Summary
recognizing that "[t]he opinion of an investigating officer with level two reconstruction training is admissible"
Summary of this case from TXI Transportation Co. v. HughesOpinion
No. 10-03-00113-CV
Opinion delivered and filed November 17, 2004.
Appeal from the 249th District Court, Somervell County, Texas, Trial Court # C2K09299.
Reversed and remanded.
Kevin B. Miller and Gerald D. Havemann, Law Office of Miller Associates, San Antonio, TX, for Appellants.
Robert L. Ramey and Jack McKinley, Ramey, Chandler, McKinley Zito, P.C., Houston, TX, for Appellees.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
This is a personal injury suit arising from a major multiple car/truck accident on Highway 67 at the Brazos River Bridge, which caused a fire completely destroying three of the vehicles and seriously injuring the occupants of the vehicles. The case was tried to a jury, which returned a verdict that the driver of a pickup truck (Joseph Heppler) was the cause of the accident. The trial court entered a take nothing judgment. Appellants assert in five issues: 1) error in denying Plaintiffs' jury submission on negligent entrustment; 2) error in admitting the report and opinion of DPS Trooper Wilson; 3) error in failing to strike the testimony of Defendants' accident reconstructionist, Joseph Hinton; 4) no evidence and 5) insufficient evidence to support zero damage findings. We will overrule issues two and three. We will sustain issues one, four, and five and will reverse the judgment and remand the cause for a new trial.
THE ACCIDENT
On June 30, 2004, Brent Shupe was the driver of a tractor trailer heading west bound on Highway 67 at about 65-70 mph. As he approached the Brazos River Bridge, which is an old, narrow, steel-encased suspension bridge, a truck-tractor pulling a wide load traveling east had stopped on the bridge, which caused traffic to stack up behind it. A van was several vehicles behind the wide load and a pickup truck driven by Heppler (Heppler pickup) was behind the van. The van came to a stop, and the Heppler pickup rear-ended the van causing the Heppler pickup to swerve into the west bound lane and into the path of Shupe's tractor trailer. The tractor trailer then hit the Heppler pickup, shearing a fuel tank and causing a fire and injuries to the occupants of the Heppler pickup. Shupe lost control of the tractor trailer and struck a Toyota (Lingafelter car) in the east bound lane causing damage and injuries to the occupants. The occupants of the Lingafelter car originally sued Heppler, Shupe, JCJ Trucking, and MCT. The occupants of the Lingafelter car settled with Heppler for policy limits of $20,000. The other four occupants of the Heppler pickup then intervened in this suit and were later named as Plaintiffs. Therefore, the occupants of the Lingafelter car and four of the occupants of the Heppler pickup are the Appellants, and Shupe, JCJ Trucking, and MCT are the Appellees.
Shupe was employed by JCJ Trucking who had a lease agreement with MCT to lease Shupe and the truck to MCT.
NEGLIGENT ENTRUSTMENT CHARGE
Appellants complain of the trial court's failure to submit a requested instruction on negligent entrustment.
Standard of Review
Texas Rule of Civil Procedure 278 requires a trial court to submit instructions and definitions to the jury as are necessary to enable the jury to render a verdict. TEX. R. CIV. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). Our review of the trial court's submission is under an abuse of discretion standard. European Crossroads' Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 54 (Tex.App.-Dallas 1995, writ denied). The trial court has broad discretion in submitting jury questions as long as the submission fairly places the disputed issues before the jury. Varme v. Gordon, 881 S.W.2d 877, 881 (Tex.App.-Houston [14th Dist.] 1994, writ denied). Controlling issues may be submitted by questions, instructions, definitions, or a combination thereof. Tex. R. Civ. P. 278; Wright Way Constr. Co. v. Harlingen Mall Co., 799 S.W.2d 415, 422 (Tex.App.-Corpus Christi 1990, writ denied). A trial court is afforded more discretion when submitting instructions than when submitting questions. Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470 (Tex.App.-San Antonio 1998, pet. denied). However, a trial court's discretion in submitting instructions is not absolute; the trial court must submit instructions "as shall be proper to enable the jury to render a verdict." See TEX. R. CIV. P. 277.
