NO. 07-11-0044-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 25, 2012 _____________________________
ANTHONY BRINKER AND KELLY BRINKER,
Appellants v.
JIMMY EVANS, Individually and d/b/a JIMMY EVANS COMPANY, LTD.,
Appellee _____________________________
FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY;
NO. D-1-GN-09-000254; HONORABLE JEFF ROSE, PRESIDING _____________________________
Opinion _____________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Anthony Brinker and his wife Kelly (the Brinkers) appeal from a judgment denying
them recovery against Jimmy Evans, individually and d/b/a Jimmy Evans Company, Ltd.
(collectively referred to as Evans). The former sued the latter to recover damages for
injury sustained after an eighteen-wheeler tractor trailer driven by Anthony Brinker fell
off a road into a caliche pit. In seeking to reverse that judgment, the Brinkers contend
that the trial court erred in 1) granting a directed verdict on their claims of negligence,
negligence per se, negligent hiring, management and supervision, and gross negligence, 2) excluding evidence of several federal and state statutes pertaining to
safety measures applicable at certain locales, 3) excluding the testimony of the
Brinkers’ expert witness, 4) allowing evidence of other accidents and sleeping incidents
involving Anthony Brinker, and 5) instructing the jury on sole proximate cause. They
also complain about the legal and factual sufficiency of the evidence underlying the
jury’s verdict. We affirm the judgment.
Background
Evans was in the business of preparing sites for construction. As part of that
operation, it leased a caliche pit in Medina County. Anthony Brinker worked for a
trucking company that hauled caliche from the pit to the sites being prepared. The
accident at bar occurred as he attempted to leave the pit with a full load.
Egress from the area involved driving on a dirt and gravel road adjacent to the
hole. The road was allegedly wide enough to allow two vehicles to pass each other.
Furthermore, Evans had spaced multi-ton boulders between its edge and the pit to act
as barriers. On the day of the accident, Anthony Brinker, who was familiar with the
area, had acquired his load and began to leave. After negotiating a ninety-degree turn,
he proceeded down the boulder-lined dirt road with the drop-off and boulders to his left.
After travelling about three hundred to three hundred eighty five feet, his truck left the
surface of the roadway. Witnesses saw no effort on his part to stop. Nor did the
boulders impede his drop of thirty feet into the hole. Upon exiting the truck once it hit
bottom, Anthony Brinker asked what had happened and indicated that he had heard the
crunch of gravel and felt his vehicle shudder before leaving the road. He would later
argue that the road collapsed from under him.
2 Pictures of the scene revealed that the road contained a layer of gravel extending
from the boulders into the road for several feet. And, at the point where Anthony
Brinker’s vehicle dropped off, two furrows can be seen. Witnesses at trial testified that
the furrows or collapsed portion of the road were caused by the truck itself as it fell.
And, as illustrated by the pictures given the jury, none of the furrows extended across
the graveled area or into the road itself. Additionally, Anthony Brinker conceded that the
accident would not have occurred had he driven on the right side of the roadway.
As previously mentioned, the Brinkers sued Evans and alleged causes of action
for negligence, negligence per se, gross negligence, and negligent hiring, supervision
and management. The trial court directed a verdict against them on all but one of their
claims. The one that was submitted spoke of negligence, encompassed the theory of
premises liability, and asked the jury to determine whether the negligence, if any, of
either Anthony Brinker or Evans caused the accident. The jury answered that Anthony
Brinker’s negligence did.
Sufficiency of the Evidence – Is There Evidence of Brinker’s Negligence?
The first issue we consider is the allegation that the evidence was legally and
factually insufficient to sustain the jury’s verdict. We disagree and overrule the
contention.
No doubt, the Brinkers had the burden to prove the sole claim of negligence
submitted against Evans. And, as mentioned earlier, the jury answered “no” when
asked if the company was negligent. Since they now attack that answer as legally
insufficient, it is encumbent upon them to show, as a matter of law, that Evans was not
only negligent but also that its negligence caused Anthony Brinker’s injuries. Dow
Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (holding that “[w]hen a party 3 attacks the legal sufficiency of an adverse finding on an issue on which she has the
burden of proof, she must demonstrate on appeal that the evidence establishes, as a
matter of law, all vital facts in support of the issue”). In determining whether this was
done, we view the evidence in a light most favorable to the verdict and credit favorable
evidence if reasonable jurors could and disregard contrary evidence unless reasonable
jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827-28 (Tex. 2005). To
determine whether the finding was supported by factually insufficient evidence, we
weigh all of the evidence and set the verdict aside only if the evidence is so weak or if
the finding is against the great weight and preponderance of the evidence so as to be
clearly wrong and unjust. Dow Chemical Co. v. Francis, 46 S.W.3d at 242.
