Builders Transport, Inc. v. Grice-Smith

• Decision Date: 09 March 2005
• Docket Number: No. 10-01-00130-CV.,10-01-00130-CV.
• Citation: 167 S.W.3d 1
• Parties: BUILDERS TRANSPORT, INC. ("BTI"), Appellant, v. Loretta Yvette GRICE-SMITH, Individually, and as the Representative of the Estate of Roy Cell Smith, Jr., Deceased, et al., Appellees.
• Court: Texas Supreme Court

Page 1

167 S.W.3d 1

BUILDERS TRANSPORT, INC. ("BTI"), Appellant, v. Loretta Yvette GRICE-SMITH, Individually, and as the Representative of the Estate of Roy Cell Smith, Jr., Deceased, et al., Appellees.

No. 10-01-00130-CV.

Court of Appeals of Texas, Waco.

March 9, 2005.

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Stephen G. Tipps, Baker Botts, LLP, Houston, Joseph H. Pedigo, Bellaire, for appellant.

Alton C. Todd, Law Office of Alton C. Todd, Friendswood, Anthony P. Griffin, Anthony P. Griffin, Inc., Galveston, Dale Williams, Williams, Squires & Wren, Waco, Joseph M. Nixon, Phillips & Akers, Houston, for appellees.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

The surviving relatives of Roy Cell Smith, Jr. (collectively, "Appellees") filed a wrongful death and survival action against Builders Transport, Inc. and its employee John Alfred Landry for damages sustained after a semi owned by Builders Transport and driven by Landry overturned, ejecting Smith who died as a result. A jury found in Appellees' favor and awarded them $4.4 million in damages. Builders Transport¹ contends on appeal that there is no evidence or factually insufficient evidence to support the verdict, that the court improperly charged the jury on Appellees' theories of recovery, and that the jury's award of $1 million for Smith's pain and mental anguish is excessive.

Because the charge failed to require the jury to determine the factual predicates necessary to determine whether Builders Transport was negligent under the theories alleged and because the charge failed to require the jury to determine whether Landry had actual or apparent authority to invite Smith to ride with him, we will reverse and remand.

FACTUAL BACKGROUND

Landry applied for a job with Builders Transport in June 1995. Builders Transport hired Landry after he completed Builders Transport's three-week driver training program and obtained a commercial driver's license. Landry then completed a four-week on-the-job training program, driving under the supervision of other company drivers.

On the occasion in question, Landry was delivering a load of tires to a plant in Houston. When he arrived on a Saturday morning, he learned that the plant was closed for the weekend. He decided to visit his brother in Galveston. While there he came in contact with Smith, a friend of his. Smith asked Landry to take him to Builders Transport's headquarters in Dallas the following Monday so he could apply for a job. Smith also asked him to take Smith's friend Anthony Henry. Although Landry knew that company policy prohibited drivers from transporting passengers, he agreed to take Smith and Henry to Dallas after delivering the tires to the plant in Houston.

Landry consumed alcoholic beverages and narcotics over the course of the weekend. Henry saw Landry drinking a 40-ounce can of malt liquor shortly before they left Galveston. As they were leaving Galveston, the trailer came unhooked. While Landry reconnected the trailer, he asked Smith and Henry to buy him another drink. They got him a 16-ounce malt liquor which Landry drank as they drove to Houston.

The semi overturned as Landry exited the interstate in Houston. Smith was ejected from the cab when it overturned. The semi skidded on its side along a concrete retaining wall and a guardrail for about 200 feet.

The medical examiner opined that the trailer ran over Smith and mangled the lower part of his body as it passed over. The medical examiner testified that Smith was conscious when he was ejected from the cab and lost consciousness sometime thereafter.

Landry pleaded guilty to intoxication manslaughter.

PROCEDURAL BACKGROUND

Smith's wife Loretta Yvette Grice-Smith filed a wrongful death and survival action against Builders Transport and Landry in her individual capacity, as representative of his estate, and as next friend for their three minor children. Smith's parents and the mother of his fourth child were also plaintiffs. Appellees alleged that Builders Transport was vicariously liable for Landry's negligence under the theory of respondeat superior. Appellees alleged that Builders Transport was directly liable for its own negligence under theories of negligent hiring, negligent training, negligent supervision, and negligent entrustment.