To determine if the failure to submit a requested instruction is error, we must consider the pleadings, trial evidence, and the entire charge. Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986) (op. on reh'g). Further, an error will be deemed reversible only if, when viewed in the light of the totality of the circumstances, it amounted to such a denial of the rights of the complaining party as was reasonably calculated to and probably did cause the rendition of an improper judgment. Id.
Proof of negligent entrustment requires: 1) entrustment of a vehicle by the owner; 2) to an unlicensed, incompetent, or reckless driver; 3) that the owner knew or should have known to be unlicensed, incompetent, or reckless; and 4) the driver's negligence on the occasion in question; 5) proximately caused the accident. Williams v. Steves Indus., Inc., 699 S.W.2d 570, 571 (Tex. 1985).
Jury Charge
During the charge conference, Appellants requested an instruction on negligent entrustment, which stated:
As to Midwest Coast Transport d/b/a MCT, "negligence" means entrusting a vehicle to an incompetent or reckless driver if the entrustor knew or should have known that the driver was incompetent or reckless. Such negligence is a proximate cause of a collision if the negligence of the driver to whom the vehicle was entrusted is a proximate cause of the collision.
The trial court denied this instruction. The trial court did provide instruction on how a fact may be established and provided definitions of negligence, ordinary care, proximate cause, sole proximate cause, and sudden emergency.
Question No. 1 submitted to the jury read:
Did the negligence, if any, of those named below proximately cause the occurrence in question?
Answer "Yes" or "No"
a. Midwest Coast Transport d/b/a MCT _______
b. Brent J. Shupe _______
c. Joseph Heppler _______
The jury answered "yes" for Heppler and "no" for MCT and Shupe.
Question No. 2 submitted to the jury read:
What percentage of the negligence that caused the occurrence do you find to be attributable to each of those found by you, in your answer to Question 1, to have been negligent?
The percentages you find must total 100 percent. The percentages must be expressed in whole numbers. The negligence attributable to a person named below is not necessarily measured by the number of acts or omissions found. The percentages attributable to a person need not be the same percentage attributed to that person in answering another question.
a. Midwest Coast Transport d/b/a MCT _______%
b. Brent J. Shupe _______%
c. Joseph Heppler _______%
TOTAL 100%
The jury answered "100%" for Heppler and "0%" for MCT and Shupe.
Was the Failure to Instruct Error?
Appellants pled negligent entrustment by MCT. Appellants also introduced evidence that: 1) Shupe was employed by JCJ Trucking who had a lease agreement with MCT to lease Shupe and the truck to MCT; 2) MCT was responsible to qualify and approve Shupe to drive; 3) MCT's qualification department qualified Shupe; 4) MCT's safety director, who had 37 years of experience at MCT, rejected this qualification due to Shupe's two prior driver's license suspensions and five speeding tickets; 5) MCT's vice president of safety vetoed this rejection; 6) Shupe drove on probation starting in November 1999 and was released to drive on his own on March 3, 2000; 7) Shupe received a speeding ticket on March 9, 2000; and 8) Shupe informed MCT of a ticket at his annual review, but MCT kept him qualified.
Based on the pleadings and the evidence, we find that Appellants were entitled to a jury instruction on negligent entrustment by MCT. Considering the entire jury charge, we find that the trial court did ask the jury to find whether the negligence, if any, of the owner (MCT) or the driver (Shupe), proximately caused the accident and based on this question, their percentage of negligence, if any. This submission placed only elements four and five of negligent entrustment before the jury. Thus, because the issue was raised by the evidence and because the trial court submitted only part of Appellants' theory of recovery, we find the trial court erred in not submitting elements one, two and three of negligent entrustment as set out in the jury instruction requested by Appellants. See TEX. R. CIV. P. 277; Varme, 881 S.W.2d at 881. The instruction requested by Appellants and denied by the trial court would have been sufficient to fully place this issue before the jury and provide guidance in its consideration of the negligence question as to MCT.
