Txi Transp. Co. v. Hughes

224 S.W.3d 870

TXI TRANSPORTATION COMPANY, Ricardo Reyna Rodriguez, Aurelio Melendez, Appellants, v. Randy HUGHES, Individually and as Personal Representative for the Estate of Shiloh Hughes; Clint Royse, Individually As Personal Representative for the Estate of Afton Hughes Royse and as Next Friend of Jagr Royse; Willie Watkins, Individually and as Personal Representative for the Estate of Joyce Watkins and as Personal Representative for the Estate of Kimberly Watkins Hughes; Shirley Richey; Carolyn Largent; Betty Gentry; and Johnny Watkins, Appellees.

No. 2-04-242-CV.

Court of Appeals of Texas, Fort Worth.

May 24, 2007.

Reagan W. Simpson, H. Victor Thomas, Amy C. Eikel, King & Spalding L.L.P., Charles W. Hurd, Fulbright & Jaworski L.L.P., Houston, Mark E. Stradley, Stradley & Wright, Michael C. Steindorf, Ben Taylor, Fulbright & Jaworski L.L.P., Christopher N. Forbis, Sewell & Forbis, Decatur, for Appellants.

Dee J. Kelly, Jr., Brian S. Stagner, Caj D. Boatright, Kelly, Hart & Hallman, P.C., Michael A. Simpson, Derrick Boyd, G. Alan Powers, Simpson, Boyd & Powers, P.L.L.C., Bridgeport, Fort Worth, for Appellees.

Panel B: LIVINGSTON, GARDNER and WALKER, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

This is a wrongful death and survival action stemming from a collision on Highway 114 between a westbound Yukon driven by Kim Hughes and an eastbound gravel truck driven by Ricardo Rodriguez. The gravel truck was owned by Aurelio Melendez and leased to TXI Transportation Company. The passengers in the Yukon were Joyce Watkins (Kim's mother), Afton Hughes Royse (Kim's daughter who was pregnant with twins), Shiloh Hughes (Kim's son), and Jagr Royse (Kim's grandson). As a result of the Yukon's "sideswipe" collision with the gravel truck, the Yukon traveled down the length of the gravel truck, spun off the back of the gravel truck, veered into the oncoming lane of traffic, and was "T-boned" by a Ford F-250. Of the Yukon's passengers, only Jagr Royse survived the accident. Following a seven-day trial, involving testimony from twenty-eight witnesses, a jury found that Rodriguez had negligently operated the gravel truck, that TXI had negligently hired Rodriguez, and that Melendez had negligently entrusted the gravel truck to Rodriguez. After disregarding certain jury findings, the trial court entered a judgment against Appellants for $15,787,190 in compensatory damages and $6,658,000 in exemplary damages. Appellants raise six issues encompassing seventeen individually asserted subissues on appeal.¹ For the reasons set forth below, we will reverse the exemplary damages award and render judgment that Appellees take nothing on their claim for exemplary damages. We will also reverse the judgment against Melendez and render judgment that Appellees take nothing on the negligent entrustment claim asserted against him. We will affirm the remainder of the trial court's judgment.

II. FACTUAL BACKGROUND

On December 17, 2002, the Hughes family was returning to Paradise, Texas, after grocery shopping in Fort Worth. Kim Hughes was driving westbound on Highway 114. Four vehicles were traveling eastbound on Highway 114 in the vicinity of the accident. First, Cody Jobe was driving his 1989 Firebird Trans Am — the easternmost vehicle of the four traveling eastbound — and had driven onto the right-hand shoulder in preparation to turn right off Highway 114 into his father's driveway. Second, the gravel truck driven by Rodriguez was likewise traveling eastbound on Highway 114 approximately one-half mile behind Jobe. The gravel truck had an overweight permit, and its trailer was loaded with rocks so that it weighed approximately 84,000 pounds.² Third, the Ford F-250 pickup truck driven by Jerry Larance and pulling a twenty-foot trailer was traveling eastbound on Highway 114 approximately 200 yards behind the gravel truck. And finally, a Chevy Lumina driven by Michelle Wyndham was also traveling eastbound on Highway 114, following the pickup closely and getting ready to pass.

