Court of Appeals Tenth Appellate District of Texas
10-23-00346-CV
Roger Landry, Kenneth Porter and Q.A. Services, L.L.C., Appellants
v.
Philip Currie and Charlotte Currie, Appellees
On appeal from the 77th District Court of Limestone County, Texas Judge Pat Simmons, presiding Trial Court Cause No. 31883-A
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
After being injured in a motor vehicle accident, Philip and Charlotte
Currie filed suit against Roger Landry, Kenneth Porter, and Q.A. Services,
L.L.C. The Curries alleged negligence and gross negligence claims against
Landry, a negligent entrustment claim against Porter, and claims of
respondeat superior and negligent supervision, training, and retention,
against Q.A. The jury found that Landry was acting in the scope of his employment with Q.A. and that the negligence of Landry, Porter, and Q.A.
proximately caused the occurrence in question. The jury apportioned
responsibility as 30% for Landry, 20% for Porter, and 50% for Q.A. The jury
awarded Charlotte $34,888,255.00 in damages, Philip $5,746,547.00 in
damages, and $806,400.00 in punitive damages against Landry to be shared
equally by Charlotte and Philip. The trial court entered judgment on the jury
verdict.
After entering judgment, the trial court signed a suggestion of remittitur
reducing Charlotte’s damage award to $9,299,555.00 and Philip’s damage
award to $5,242,285.00. Charlotte and Philip accepted the remittitur. This
appeal followed. 1
Issues on Appeal
Porter and Q.A. together raise six issues on appeal: (1) the evidence is
legally and factually insufficient to support the jury’s negligent entrustment
finding against Porter, (2) the Curries sought and obtained submission of an
improper negligence theory against Q.A., (3) the evidence is legally and
factually insufficient to support the jury’s finding that Landry was acting in
the scope of his employment with Q.A., (4) the evidence is legally and factually
insufficient to support the jury’s negligence finding against Q.A., (5) the entire
1 Philip and Charlotte filed Notice of Cross-Appeal on November 15, 2023, and on December 1, 2023, they filed an Unopposed Motion to Voluntarily Dismiss Cross-Appeal. That motion is granted.
Landry v. Currie Page 2 judgment should be reversed and remanded for a new trial in the event this
Court sustains Issues 2, 3, and/or 4, and (6) the evidence is legally and factually
insufficient to support the damages awarded to the Curries.
Landry argues on appeal that (1) the evidence is legally and factually
insufficient to support the noneconomic damages awarded to Charlotte and
Philip, and (2) because the evidence is insufficient to support the noneconomic
damages, the jury’s exemplary damages award should be reversed. We modify
the judgment and affirm as modified.
Background
Porter is a co-owner of Q.A, a company that builds cellular phone towers
at various locations. Porter owned several trucks that were driven to the
jobsites by Q.A. employees, and the “company yard” was located at his
residence. Landry, a former employee of Q.A., traveled to the jobsites where
he helped build the cellular phone towers. Landry was authorized to drive
Porter’s vehicles for Q.A., and in December 2019, he drove to a jobsite near
Canadian, Texas.
While at the jobsite, Landry became ill and went to a local hospital.
After not being able to work for two days, Landry contacted Porter and asked
if he could return home because he was unable to perform his job requirements.
Porter sent another employee to the jobsite and allowed Landry to return
home. Landry left the jobsite in Porter’s vehicle, and he planned to return the
Landry v. Currie Page 3 vehicle to the company yard where his girlfriend would meet him and take him
home.
Landry admitted that he had smoked marijuana the night before he
drove home and that he had consumed alcohol on the drive home. At an
intersection in Limestone County, Landry ran through a stop sign and collided
with the Currie’s pickup. After the accident, Landry gave a blood sample that
revealed a blood alcohol content of 0.114 and also detected marijuana. Landry
was convicted of intoxication assault and sentenced to seven years
confinement.
The Currie’s had extensive injuries from the collision. Charlotte suffered
an aortic rupture that was life threatening as well as a significant abdominal
injury that caused severe damage to her large and small intestines. Charlotte
also had rib fractures and contusions to both of her kidneys. Charlotte
remained in a medically induced coma for approximately one month. After
being released from the hospital and a rehabilitation center, Charlotte went to
live with her daughter because she could not care for herself. Charlotte
continued to live with her daughter at the time of trial.
Philip suffered a severe fracture of his arm that caused a blood clot to
form in the major artery supplying blood to the arm. Because of his trauma
and injuries, Philip had a stroke that resulted in a loss of his peripheral vision.