Was the Error Harmful?
Appellants argue that, as submitted, this whole case turned on whether the negligence of Heppler or Shupe caused the accident. They argue that if the jury had been properly instructed on negligent entrustment by MCT, the jury would have considered whether Shupe should have even been behind the wheel that day. Appellees, on the other hand, argue that there could be no harm because the jury found that Shupe was not negligent.
In addition to the evidence listed above regarding the issue of negligent entrustment, the evidence shows the following: 1) The Brazos River bridge is an old, narrow, steel-encased suspension bridge with only two lanes divided by a double yellow stripe, a low clearance, no shoulder, and a small curb only about one foot in width; 2) there is a shoulder before the bridge in the direction Shupe was driving to allow a vehicle to pull over; 3) the highway was busy that day because the Fourth of July holiday was approaching; 4) Shupe was carrying 15,000 — 20,000 pounds of cargo that day; 5) Shupe had never driven across this bridge before; 6) Shupe did not notice that in the oncoming lane, on the bridge, there was a stopped wide load, which had large "wide load" signs in yellow and black letters; 7) Shupe did not stop or significantly slow down as he approached the bridge, passed the wide load, passed 6-8 vehicles stopped behind the wide load (three of which were farm trucks with tanks); and 8) Father John Anderson (the driver of a vehicle close behind the wide load) testified that he was uncomfortable and scared when Shupe drove by him because of Shupe's speed and how close he was to his van because of the narrowness of the bridge.
The evidence clearly supports a negligent entrustment submission. Based on all of the evidence listed above, the jury, had it been properly instructed, could have found all the elements of negligent entrustment by MCT: 1) MCT entrusted the tractor trailer to Shupe (uncontroverted), 2) Shupe was a reckless or incompetent driver based on his driving record, 3) MCT knew of Shupe's driving record (uncontroverted), 4) Shupe was negligent in the context of negligent entrustment, and 5) his negligence proximately caused the accident. Because the jury verdict was against the proponent of the negligent entrustment issue (Appellants), the error was harmful. See Wright Way Constr. Co. v. Harlingen Mall Co., 799 S.W.2d 415, 424 (Tex.App.-Corpus Christi 1990, pet. denied) (trial court denied an instruction on the defense of estoppel; appellate court found that based on the evidence, the jury could have found that the appellee was estopped and because the jury verdict was against the proponent of the issue, the error was harmful). We believe that the evidence strongly supports a finding that Shupe was negligent. Thus, in light of the totality of the circumstances, we find that this jury charge error amounted to such a denial of the rights of the complaining parties that it is reasonably calculated to and probably did cause the rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1); see Island Recreational, 710 S.W.2d at 555.
We sustain issue one. We will remand the cause for a new trial.
EXPERT WITNESSES
We address issues two and three because they are likely to recur in a retrial.
Standard of Review
The standard of review for the admission of expert testimony is abuse of discretion, which is whether the trial court acted without reference to any guiding rules or principles. E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). A proponent must show that the expert witness is qualified, and that the expert's testimony is relevant to the issues of the case and is based on a reliable foundation. Id. at 556. For qualification, the trial court must determine if the expert has "knowledge, skill, experience, training, or education" that would assist the trier of fact in understanding the evidence or determining a fact issue. See Tex. R. Evid. 702. Whether a witness is qualified to offer expert testimony is a matter committed to the trial court's discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). To be relevant, the proposed testimony must be "sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Robinson, 923 S.W.2d at 556. To be reliable, the evidence must be grounded in the methods and procedures of science. Id. at 557.