Appearing of record is evidence that 1) Anthony Brinker had driven the road
many times before and knew what the boulders signified, 2) there was enough space
between the boulders and the other side of the road to allow for two lanes of traffic, 3)
Anthony Brinker admitted the accident would not have happened had he stayed on the
right-hand side of the road, 4) Anthony Brinker did not attempt to brake his vehicle or
steer away from the drop-off before the accident, 5) the road crumbled because the
truck took it down as it fell, 6) the accident occurred three hundred to three hundred
eight five feet from the corner that Anthony Brinker had to negotiate to leave, 7) he had
ample room to straighten out the vehicle after making the turn, and 8) two eyewitnesses
testified that Anthony Brinker simply drove his truck over the side. This is some
evidence on which a rational jury could find that Evans’ non-feasance, if any, did not
cause the accident. Because we find evidence that supports the jury’s finding, we need
not consider further whether the Brinkers established Evans’ negligence as a matter of
law. Id. at 242. 4 And, while Evans did not erect a berm or guardrail or obtain engineered safety
systems, there was also evidence that a berm would have been no more effective and
less visible than the boulders and that an engineering study was not required because
the road already was reasonably safe. So, we cannot say that the evidence supporting
the jury’s verdict was weak or so against the great weight of all the evidence as to
render the verdict clearly wrong.
Directed Verdict
Next, the Brinkers argue that the trial court erred in directing a verdict on the
claims of 1) negligence, 2) negligence per se, 3) negligent hiring, management and
supervision, and 4) gross negligence. Evidence presented of record allegedly
warranted the submission of each chose-in-action. In response, Evans posits, among
other things, that the choses-in-action were irrelevant given the manner in which the
purported injuries arose. We overrule the issue.
According to the Brinkers’ live pleadings, the claims of negligence all involved the
condition of the road and surrounding premises on which he was obligated to drive.1
Either the common law or various statutory edicts obligated Evans to address the
dangerous conditions posed by the road and its juxtaposition to a rather deep pit, they
continued. And because remedial and ameliorative efforts to negate the risk of danger
were not undertaken, the Brinkers accused Evans of being negligent, negligent per se,
and grossly negligent. But, therein lies the problem. The circumstances about which
they complain cannot be prosecuted via such causes of action.
1 It contained “dangerous conditions,” posed “an unreasonable risk of harm to . . . ,” was not safe on the occasion in question,” “was not engineered” at the “brink’s edge,” lacked “signage, roadway dividers, guard rails, retaining walls, or other safety systems,” lacked “adequate berms and barriers,” was “improperly designed” and “defective,” and was not designed or maintained “in a safe manner.” And, because of all these purported deficiencies and instances of neglect of which Evans knew or should have known and disregarded, the roadway supposedly collapsed and caused Anthony Brinker to suffer injury. 5 The Brinkers do not suggest that any contemporaneous or affirmative activity
being undertaken by Evans or any of its employees caused Anthony Brinker injury.
Rather, his injury arose from conditions appearing on the land over which Anthony
Brinker traveled. And, injuries so caused may only be redressed under the theory of
premises liability. H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992);
Wyckoff v. George C. Fuller Constr. Co., 357 S.W.3d 157, 163-64 (Tex. App.–Dallas
2011, no pet.); accord Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex.
2010) (noting the difference between suits founded upon negligent activity on land and
those founded upon a condition of the premises itself and stating that negligent activity
encompasses a malfeasance theory based on affirmative, contemporaneous conduct by
the owner that caused the injury, while premises liability encompasses a nonfeasance
theory based on the owner's failure to take measures to make the property safe and
holding that the case was properly tried and submitted as a premises liability case,
since Smith primarily complained of Del Lago's nonfeasance, that is, its failure to
remedy an unreasonably dangerous condition for ninety minutes and failure to react
promptly once the fight started). Indeed, when asked by the trial court if the case was
“really a negligence case or . . . more a premises liability case . . . ,” counsel for the
Brinkers replied that “[i]t’s a premise liability case . . .” requiring proof of the standard of
care. Moreover, the rule expressed in H.E. Butt, Del Lago, and Wyckoff cannot be
avoided through “‘[a]droit phrasing of the pleadings to encompass design defects, per
se negligence or any other theory of negligence . . . . ’” Wyckoff v. George C. Fuller
Constr. Co., 357 S.W.3d 357 S.W.3d 157, 163-64 (Tex. App.–Dallas 2011, no pet.)
