Werner Enters., Inc. v. Blake

672 S.W.3d 554

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

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed May 18, 2023

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

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;

(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;

(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 ...

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