Report and Opinion of Trooper Wilson
Prior to trial, Appellants filed a motion to strike Trooper Wilson's testimony. The trial court held a Robinson hearing and denied Appellants' motion. Trooper Wilson testified and his report stated that Heppler, the driver of the pickup truck, was the sole cause of the accident.
Appellants argue that allowing the report and opinion of Trooper Wilson was error because the trooper was not qualified as an accident reconstructionist and his testimony and report stated his opinion as to the cause of the accident. Appellants concede that Trooper Wilson's oral testimony and his report gave the same opinion. Appellees argue that Trooper Wilson had "level two accident reconstruction training" by the Department of Public Safety and was therefore qualified to give his opinion as to causation in his oral testimony and in his written report.
The opinion of an investigating officer with level two reconstruction training is admissible. See Sciarrilla v. Osborne, 946 S.W.2d 919, 920-23 (Tex.App.-Beaumont 1997, pet. denied) (finding investigating officer qualified after advanced accident reconstruction training); DeLeon v. Louder, 743 S.W.2d 357, 359 (Tex.App.-Amarillo 1988, writ denied) (finding investigating officer with accident reconstruction training qualified to testify regarding causation). An investigating officer's accident report, which contains his opinion on causation, is also admissible. McRae v. Echols, 8 S.W.3d 797, 800 (Tex.App.-Waco 2000, pet. denied). After reviewing the Robinson hearing, we find that the trial court did not abuse its discretion in finding Trooper Wilson qualified to give his opinion as to causation in his oral testimony. Tex. R. Evid. 702; Robinson, 923 S.W.2d at 556-58. Nor did the court err in admitting the accident report containing his opinion on causation. McRae, 8 S.W.3d at 800. We overrule issue two.
Testimony of Accident Reconstructionist
Prior to trial, Appellants filed a motion to strike Joseph Hinton's testimony. The trial court held a Robinson hearing and denied Appellants' motion. Hinton testified that Shupe recognized danger appropriately and could not have avoided the accident.
Appellants argue that Hinton was not qualified to give his opinion as to accident causation because he is not a commercial truck driver. Appellants admit that Hinton is qualified as an accident reconstructionist, but argue that Hinton's opinions were not reliable because they were based on "estimates" made by Trooper Wilson and that Hinton's calculations at 50 mph were irrelevant because they were not based on the facts of the case.
Appellees argue that an accident reconstructionist does not have to be a commercial truck driver to give his opinion as to causation. They also argue that Hinton's opinions have a reliable basis in the scientific principles of accident reconstruction, which includes calculations of perceptions, reaction time, skid time, and braking efficiency. They also state that his 50 mph calculations were performed to see if the accident was preventable.
We do not find any Texas precedent that an accident reconstructionist must also be a commercial truck driver to be qualified as an opinion expert. After a review of the Robinson hearing, we find that the trial court could determine: 1) Hinton is qualified because he had knowledge, skill, experience, training, and education that would assist the jury regarding the cause of the accident and Shupe's actions as the truck driver; and 2) his opinions are reliable because they are based on tested scientific principles of accident reconstruction. Thus, the trial court did not abuse its discretion in admitting his testimony. TEX. R. EVID. 702; Robinson, 923 S.W.2d at 556-58. We overrule issue three.
ZERO DAMAGES FINDING
Appellants argue that there is no evidence and insufficient evidence to support the jury findings of zero damages on all elements submitted. Appellees concede there is evidence of damages, but argue harmless error based on the jury's no-liability verdict. Because we reverse on the liability issues and remand for a new trial, we sustain issues four and five.
CONCLUSION
We overrule Appellants' second and third issues. We sustain Appellants' first, fourth, and fifth issues. We reverse the judgment and remand the cause for a new trial.
DISSENTING OPINION
On appeal, the plaintiffs complain that their burden at trial was not enough. They complain that the trial court erred by not imposing on them, as an instruction in the charge, all the elements of negligent entrustment. The defendants make various responses including one by MCT that the plaintiffs failed to prove even the elements that were submitted so, if there was error, it was harmless. The Court agrees with the plaintiffs. The plaintiffs are wrong; ergo, the Court is wrong.