(quoting McDaniel v. Cont'l Apartments Joint Venture, 887 S.W.2d 167, 171 (Tex. App.–
6 Dallas 1994, writ denied)). So, the trial court was not obligated to submit general
theories of negligence, gross negligence, and negligence per se.
The same is also true of the allegation pertaining to negligent hiring and
supervision. Evans allegedly was nonfeasant by failing to hire an engineer or other
personnel to adequately design or inspect the road or otherwise render it safe for
“invitees” encountering the hazardous conditions upon it. This nonfeasance, according
to the verbiage appearing in his live pleading, “created conditions and an environment in
which injury to invitees was likely and reasonably foreseeable to occur, and which in
fact did occur . . . .” Given the nature of the allegations and their involvement with the
failure to remedy conditions appearing on Evans’ realty, they were nothing more than an
adroit rephrasing of a premises liability claim and, therefore, irrelevant.
Exclusion from Evidence of Federal and State Statutes
Next, we consider the complaint about excluding evidence of various federal and
state statutes. The statutes at issue were the Mine Health and Safety Act, the
Occupational Safety and Health Act, and the Pit Quarry and Safety Act. The Brinkers
thought them relevant to their negligence and negligence per se allegations. That is,
they were not trying to pursue causes of action created by those statutes, but rather to
use them to prove Evans was negligent and negligent per se, and the requirements of
those statutes coupled with an alleged failure to abide by them supposedly constituted
evidence of that negligence. So, the dispute before us is evidentiary in nature. That is,
we are asked to determine whether the trial court erred in excluding evidence the
Brinkers deemed pertinent to their claims.
Being a decision involving the admission or exclusion of evidence, we review it
under the standard of abused discretion. State v. Bristol Hotel Asset Co., 65 S.W.3d 7 638, 647 (Tex. 2001). Thus, if the ruling comports with guiding rules and principles and
is not otherwise arbitrary or capricious, then we cannot disturb it. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) (so describing the
standard of abused discretion). Moreover, the burden lies with the appellant to not only
prove an instance of abused discretion but also harm arising from it. McCraw v. Maris,
828 S.W.2d 756, 758 (Tex. 1992); In re R.A.L., 291 S.W.3d 438, 446 (Tex. App.–
Texarkana 2009, no pet.).
As previously discussed, the Brinkers’ claim against Evans sounded in premises
liability. Claims of negligence and negligence per se were not mechanisms through
which they could have recovered. Given this, the trial court was not obligated to admit
the statutes as evidence fostering the prosecution of those particular claims.2
We further note that the Brinkers fail to explain how they were harmed by their
exclusion, even if the legislative edicts were somehow pertinent. Instead, they simply
mention that they were harmed by their exclusion. Discussion about how the result
would have differed had proof of the statutes been admitted went missing, as did
discussion about how undertaking any of the remedial or investigative measures would
have prevented Anthony Brinker from driving off the road or suffering injury.3 Thus, the
2 This is not to say that the standards were irrelevant to the premises liability allegation. We do not address that matter for it was not raised by the Brinkers. 3 Brinker does assert in his brief that an expert “confirmed that the truck probably would not have gone through a concrete traffic barrier . . . and that a berm could have contained the vehicle.” Reviewing that portion of the record cited as support for those propositions discloses testimony that there “are possibly berms that might have contained the vehicle,” that “it would have to be a pretty amazing berm to do that,” that “I’m not saying it’s physically impossible, but it’s not terribly likely,” that “I can’t say that it would be reasonable to expect that kind of berm adjacent to a pit road,” “we don’t use berms to contain vehicles on roadways,” “a berm would not be nearly as visible as [the] rocks [that were present],” that concrete barriers are used “to keep cars on a roadway in a high-speed highway environment,” that concrete barriers are “very, very rarely used on a gravel road,” and “[i]f you put a . . . barrier up like you did on I-35 . . . I don’t think the truck probably would have gone through that at 10 or 15 miles an hour . . . [but] [i]f you simply put sections of concrete traffic barrier out there, [the truck] could perhaps have overcome that New Jersey barrier, the concrete barrier.” These passages show that the assertions made 8 Brinkers failed to carry their burden on appeal, which, in turn, obligates us to overrule
the issue.
