Gator Gone Safety Pilots v. Holt

• Court: Texas Court of Appeals
• Writing for the Court: Kevin Jewell, Justice
• Citation: Gator Gone Safety Pilots v. Holt, 622 S.W.3d 524 (Tex. App. 2021)
• Decision Date: 09 March 2021
• Docket Number: NO. 14-19-00740-CV,14-19-00740-CV
• Parties: GATOR GONE SAFETY PILOTS, Appellant v. Garry W. HOLT, Appellee

622 S.W.3d 524

GATOR GONE SAFETY PILOTS, Appellant

v.Garry W. HOLT, Appellee

NO. 14-19-00740-CV

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

Opinion filed March 9, 2021

Rehearing En Banc Denied May 4, 2021

Robert T. Owen, Levon Hovnatanian, Mark R. Lapidus, Megal Lynette Knudsen, Andrea Christine Peel, David W. Prasifka, Walter F. Williams, III, Boe Bowen, Jason Oxner, Arpita Legha, Christopher Conatser, Brett Jackson Young, Jaqualine McMillan, Erin E. Lunceford, Travis Leverett, Houston, for Appellant.

Joshua Paul Davis, Houston, for Appellee.

Panel consists of Chief Justice Christopher and Justices Jewell and Zimmerer.

Kevin Jewell, Justice

Appellant Gator Gone Safety Pilots appeals a judgment notwithstanding the verdict following a jury trial. The dispute arises from injuries appellee Garry W. Holt received in an accident during the transportation of an oversized load along Interstate 10. A jury found Gator Gone 15 percent responsible and apportioned the remaining 85 percent responsibility among two other defendants. On Holt's motion, the trial court granted judgment notwithstanding the verdict, disregarded the jury's negligence findings against all defendants other than Gator Gone, and signed a judgment awarding Holt recovery of all his damages against Gator Gone.

Gator Gone asserts that the judgment is error because legally sufficient evidence supports the jury's findings against all three defendants. In cross-points, Holt urges that, should we find the jury's findings supported by legally sufficient evidence, we must nonetheless not render judgment on the verdict because (1) certain findings lack factually sufficient evidentiary support, and (2) Gator Gone's counsel presented improper jury argument.

For the reasons explained below, we conclude that the trial court erred in granting Holt's motion for judgment notwithstanding the verdict because legally sufficient evidence supports the jury's liability findings against all three defendants. Further, we determine that none of Holt's cross-points would vitiate the jury's verdict. Therefore, we sustain Gator Gone's issues, overrule Holt's cross-points, and reverse and render judgment in accordance with the jury's verdict.

Background

Bennett Motor Express, an experienced oversized load trucking company, was hired to transport oversized cargo from the Port of Houston to Corpus Christi. The load was 19 feet wide and 18 feet, 6 inches tall—dimensions necessitating specialized transportation measures and a permit from the Texas Department of Transportation ("TxDOT"). Bennett assigned Steven Jones to drive the truck carrying the load. Employed by Bennett since 2004, Jones had years of experience transporting oversized loads. A photograph of the loaded truck was introduced into evidence, and we reproduce it here:

According to Jones, Bennett was responsible for delivering the cargo safely to its destination. To assist with the job, Bennett hired a team consisting of three police motorcycle escorts, a "pilot" car company (Gator Gone), and a "bucket" truck company (VersaBucket LLC). The pilot car's purpose was to drive in front of the load truck with a long, fiberglass pole attached to the front of the car and extending straight up to a height exceeding the load's height. The pole "telescopes," meaning it retracts and extends, and it can be tightened by turning screws. If the pole touched an overhead obstruction, such as a cable or tree, the pilot car driver was to alert the team so that the bucket truck—following directly behind the pilot car—could raise the obstruction enabling the load truck to pass under it without incident. A rear escort car followed just behind the load truck to alert other drivers to the load and watch for contact with the load when the truck passed under obstructions. As Jones said, it is Bennett's responsibility to verify that the people it hires for the team are trained and qualified.

Gator Gone provided the pilot car, driven by Heidi LeClair, and the rear escort car, driven by Pamela Davidson. LeClair and Davidson are certified and experienced drivers. VersaBucket employees Lawrence Alanis and Hermino Cervantes operated the bucket truck. VersaBucket was a new company, and Alanis and Cervantes had received two or three months of on-the-job training before this trip, but no formal instruction. Neither Alanis nor Cervantes were certified drivers. This trip was VersaBucket's second job.

