inc, 138 S.W.3d at 27. We will hold the evidence factually insufficient if we conclude the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176; McLaughlin, Inc, 138 S.W.3d at 27.
To successfully prosecute their claim of negligent hiring, supervision, or retention, the Donaldsons were required to establish that “(1) the employer owed a legal duty to protect third parties from the employee’s actions, and (2) the third party sustained damages proximately caused by the employer’s breach of that legal duty.” Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 655 (Tex.App.–Dallas 2002, pet. denied) (citing Houser v. Smith, 968 S.W.2d 542, 544 (Tex.App.–Austin 1998, no pet.)). The basis of responsibility for negligent hiring is the employer’s own negligence in hiring an incompetent employee whom the employer knows, or by the exercise of reasonable care should have known, to be incompetent or unfit, thereby creating an unreasonable risk of harm to others. Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex.Civ.App.–Tyler 1979, writ ref’d n.r.e.).
The Donaldsons alleged that Dominguez breached his duty to use reasonable care by failing to comply with federal regulations governing the hiring of commercial truck drivers. See 49 C.F.R. § § 391.15–391.45 (2004). “The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself.” RESTATEMENT (SECOND) OF TORTS § 288B (1) (1965); see also Saenz v. J.D. Rodriguez Produce & Trucking Co., No. 04-99-00867-CV, 2000 WL 33225303, at *3 (Tex.App.–San Antonio Dec. 29, 2000, pet. denied) (not designated for publication) (unexcused violation of a statute constitutes negligence as a matter of law if such statute was designed to prevent injury to the class of persons to which the injured person belongs). Such negligence makes the actor subject to liability; in order to be liable, however, his conduct must still be a legal cause of the harm to the plaintiff. RESTATEMENT (SECOND) OF TORTS § 288B (1) cmt. b.; Missouri Pac. R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex.1977) (finding of negligence per se only subjects one to possible liability, and a showing of proximate cause is still required); Saenz, 2000 WL 33225303, at *3 (the factfinder must decide if the tortfeasor committed the act proscribed by the statute and if the act proximately caused the injury); see also Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 427 (Tex.App.–Houston [1st Dist.] 1990, no writ) (federal motor carrier safety regulations merely establish the standard of care required by law).
Proximate cause is comprised of two elements–cause in fact and foreseeability. Leitch v. Hornsby, 935 S.W.2d 114, 118-19 (Tex.1996). A “negligent act or omission is not a cause in fact unless ‘but for the conduct the accident would not have happened.’ ” Williams v. Steves Indus., Inc., 699 S.W.2d 570, 575 (Tex.1985) (quoting Kerby v. Abilene Christian Coll., 503 S.W.2d 526, 528 (Tex.1973)). If the same harm would have been sustained even had the actor taken the required precautions, his failure to do so can not be a substantial factor in bringing it about. RESTATEMENT (SECOND) OF TORTS § 432(1) cmt. b (1965).
Here, the parties agree that Dominguez and J.D. Transportation owed a duty to Nerissa Villarreal, and that Dominguez violated that duty by failing to strictly comply with the federal regulations for hiring commercial truck drivers. The Donaldsons contend that had Dominguez complied with the requirements, Dominguez would have learned facts that would have prevented the hiring of Ruben Villarreal as a driver–namely, that Ruben Villarreal (1) was an insulin dependent diabetic, and (2) had a prior criminal conviction and subsequent revocation of probation for a drug-related offense in 1996.
An established medical history or clinical diagnosis of diabetes requiring insulin is a disqualifying characteristic for commercial truck drivers. 49 C.F.R. § 391.41(b)(3) (2004). However, the only evidence of Villarreal’s diabetic condition came from Nerissa’s family members. There is no requirement that Dominguez interview or seek information from an applicant’s family members, nor is there any evidence that had he complied with the other hiring requirements, Dominguez would have learned of the diabetes from another source. See 49 C.F.R. § § 391.15–391.45. The Donaldsons contend that Villarreal’s previous employer had terminated his employment due to his hospitalization for diabetes; however, there is no record evidence to support this contention. Jack Donaldson testified that Villarreal had been let go from his employment with another trucking company. Donaldson further testified that Villarreal’s termination occurred before he was hospitalized for a period of time related to his diabetes. Donaldson’s testimony does not establish, however, that Villarreal’s employment was terminated because of his diabetic condition, or that his previous employer even knew of the condition at the time Villarreal’s employment ended. By contrast, there is evidence that Villarreal provided Dominguez with a valid medical release card prior to his employment with J.D. Transportation which contained no indication of diabetes. Based on our review of the record, we conclude there is no evidence that compliance with the hiring regulations would have caused Dominguez to discover Villarreal’s diabetes as a condition disqualifying him from employment.
While there was some evidence of Villarreal’s prior conviction for a drug-related offense, there was no evidence that had Dominguez learned of this prior conviction, he would have been precluded from hiring Villarreal as a driver. The applicable regulations only require that an applicant’s driving record be reviewed for violations of motor vehicle laws within the past three years, but do not require that a criminal background check be completed. 49 C.F.R. § § 391.21(b)(8), 391.23(a)(1) (2004). We conclude that, even had Dominguez complied with the regulatory requirements to review and retain Villarreal’s driving record, discovery of a conviction unrelated to motor vehicle laws which occurred six years prior to his application for employment would not necessarily have prevented Dominguez from hiring Villarreal. See id.; PERLINK”http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=713&FindType=Y&ReferencePositionType=S&SerialNum=1996273025&ReferencePosition=119″Leitch, 935 S.W.2d at 119 (proof of causation can not “turn upon speculation or conjecture”).
Based on our review of the record, we conclude there is no evidence to support the trial court’s finding that any negligent act or omission by Dominguez was a proximate cause of the injuries and death of Nerissa Villarreal. Without proximate cause, Dominguez’s negligence in failing to comply with the federal regulations can not be the basis of liability for either Dominguez individually or for J.D. Transportation under a respondeat superior theory. Therefore, the Donaldsons’ sole issue on appeal is overruled and J.D. Transportation’s second issue on cross-appeal is upheld. [FN2]
FN2. Because of our conclusions regarding proximate cause, we need not reach the first and third issues raised on cross-appeal.
Damages
In issues four through ten on cross-appeal, J.D. Transportation and Dominguez challenge the sufficiency of the evidence to support the various amounts of damages awarded by the trial court. The trial court’s conclusions of law state the total amounts awarded to each plaintiff for past and future damages, but do not specify the damage elements to which the amounts correspond. Because there was no request for additional findings of fact or conclusions of law drawing the trial court’s attention to any complaint of insufficient evidence on any element of damages, J.D. Transportation and Dominguez are limited to challenging the sufficiency of the evidence supporting the damages awarded to each plaintiff as a whole. Tagle v. Galvan, 155 S.W.3d 510, 516 (Tex.App.– San Antonio 2004, no pet.). Therefore, we need not decide if the evidence is sufficient to support each individual damage element presented by the plaintiffs and will consider the evidence in the record as a whole. Id. at 518. If the amount of damages awarded to each plaintiff is supported by sufficient evidence of any element of damages requested as to that plaintiff, then we will uphold the award. Id. The plaintiffs requested damage awards for the physical pain and suffering and funeral expenses of Nerissa Villarreal; [FN3] past and future pecuniary losses, mental anguish, and loss of companionship for Charlotte Walters; [FN4] and past and future mental anguish and loss of companionship for both Jack and Shirley Donaldson.
