Reinicke v. Aeroground, Inc.

• Decision Date: 04 August 2005
• Docket Number: No. 14-02-00680-CV.,14-02-00680-CV.
• Citation: 167 S.W.3d 385
• Parties: Jimmie REINICKE, Individually and as Legal Representative of the Estates of Karen Reinicke, Deceased, Max L. Reinicke, Deceased, and Derrick A. Reinicke, Deceased, Appellants, v. AEROGROUND, INC., Appellee.
• Court: Texas Supreme Court

167 S.W.3d 385

Jimmie REINICKE, Individually and as Legal Representative of the Estates of Karen Reinicke, Deceased, Max L. Reinicke, Deceased, and Derrick A. Reinicke, Deceased, Appellants, v. AEROGROUND, INC., Appellee.

No. 14-02-00680-CV.

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

March 22, 2005.

Rehearing Overruled August 4, 2005.

David A. Carp, Brad Beers, Houston, and John V. Elick, Bellville, for appellants.

Charles W. Hurd, Jerry L. Rios, Reagan W. Simpson, Houston, Gregory Alan Scott, Dallas, for appellees.

Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.

PLURALITY OPINION

RICHARD H. EDELMAN, Justice.

In this wrongful death and survival action, Jimmie Reinicke, individually and as legal representative of the Estates of Karen, Max, and Derrick Reinicke (collectively, "Reinicke") appeals a judgment notwithstanding the verdict ("JNOV") in favor of Aeroground, Inc. ("Aeroground") on the grounds that the trial court erred in: (1) entering the JNOV because there was legally sufficient evidence to support the jury's verdict; and (2) excluding from evidence (i) a post-accident drug test for marijuana and valium of Aeroground's truck driver and (ii) the opinions of Texas Department of Public Safety ("DPS") accident reconstructionists. We affirm.

Background

In this particularly tragic case, Reinicke's wife, Karen, and their two sons, Max and Derrick, were killed by a fire resulting from a highway traffic collision (the "accident"). Reinicke brought this wrongful death and survival action against Aeroground (and others who are not parties to this appeal). At trial, the jury apportioned 50% of the negligence to Aeroground and awarded Reinicke damages totaling $23.25 million. However, the trial court ultimately concluded that there was no evidence that any negligence by Aeroground was a proximate cause of the accident, granted Aeroground's motion for JNOV, and entered a take-nothing judgment.

JNOV

Reinicke's first issue contends that the trial court erred in granting the JNOV because there was legally sufficient evidence that Aeroground's negligence proximately caused the accident.

Standard of Review

A trial court may grant a JNOV if there is no evidence to support one or more of the jury findings on issues necessary to liability. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003). To determine whether there is no evidence to support a jury verdict (and thus uphold the JNOV), we view the evidence in a light that supports the challenged finding and disregard all evidence and inferences to the contrary. Id. If more than a scintilla of evidence supports the finding, the jury's verdict must be upheld. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003).

More than a scintilla of evidence exists when the evidence enables reasonable minds to differ in their conclusions. See Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004). Conversely, evidence that creates only a mere surmise or suspicion is no more than a scintilla and, thus, no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). Similarly, an inference that is stacked only upon other inferences, rather than direct evidence, is not legally sufficient evidence. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex.2003).

Overview of Negligence Grounds

In this case, an Aeroground 18-wheel tractor-trailer rig driven by Randy Peavy ran out of fuel while heading eastbound on Highway 290 and was parked on the shoulder, out of the lane of traffic. Peavy notified Aeroground, and it sent another driver, David Rodriguez, with another tractor with which to pull Peavy's tractor away from the trailer and then pull the trailer to Aeroground's yard. After the first tractor had been moved away from the trailer, but before the second tractor was connected to it, Karen's van drifted off the roadway, collided with the rear corner of the parked trailer, went back onto the roadway, collided with both a Murco 18-wheel rig and the concrete wall dividing the highway, then caught on fire. Reinicke contends that the accident was caused by Aeroground's negligence in the following respects: (1) Peavy allowed his rig to run out of fuel during rush hour on a busy highway, causing it to be placed in a dangerous position on the shoulder; (2) Peavy failed to put out emergency warning triangles to alert oncoming traffic that his rig was disabled and not moving; and (3) Rodriguez, an untrained driver who had a history of backing incidents, had backed the second tractor into the roadway in the path of Karen's van immediately before the collision.