The transport would take several days, and Jones, being "in charge" of the team, led a pre-trip meeting among team members before leaving the port. One of Jones's responsibilities was to determine the height of the pilot car's pole. To do this, Jones had to account for everything that would establish the highest point of the load, which was essentially a "big box" and included six-inch lifting "lugs" or "hooks" protruding from the top. Jones determined that the load height, including the lifting hooks, was 18 feet, 6 inches. He instructed LeClair to set the pole's height at 19 feet, which she did. Jones personally verified that the pole was in fact 19 feet high before the trip began.

The load's height mandated an additional protective measure the parties refer to as "stripping." Stripping consists of one or more rows of wood or plastic pipe secured on top of the load from front to back. Here, two rows of one-and-a-half-inch PVC pipe was used. The ends of the PVC pipe extended at an arch a few feet over the front edge of the load and were tied with a rope or cord to the trailer. We reproduce here a photograph of the stripping's front end introduced into evidence:

The purpose of stripping, Jones explained, is to allow an overhead obstruction like a cable to glide over the top of the load so it does not catch on anything. VersaBucket installed the stripping on this load with Jones's agreement on how it was to be done. In particular, the stripping's high point was supposed to align with the top of the lifting hooks and be secured with wiring and tape. Correct installation of stripping is important because if the stripping slipped off or became unattached to the highest point of the lifting hook, then something like a cable could snag on the hook. Alanis had never installed stripping before beginning work with VersaBucket three months before this job. On prior jobs, Jones often inspected the stripping before beginning the transport; but, importantly, he did not remember whether he inspected the stripping on this job before they left the port.

During the trip's first hour, the pilot car encountered some obstructions that required raising by VersaBucket. The truck drove under them without incident. Although the pole can slip or retract when it hits obstructions because the screws might vibrate and loosen on impact, no one noticed any issue with the pole slipping or needing adjustment after they encountered the early obstructions. Because LeClair observed pole slippage on prior trips, she carefully watched the pole through a special mirror on her dashboard.

A little over an hour into the trip, the team approached an intersection on an access road adjacent to I-10. Several cables hung over the road; the lowest was a communication or data line, suspended underneath four power lines. According to an expert, the data line's height was 16 feet, 6 inches at its lowest point, and 18 feet, 3 inches at its highest. Though the pilot car's pole height was believed to be 19 feet, the pilot car drove under the data line first, and LeClair announced that the pole cleared the line without touching. Alanis and the lead police officer saw the pilot car drive through the intersection without the pole touching the line.¹ The bucket truck followed through the intersection, also without touching the data line. If the pilot car does not hit an overhead obstruction, that indicates to Jones that his load will not hit it either. The police officer signaled Jones to proceed. As the load was about halfway under the data line, Davidson, who was watching from the rear escort car, saw the line becoming taut. It appeared to her like the line was caught on something on top of the load. Although she could not see the top of the load, the side was visible and she saw the line being pulled. The line snapped, dropping to the access road and "bouncing around." Jones thought he saw sparks "a ways down" and stopped. A power line broke and fell to the main lanes of I-10, where it struck an eighteen-wheel vehicle driven by Holt. Holt suffered arm, wrist, and elbow injuries, requiring surgery.

Jones agreed it was fair to question whether the pole height was 19 feet when LeClair drove under the data line. According to LeClair, nothing had occurred during the trip's first hour that caused her to think the pole's height had slipped, but no one re-measured the pole during that hour. LeClair also believed that she drove her car underneath the lowest part of the line, as a pilot car driver is supposed to do. On prior jobs, LeClair said, the bucket truck would identify the lowest point for her, but VersaBucket did not do that on this trip. The wire hung at an angle, and the road may have had a pitch. LeClair also said that the load was rocking side-to-side a little, but not unusually so, and the wind was blowing.

After the accident, all the vehicles pulled into the parking lot of a nearby truck stop. One of the police escort officers told the team not to touch anything. Two people, however, may have disregarded that instruction. Cervantes said he saw LeClair remove the pole from her car and adjust it to "scoot it up." LeClair denied adjusting or measuring the pole at any time while they waited in the parking lot. Additionally, Davidson testified that she saw one of the VersaBucket employees on top of the load repairing or moving the stripping. Alanis also said that Cervantes checked the stripping at the truck stop, but he did not recall whether he made repairs. Cervantes did not remember if he checked the stripping at the truck...