ABSURD RESULT
If the damage to the parties, the law, and this Court's reputation was not so severe, what the Court does in this case would be an amusing logic problem to be discussed by philosophy students. But the result should come as quite a shock to any skilled appellate practitioner. In this case, a defense verdict is being reversed because the plaintiff objected to having fewer elements to prove than would have been required under a proper instruction for negligent entrustment. The plaintiffs were unable to prove even two, of five, required elements the Court says a plaintiff must establish to recover under a theory of negligent entrustment. How bizarre can it get if we reverse this case because three elements of a cause of action were not submitted but the plaintiff could have recovered by proving only two of the five elements? In this case, the plaintiffs had a lighter burden than required by law. But yet the plaintiffs failed to meet even this lighter burden, and the Court is still reversing the judgment so that the plaintiffs can try again! What the trial court did cannot be harmful error. The Court has been unable to direct the reader to a single case in which the complaining party on appeal successfully argued that elements upon which the complaining party had the burden of proof were omitted from the charge. I too have been unable to find any similar case.
NEEDLESS SUBMISSION
Next, it is not error to refuse to submit immaterial issues or instructions. Louisiana Arkansas Ry. Co. v. Blakely, 773 S.W.2d 595, 599 (Tex.App.-Texarkana 1989, writ denied). MCT and the plaintiffs agree that according to Federal Motor Carrier Regulations, MCT is liable for Shupe's negligence, if any, in the course and scope of his employment because he was treated as MCT's employee. 49 C.F.R. § 390.5 (2004). It is undisputed that Shupe was operating the truck in the course and scope of his employment at the time of the collision. Thus, there was no need to charge the jury on negligent entrustment because if the plaintiffs successfully proved Shupe negligent, MCT was liable for the full extent of the resulting damages caused by Shupe without regard to the need to prove the other elements of a negligent entrustment claim.
Further, to recover for negligent entrustment, it must be shown on the trial of the case that the driver, in this case, Shupe, was negligent. See Williams v. Steves Indus., Inc., 699 S.W.2d 570, 571 (Tex. 1985). Upon the trial of this case, after hearing all the evidence the Court repeats in its mantra, the jury refused to find Shupe negligent. Thus, any error in not instructing the jury on all the elements of one of multiple theories of negligence, specifically negligent entrustment, was harmless.
REJECTION OF THE JURY'S VERDICT
And if anyone questions why the Court is doing this, they need not search outside the opinion. The majority of this Court dismisses the jury's refusal to find that the plaintiffs proved Shupe negligent saying: "We believe that the evidence strongly supports a finding Shupe was negligent." We have never been authorized to substitute our view of the evidence for the jury's view of it. See e.g. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2000) ("It is a familiar principle that in conducting a factual sufficiency review, a court must not merely substitute its judgment for that of the jury.").
It is clear from a full review of the record that this case was about causation. Viewed objectively, the jury's verdict tells us that when Heppler was unable to stop in his lane of traffic and bounced his pick-up off the back-side of a van and into the oncoming lane of traffic directly into the path of an oncoming truck, it did not matter who was driving that truck or how that driver was operating it; there was going to be a wreck.
That was the first wreck. This Court's opinion is the second. Paraphrasing the Court, I believe that the record strongly supports the jury's refusal to find that anything other than Heppler's failure to control his vehicle was the proximate cause of this multi-vehicle wreck.
CONCLUSION
Because it cannot be error to refuse to submit an immaterial instruction, because it cannot be harmful error to the party with the burden of proof to submit less than all the elements of a claim, because it cannot be harmful error to submit other elements of a claim if the party with the burden of proof was unable to prove even the elements submitted, and because the Court simply disagrees with the jury's refusal to find Shupe negligent and reverses the judgment, I dissent.