Russell Equestrian Ctr., Inc. v. Miller

• Decision Date: 05 June 2013
• Docket Number: No. 04–12–00407–CV.,04–12–00407–CV.
• Citation: 406 S.W.3d 243
• Parties: RUSSELL EQUESTRIAN CENTER, INC., John William Russell, Individually and d/b/a Russell Equestrian Center, and Shane Brashar Russell, Appellants v. Samantha MILLER a/k/a Samantha Parker, Appellee.
• Court: Texas Court of Appeals

406 S.W.3d 243

RUSSELL EQUESTRIAN CENTER, INC., John William Russell, Individually and d/b/a Russell Equestrian Center, and Shane Brashar Russell, Appellants

v.Samantha MILLER a/k/a Samantha Parker, Appellee.

No. 04–12–00407–CV.

Court of Appeals of Texas, San Antonio.

June 5, 2013.

Aaron M. Pool, Ian R. Beliveaux, Donato, Minx, Brown & Pool, P.C., Houston, TX, for Appellants.

Larry A. Bruner, Rosa M. Guajardo, The Law Office of Larry A. Bruner, P.C., Gilbert Vara, Jr., The Law Office of Gilbert Vara, Jr., San Antonio, TX, Michael S. Box, Tobey Law Firm, Boerne, TX, for Appellee.

Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PATRICIA O. ALVAREZ, Justice.

OPINION

Opinion by: PATRICIA O. ALVAREZ, Justice.

This case arises from a collision between Appellee Samantha Miller's vehicle and two horses that escaped from the Russell Equestrian Center, Inc. Russell Equestrian Center, Inc., John W. Russell, and Shane B. Russell appeal the trial court's judgment on a jury verdict in favor of Miller on her claims of negligence and gross negligence. They assert that the trial court erred in admitting the testimony of Miller's expert and that the evidence at trial was legally insufficient to support the jury's finding of negligence and gross negligence. Because we conclude the evidence was legally sufficient as to negligence and legally insufficient as to gross negligence, we affirm in part and reverse in part the trial court's judgment.

Background

Russell Equestrian Center, Inc. (the Center) is a horse boarding and training facility located on Scenic Loop Road in San Antonio, Texas. The Center is owned and operated by John Russell and his wife, Shane Russell. The Center's perimeter is lined with a permanent fence (the perimeter fence). The Center's entryway is located on the portion of the perimeter fence separating Scenic Loop Road from the Center. This entryway did not contain a functioning gate; rather, there was gap in the perimeter fence.¹ The perimeter fence encompassed, among other buildings, barns, covered arenas, and the Russells' residence. Within the perimeter fence and towards the back of the Center, was a pasture enclosed by a smaller electric fence (the electric fence). This fence was electrified by strands of poly tape. On the night before the incident, four horses were confined in the pasture enclosed by the electric fence.

On the day of the accident, Miller, an elementary school teacher, was driving her car in the early morning on her way to work when she collided with two horses that escaped from the Center and made their way onto the road. Miller was injured and her car was totaled. Miller sued John Russell, Shane Russell, and Russell Equestrian Center, Inc. (collectively Russell Equestrian), asserting causes of action for negligence, negligence per se, and gross negligence. After a week-long jury trial, the jury returned a verdict in Miller's favor. The jury found John Russell and Shane Russell negligent and grossly negligent, and held Russell Equestrian Center, Inc. vicariously liable for all damages.

On appeal, Russell Equestrian challenges the legal sufficiency of the testimony of Robert Kingsbery, Miller's expert, and the jury's negligence and gross negligence findings. Specifically, Russell Equestrian asserts (1) the expert's testimony was conclusory and speculative and the trial court abused its discretion by failing to exclude it, (2) the evidence was insufficient on proximate causation and thus did not support the jury's finding of negligence, and (3) the evidence did not satisfy the heightened clear and convincing standard required for a gross negligence finding.

Expert Testimony

Russell Equestrian argues that Kingsbery's testimony was conclusory, speculative, and unreliable, and it should not have been admitted.

A. Standard of Review

Trial courts have broad discretion in determining the admissibility of expert testimony. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex.2006); U.S. Renal Care, Inc. v. Jaafar, 345 S.W.3d 600, 606–07 (Tex.App.-San Antonio 2011, pet. denied). Thus, we review the trial court's ruling on the admissibility of expert testimony for an abuse of discretion. Tamez, 206 S.W.3d at 578;Jaafar, 345 S.W.3d at 606–07.