Negligence in Placing the Rig on the Shoulder

A person who creates a dangerous condition on premises, including a public highway, can be liable for injuries it causes even though he is not in formal control of the premises at the time of the injury.¹ However, in this case, the charge submitted to the jury (the "charge") contained only the elements pertaining to a negligent activity theory of recovery and not the additional elements required for a finding of liability under the independent theory of a defective condition of premises. See generally COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES — MALPRACTICE, PREMISES & PRODUCTS PJC 65.1 (2003).² Therefore, the charge will support a recovery for an injury that was a contemporaneous result of an activity actually going on at the time of the injury, but not an injury resulting from a condition that was previously created by an activity.³

Reinicke's first alleged ground of negligence, causing the trailer to be placed in a dangerous position along the highway, occurred while driving and parking the rig. That activity had ended when the tractor ran out of gas, well before the accident occurred. Therefore, to whatever extent Aeroground's negligence in running out of gas and positioning the rig on the shoulder created a dangerous condition, the negligent activity charge submitted in this case will not support a finding of liability for common law negligence or premise liability for failing to: (1) exercise reasonable care in putting the trailer there; (2) warn of that condition; or (3) make it reasonably safe.⁴

Statutory Duty to Warn

Despite that a premise defect theory was not submitted to the jury, the charge would support liability for Reinicke's second alleged ground of negligence, the failure to put out emergency warning triangles, because an independent duty to warn was imposed by statute, and the charge contained a negligence per se instruction that "the law requires the placement of emergency warning devices behind a disabled commercial motor vehicle within 10 minutes of becoming disabled."⁵

A negligence per se theory requires a showing of proximate cause just as does an ordinary negligence theory. See Mo. Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex.1977). In this case, the charge defined "proximate cause" as a cause that "produces an event, and without which... [it] would not have occurred." In this regard, the vital distinction is whether the negligent act: (1) set in motion a natural and unbroken chain of events that led directly to the injury;⁶ or (2) merely furnished a condition that made it possible for the injury to instead result from a separate act of negligence. IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 799 (Tex.2003). Similarly, if the evidence shows only a mere possibility that the plaintiff's injuries arose from the defendant's negligence, or if it shows more than one equally probable cause, for any of which the defendant was not responsible, then the evidence is legally insufficient to support a finding of causation. See Hart v. Van Zandt, 399 S.W.2d 791, 792-93 (Tex.1965). Although a finding of cause-in-fact may be based on either direct or circumstantial evidence, it cannot be supported by mere conjecture, guess, or speculation. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003). Therefore, the causation evidence must show that the injury would not have occurred if the negligence had not occurred.⁷

In this case, it is undisputed that the rig was parked on the shoulder of the highway, out of the traveled lane of traffic, and that the accident occurred during daylight hours under dry weather conditions and clear visibility. Had Karen's van remained in the roadway, as would ordinarily be expected of a driver in the exercise of reasonable care in such driving conditions, there is no evidence that any mishap would have occurred. Conversely, there is no evidence that the mere presence of the rig on the shoulder or the absence of warning triangles could have itself reasonably compelled a driver who was maintaining a safe distance, speed, lookout, and the like to leave the roadway. Nor is there any evidence that any movement of Karen's van before, or while, drifting out of the lane of traffic toward the trailer on the shoulder was sudden or accompanied by any application of her brakes or abrupt steering change.⁸ Under these circumstances, the cause of the accident was whatever other event or condition caused the van to leave the roadway in the first place. Regardless whether that event or condition was an external factor or physical incapacity that was beyond Karen's control, or some other occurrence that was within her control, there is no evidence that the presence of warning triangles would have changed its effect in any way, let alone prevented the accident. Therefore, although putting out emergency warning triangles would unquestionably have been better than not doing so, any conclusion that the accident would not have occurred if they had been used would be wholly speculative. There is thus no evidence that the failure to put out warning triangles was a cause of the accident.⁹

Backing the Second Tractor into the Roadway

Regarding Reinicke's third alleged ground of negligence, backing the second tractor into the roadway in Karen's path, it is undisputed that...