Jobe testified that, after he pulled onto the shoulder of Highway 114 and was preparing to turn into his father's driveway, he glanced in his rearview mirror and saw the gravel truck behind him.³ Jobe turned right into his father's driveway and, when he parked and exited his car, he saw that a wreck had occurred right in front of his dad's mailbox.⁴ Jobe ran back towards the accident scene to help. Jobe saw that Rodriguez, the driver of the gravel truck, had exited the gravel truck and had used a cell phone to call 911. Rodriguez handed the cell phone to Jobe saying, "You need to talk to them because they can't understand me." Jobe spoke with the 911 dispatcher and "[checked] pulses." Rodriguez told Jobe at the scene that "the Yukon or Suburban, whatever it was, was coming westbound, had a blowout, and hit him in the back of his truck, and then swerved back into the lane, and I guess that's where the Ford T-boned her there."

Rodriguez testified that he was driving a gravel truck for TXI, hauling a load on Highway 114 from Bridgeport to Paradise. According to Rodriguez, he never left his lane of traffic. Rodriguez testified that when he saw the Yukon "coming to" him, he turned to the right, toward the shoulder, in an effort to avoid the accident. Rodriguez told Aurelio Melendez, his boss, in a conversation an hour after the accident that he had steered right for two to three seconds prior to the collision. Subsequently, Rodriguez testified that he steered right for only one second prior to the collision. Rodriguez likewise gave different descriptions of the point of initial impact between the gravel truck and the Yukon. He told Melendez that the Yukon had hit at the third axle — the front set of wheels at the back end of the trailer. He told Jobe that the Yukon initially had hit the wheels at the back of his truck — not the trailer. He told the DPS investigator, Trooper Wanda Raney, that the Yukon had hit him on the left, driver's side, "touching" his tires. Jonathan Kennemer, TXI's corporate representative, claimed that Rodriguez told him at the accident scene that the Yukon had hit the left front of the TXI truck, knocking off the clearance pole. The gravel truck's trailer left 358 feet of skid marks on Highway 114, partially documenting its angle of travel as it slowed and stopped on the eastbound shoulder of Highway 114. Drug and alcohol screens performed on Rodriguez immediately after the accident were all negative.

Jerry Larance testified that he had just gone through Paradise on Highway 114 and was about 200 yards behind the TXI gravel truck. He did not see the accident. He heard an explosion, looked up, and saw that the impact between the TXI truck and the Yukon had already occurred. Larance said that he did not see either the gravel truck or the Yukon outside of its own lane. The Yukon, after sliding down the side of the gravel truck, emerged from behind the gravel truck, and skidded on its wheel rims into the eastbound lane of traffic. Larance's pickup "T-boned" the Yukon.

George Wilton was a front-seat passenger in Larance's pickup. He said that he did not see the Yukon until it appeared off the end of the TXI trailer; before that, the trailer had blocked it from view. Wilton did not see either vehicle outside of its proper lane.

Finally, Michelle Wyndham testified that she lived in Paradise and on December 17, 2002, was taking her son to a doctor's appointment in Boyd. She was in a hurry and running late. She approached Larance's pickup and trailer, intending to pass him. As she pulled out to pass, she saw the Yukon coming towards her. She braked and slid to a stop. She saw Larance hit the Yukon. Wyndham exited her van and heard a baby crying. She approached the Yukon, determined that Jagr was crying, and got him out of the Yukon. Wyndham testified that she never saw the gravel truck at all.

III. ADMISSION OF APPELLEES' ACCIDENT RECONSTRUCTION EXPERT'S TESTIMONY AND EXCLUSION OF AN OPINION OF THE DPS TROOPER

In their issue II, Appellants claim that the trial court erred by admitting the testimony of Appellees' accident reconstruction expert, Kurt Marshek.⁵ Appellants filed a pretrial motion to exclude Marshek's testimony, and the trial court denied it. In subpart F of their issue I, Appellants claim that the trial court erred by excluding Trooper Wanda Raney's opinion that the accident was caused by a tire blowout on the Yukon and by excluding the accident report prepared by Raney. We address these rulings by the trial court together because they involve the same standard of review.

A. Standard of Review

Upon objection by the opponent of the evidence, the proponent of expert testimony has the burden to prove that the evidence is admissible. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995). A two-part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and be based on a reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001). The testimony must be shown to be reliable before it is admitted. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.1998). The trial court is required to assess the reliability — not the truth or falsity — of the expert's opinion. Robinson, 923 S.W.2d at 558. The criteria for assessing reliability vary depending on the type of expert and the nature of the evidence. Gammill, 972 S.W.2d at 726-27; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999). There must not be too great an analytical gap between the data or observations and the expert's conclusions. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 519, 139 L.Ed.2d 508 (1997); Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 904-05 (Tex.2004).

The trial court has broad discretion in determining admissibility of an expert's testimony. Robinson, 923 S.W.2d at...