B. Applicable Law

Texas Rule of Evidence 702 governs the admissibility of expert testimony. SeeTex.R. Evid. 702. The rule states that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Id.; accord Jaafar, 345 S.W.3d at 606. The proponent of expert testimony bears the burden of showing the testimony is admissible. Tamez, 206 S.W.3d at 578;Jaafar, 345 S.W.3d at 606.

Admissibility of expert testimony is governed by a two-prong test: the proponent of the testimony must show that the expert witness is qualified and that the testimony “is relevant to the issues in the case and is based upon a reliable foundation.” E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995); accord Jaafar, 345 S.W.3d at 606. “If the expert's testimony is not reliable, it is not evidence.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 713 (Tex.1997). Expert testimony is unreliable if there exists “too great an analytical gap between the data and the opinion proffered.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.1998) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). “Opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact ‘more probable or less probable.’ ” Coastal Transp. Co. v. Crown Cent. Petrol. Corp., 136 S.W.3d 227, 232 (Tex.2004) (quoting Tex.R. Evid. 401). Conclusory or speculative testimony is incompetent and cannot support a judgment. Id.

The Texas Supreme Court has “dr[awn] a distinction between challenges to an expert's scientific methodology and ‘no evidence challenges where, on the face of the record, the evidence lacked probative value.’ ” Id. at 233 (quoting Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 412 (Tex.1998)); accord City of San Antonio v. Pollock, 284 S.W.3d 809, 817 (Tex.2009). “When the testimony is challenged as conclusory or speculative and therefore non-probative on its face, ... there is no need to go beyond the face of the record to test its reliability.” Coastal Transp. Co., 136 S.W.3d at 233;accord Pollock, 284 S.W.3d at 817. “[E]ven when some basis is offered for an opinion, if that basis does not, on its face, support the opinion, the opinion is still conclusory.” Pollock, 284 S.W.3d at 817.

C. Analysis

Russell Equestrian asserts that Kingsbery's testimony is conclusory and speculative because it fails to explain how the alleged inadequacies of the electric fence and absence of a gate on the perimeter fence proximately caused the horses' escape. See Gammill, 972 S.W.2d at 726.

The uncontroverted evidence at trial shows that two “T-posts” on the electric fence were bent and the corner of that fence was “blown out.” Miller offered the testimony of Kingsbery, an expert on the proper installation of electric fencing for containing livestock. Kingsbery testified that the electric fence used to contain the horses at the Center was a temporary fence designed for use within an existing perimeter fence to control livestock and that poly tape manufacturers recommend that temporary electric fencing not be used as the sole means of containing livestock. He stated that the electric fence was improperly installed because it contained an inadequate number of ground rods and the manner in which the electrical wire was attached to the ground rod was improper. Kingsbery also testified that Russell Equestrian should have either installed a gate across the entryway or an actual physical barrier or perimeter fence to keep the horses in. In his opinion, a closed gate on the perimeter fence would have prevented the horses' escape. Ultimately, he opined that the Russells were negligent for failing to install a gate across the entryway to the Center and containing horses by a temporary, instead of a permanent, electric fence.

Although Kingsbery testified that the electric fence was inadequate, he never stated that the horses escaped because of the alleged inadequacies. Quite the reverse, he testified he did not know the precise manner in which the horses escaped, only that “generally an animal has to make actual contact with the T-post in order to make it bend” the way the posts bent in this case. Moreover, although he surmised that the horses would not have escaped had they been contained within a perimeter fence instead of a temporary electric fence, or had a gate been in place on the Center's perimeter fence, he admitted that had the horses run headlong into the electric fence, even a perimeter fence would not have contained them. He did not propose that the horses escaped the electric fence in any other manner. Moreover, he did not explain how failure to have a perimeter gate was negligent. Therefore, Kingsbery's testimony was speculative and conclusory, and should have been excluded in its entirety. See Coastal Transp. Co., 136 S.W.3d at 232. We sustain Russell Equestrian's first point of error. Having determined that Kingsbery's testimony is not entitled to probative weight, we must next determine whether Miller offered other legally sufficient evidence of negligence.

Negligence

In its second point on appeal, Russell Equestrian challenges the legal sufficiency of the jury's negligence finding. Russell Equestrian complains the evidence at trial failed to show that the horses' escape was proximately caused by its negligence.

A. Standard of Review

In reviewing the record for legally sufficient evidence, we must view the...