Exclusion of Expert Witness
Next, the Brinkers complain of the trial court’s decision to exclude the
testimony of their expert, Dr. Yildirim. Their argument is twofold. First, they posit that
because a different judge assigned to consider the matter before trial held it admissible,
the judge trying the case had to defer to the ruling. Next, they argue that the witness
was qualified to opine that the road collapsed and that the collapse caused the accident.
We overrule the issue.
As for the proposition that the ruling could not be changed, it does appear that
the matter of Yildirim testifying was addressed pretrial by a jurist other than the one who
ultimately tried the case. Furthermore, the first judge did permit him to testify. But once
trial began, counsel for Evans re-urged its complaints about the witness, with which
complaints the judge presiding over the actual trial agreed. So, what we have before us
is a situation in which the trial court changed its mind. Can it do that while it retains
plenary jurisdiction over the dispute? We whole-heartedly say yes, as did the Texas
Supreme Court in In re Baylor Med. Center at Garland, 280 S.W.3d 227, 231 (Tex.
2008). “‘A trial court's plenary jurisdiction gives it not only the authority but the
by the Brinkers above are somewhat out of context. As suggested by the expert, most anything is possible, but possibilities as opposed to reasonable probabilities are not evidence. Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106, 118-19 (Tex. App.–Dallas 2009, pet. denied). More importantly, we have been cited to no evidence indicating what size of berm would or could have worked or whether it was even feasible to install a berm of that unknown size on the road. Nor were we cited to any provision within the statutes or regulations at issue requiring the erection of the “pretty amazing” berm contemplated by the expert or of I-35 type concrete barriers on a private dirt road where travel proceeds slowly. And, as for the reference to concrete barriers, one could interpret the Brinkers’ argument as effort to impose upon Evans the duty to install on its private, gravel/dirt road safety devices designed for and used on interstate highways. Indeed, much of the evidence about available safety measures that they discussed concerned measures utilized on major traffic arteries, like I-35, as opposed to private dirt roads. Comparing apples to oranges or talking about non-specific “what ifs” provides us with little basis on which to find harm. 9 responsibility to review any pre-trial order upon proper motion.’” Id., quoting Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985).
As for the question of whether the court’s decision was wrong, the Brinkers
proffered Yildirim as a soil engineer expert who would opine on what caused the vehicle
to leave the roadway. In particular, he intended to testify that it was “possible,”
“probable” or “likely” that the ground underneath the eighteen-wheeler collapsed which
caused the vehicle to fall into the pit. Furthermore, the Brinkers believed Yildirim
qualified to so opine because of his educational background, experience, observation of
pictures taken immediately after the incident, and journey to the accident site several
years later.
Yet, the trial court characterized Yildirim’s testimony as speculation “about
possibilities.” It based its observation upon the “fact that he is not an accident
reconstructionist,” “the fact that he doesn’t seem to have done the work that even might
help someone in his discipline do this,” his admission “throughout that it would take soil
testing to determine whether any of the many possibilities that he sees actually occurred
. . . .” and those tests were not taken, and his delay in going to the scene “until years
later” (and after it had been altered by Evans). So, the testimony was excluded due to
its unreliability.
As with the prior issue, this one also involves the exclusion of evidence and is
controlled by the same standard of review-abused discretion. Exxon Pipeline Co. v.
Zwahr, 88 S.W.3d 623, 629 (Tex. 2002). So we must determine whether it deviated
from controlling guidelines and principles. Next, one such principle tells us that an
expert’s testimony is unreliable if it is not grounded in methods and procedures of
science and is no more than subjective belief or unsupported speculation. E.I. du Pont 10 de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). That rule
prevents us from deeming the trial court’s decision an example of abused discretion.
Yildirim’s expert report and deposition appear in the record. Through them, we
see that he is an expert related to pavements but not an accident reconstructionist. We
further note his concession that there were two possible scenarios explaining what
occurred. The first involved the road actually collapsing. The second concerned
Anthony Brinker merely driving off the edge of the road into the pit. Yildirim also
acknowledged that he engaged in a “number of assumptions” because the “. . . study
was entirely based on photographs and since no soil testing was done.” Other
admissions of his were 1) that “[w]hether or not it [was] safe for trucks to travel along the
road adjacent to the cliff can be confirmed only by conducting an elaborate slope
stability analysis and detailed soil testing” and 2) that while he had doubts about the
stability of the cliff’s slope, his “findings cannot be conclusive unless detailed soil testing
and slope stabililty analysis are done.” But, again, none were. To this, we add the
evidence that Yildirim did not visit the accident scene until several years later. By then,
Evans had altered the road and pit.