The court directed a verdict in Appellees' favor on the question of Landry's negligence. The court submitted questions to the jury regarding: whether Landry was acting in the scope of his employment on the occasion in question; whether the negligence of Builders Transport, if any, was a proximate cause of the occurrence; whether Smith's negligence, if any, was a proximate cause; the apportionment of responsibility among those found negligent; and compensatory damages.

The jury found that Landry was acting in the scope of his employment and that the negligence of Builders Transport and of Smith were proximate causes of the occurrence. The jury apportioned responsibility among Landry, Builders Transport, and Smith as follows: Landry 55%; Builders Transport 30%; and Smith 15%. The jury awarded $1 million for Smith's pain and mental anguish and for funeral and burial expenses. The jury awarded $600,000 to Smith's wife and each of his four children for past and future damages. The jury awarded $200,000 to each of Smith's parents for past and future damages.

NEGLIGENCE

Builders Transport contends in its third through sixth issues respectively that there is no evidence or factually insufficient evidence to support the jury's finding of negligence under Appellees' theories of negligent hiring, negligent training, negligent supervision, and negligent entrustment.² Because the trial court submitted a broad-form negligence question, the verdict must be upheld against a sufficiency challenge if the record contains sufficient evidence to support a finding on any one of these theories. See Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156 160 (Tex.1995); In re C.N.S., 105 S.W.3d 104, 105 (Tex.App.-Waco 2003, no pet.).

Builders Transport argues in its fourth issue that there is no evidence or factually insufficient evidence to support the jury's finding that it was negligent in training Landry. Because we conclude that the record contains some evidence and factually sufficient evidence to support the jury's finding under this negligence theory, we do not address Builders Transport's third, fifth, and sixth issues. Id.

STANDARD OF REVIEW

When we decide a "no evidence" point, "we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor." Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998); Honda of Am. Mfg., Inc. v. Norman, 104 S.W.3d 600, 604 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); Burleson St. Bank v. Plunkett, 27 S.W.3d 605, 612 (Tex.App.-Waco 2000, pet. denied). We will sustain a no evidence point if: (a) there is a complete absence of evidence of a vital fact; (b) we are barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003). "More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence." Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex.2002).

A factual sufficiency issue requires us to determine whether the challenged "finding is so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias." In re C.H., 89 S.W.3d 17, 25 (Tex.2002).

APPLICATION

Landry's trainer James Alexander had only a weekend course to prepare for being a trainer. Alexander had never "failed" a trainee, although an unspecified number of his trainees were subsequently terminated for "carelessness" after they had accidents. Landry testified that Alexander released him from training when Landry told Alexander he was ready, from which a rational juror might infer that Alexander allowed Landry to decide when he had received adequate training.

According to Builders Transport policy, only the terminal manager can formally release an employee to drive solo. The terminal manager did not release Landry to drive solo until ten days after the fatal accident. Despite Builders Transport's protestations to the contrary, a rational juror could interpret this to mean the terminal manager did not believe Landry had received adequate training to drive solo until ten days after the occurrence in question. Landry's brother testified that Landry told him he failed the backing portion of his driving test three times, from which a rational juror might infer that Landry never received adequate training for this driving skill.

This constitutes more than a scintilla of evidence that Landry received inadequate training which was a proximate cause of the occurrence in question. See Minyard Food Stores, 80 S.W.3d at 577.

Other evidence in the record tends to contradict the jury's finding. Alexander testified that his qualifications to train drivers included not only the weekend course but also his years of experience as a driver for Builders Transport and for his previous employer. Alexander explained that on several occasions he had required trainees to continue their training beyond the usual thirty days because they were not ready to be released. Landry explained that a trainer typically released a trainee only when the trainee felt comfortable and the trainer believed the trainee was ready, thus discounting any inference from Landry's testimony that Alexander released him...