At this point, we harken back to another guiding principle. It tells us that the
mere possibility rather than reasonable probability of causation is no evidence.
Schaefer v. Tex. Employers’ Ins. Ass’n, 612 S.W.2d 199, 204-05 (Tex. 1980); W.C.
LaRock, D.C., P.C. v. Smith, 310 S.W.3d 48, 56-57 (Tex. App.–El Paso 2010, no pet.);
Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106, 118-19 (Tex. App.–Dallas 2009,
pet. denied); see also Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706,
711-12 (Tex. 1997) (stating that causation opinions based on possibility, speculation,
and surmise are not evidence). Given the timing of Yildirim’s investigation, his 11 assumptions, his failure to undertake tests he admitted were necessary, and his
recognition of at least two differing scenarios related to causation, a jurist could
rationally conclude that his opinions were little more than statements about possibilities
as opposed to reasonable probabilities and, therefore, unreliable. So, the trial court did
not abuse its discretion when it excluded them.
Admission of Other Accident and Napping
Next, the Brinkers complain of the trial court's decision allowing Evans to
introduce evidence of another vehicle accident involving Anthony Brinker as well as
instances of him having been caught napping. They contend that it was inadmissible
under Texas Rules of Evidence 403 and 404. We overrule the issue.
Again, the burden lay with the Brinkers to not only establish error but also
illustrate that it probably caused the rendition of an improper verdict. McCraw v. Maris,
828 S.W.2d at 758; In re R.A.L., 291 S.W.3d at 446. And, while the Brinkers discuss
the merits, or lack thereof, underlying the decision to admit the evidence in question,
they say nothing of how it affected the outcome. Thus, they failed to show themselves
entitled to reversal. Yet, even if we were to assume that the decision was wrong and
undertake, sua sponte, a harm analysis, we would have to conclude that admission of
the evidence did not probably cause the rendition of an improper judgment.
Anthony Brinker conceded that he was partially responsible for the incident and
that it would not have occurred had he driven on the right, as opposed to the left, side of
the road. An eyewitness also testified that Anthony Brinker simply drove off the edge
without attempting to brake and that any collapse in the road was caused by the vehicle
itself as it dropped into the pit. Moreover, pictures of the scene taken immediately after
the accident disclose an intact road, as opposed to one that collapsed. Given this and 12 the rather large body of evidence supporting the verdict, we can but only conclude that
the admission of the evidence in question was harmless.
Instruction on Sole Proximate Cause
The final issue we address concerns the trial court’s decision to instruct the jury
on sole proximate cause. The Brinkers contend that it should not have done so
because “the jury may have believed that defendant’s site manager [who was not a
party] . . . was at fault because he failed to abide by Curtis Griffin’s instruction to erect a
solid barrier wall” as opposed to a wall consisting of intermittently spaced boulders. We
overrule the issue.
Per the instruction, the jurors were told not only that there “may be more than
one proximate cause of an event” but also that “if an act or omission of anyone who is
not a party to the suit was the ‘sole proximate cause’ of the occurrence, then the act or
omission of any party could not have been a proximate cause.” The trial court then
instructed them to determine whether either or both Anthony Brinker and Evans were
negligent. They answered “yes” as to Anthony Brinker and “no” as to Evans. This is of
import because irrespective of whether the trial court had legitimate basis to submit the
foregoing instruction, the ultimate verdict rendered the purported mistake meaningless.
That is, the instruction allowed the jury to consider whether someone other than
the parties could have solely caused the incident. Yet, it answered that only the
negligence of Anthony Brinker, a party to the suit, proximately caused the occurrence.
So, it did not matter if the jury was told that causation could be attributed to some
stranger to the litigation; it attributed both negligence and causation to an actual party.
City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995) (stating that 1) the
submission of an improper jury question can be harmless error if the jury's answers to 13 other questions render the improper question immaterial, 2) a jury question is
considered immaterial when its answer can be found elsewhere in the verdict or when
its answer cannot alter the effect of the verdict, 3) an immaterial issue is not harmful
error unless the submission confused or misled the jury, and in determining whether a
particular question could have confused or misled the jury, we consider its probable
effect on the minds of the jury in the light of the charge as a whole); Crowson v. Bowen,
320 S.W.3d 486, 489 (Tex. App.–Fort Worth 2010, no pet.) (stating the same). And,
because the jury would have had to ignore the sole proximate cause instruction to arrive
at the decision it did, we cannot see how the verbiage confused or misled the factfinder.
Having overruled all issues, we affirm the judgment.
Brian Quinn Chief Justice