Philip also had rib fractures and a severe laceration to his tongue. After being
Landry v. Currie Page 4 released from the hospital, Philip went to live with his sister because he could
not care for himself. He eventually moved back to his home, and his brother
moved in to help care for him.
Porter and Q.A.’s Issue One
Porter and Q.A. argue in the first issue that the evidence is legally and
factually insufficient to support the jury’s negligent entrustment finding
against Porter.
Standards of Review and Applicable Law
Legal Sufficiency
When a party challenges the legal sufficiency of an adverse finding on an
issue on which they did not have the burden of proof, the party must
demonstrate on appeal that no evidence supports the adverse finding.
Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). Evidence is viewed in
the light most favorable to the verdict. City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005). Anything more than a scintilla of evidence is legally
sufficient to support the finding. See Cont’l Coffee Prods. Co. v. Cazarez, 937
S.W.2d 444, 450 (Tex. 1996).
Factual Sufficiency
In a factual-sufficiency review, we consider all of the evidence in the
record in a neutral light and set aside the jury’s verdict only if it is so contrary
Landry v. Currie Page 5 to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see Republic Petroleum v.
Dynamic Offshore Res. NS LLC, 474 S.W.3d 424, 433 (Tex. App.—Houston [1st
Dist.] 2015, pet. denied). Jurors are entitled to resolve inconsistencies in
witness testimony, whether those inconsistencies result from the contradictory
accounts of multiple witnesses or from internal contradictions in the testimony
of a single witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986);
see Republic Petroleum, 474 S.W.3d at 433.
Negligent Entrustment
The elements of negligent entrustment are: (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;
(4) who was negligent on the occasion in question; (5) and whose negligence
proximately caused the accident. Schneider v. Esperanza Transmission Co.,
744 S.W.2d 595, 596 (Tex. 1987) (internal citations omitted). For entrustment
to be a proximate cause, the defendant entrustor should be shown to be
reasonably able to anticipate that an injury would result as a natural and
probable consequence of the entrustment. Schneider, 744 S.W.2d at 596.
Discussion
When Landry was hired in December 2018, Q.A. checked his driving
record, and it was “clean.” Porter stated that as of June 2019, Landry did not
Landry v. Currie Page 6 have any driving convictions and was cleared by the insurance company to
drive his vehicles.
In July 2019, Landry was arrested for public intoxication and resisting
arrest. He was not working for Q.A. on the day of his arrest, and he was not
at a jobsite. The record shows that Porter was aware of that arrest. On
September 19, 2019, Landry was arrested for driving while intoxicated. Again,
Landry was not working at the time and was not at a jobsite. Landry was
convicted of driving while intoxicated, but his driver’s license was not
suspended. The record shows that Porter was aware of Landry’s arrest and
instructed him not to drink alcohol in any of his trucks or take any of his trucks
to a bar. There is no evidence that Landry had any prior accidents or driving
infractions while operating Porter’s vehicles.
There is no dispute that Porter entrusted his vehicle to Landry, that
Landry was negligent on the occasion in question, and that Landry’s negligence
was the proximate cause of the accident. The parties dispute whether Landry
was a reckless driver and whether Porter knew or should have known that
Landry was a reckless driver.
Porter cites Allways Auto Group, Ltd., v. Walters in support of his
argument that the evidence does not support the jury’s finding on negligent
entrustment. 530 S.W.3d 147 (Tex. 2017) (per curiam). In Allways, an auto
dealer, Allways Auto Group, provided a loaner vehicle to Heyden, who had
Landry v. Currie Page 7 prior arrests for driving while intoxicated and did not have a valid driver’s
license at the time of the entrustment. Id. at 148. Heyden admitted that he
was intoxicated at the time of the entrustment, but the salesperson did not
observe any obvious signs of intoxication. Id. Eighteen days after Allways
provided the vehicle to Heyden, he had an accident in the loaner vehicle that
injured another person. Id. at 147. Heyden was intoxicated at the time of the
accident and was convicted of intoxication assault and driving while
intoxicated. Id. at 148.
The Court held that Allways established that its providing Heyden a
loaner car was not a proximate cause of his injuring the other party eighteen
days later. Id. at 149. The Court stated, “[f]or entrustment to be a proximate
cause, the defendant entrustor should be shown to be reasonably able to
anticipate that an injury would result as a natural and probable consequence
of the entrustment.” Id. at 148 (citing Schneider, 744 S.W.2d at 596). The
Court noted that if Heyden were visibly intoxicated when he got the loaner
vehicle, Allways could reasonably have anticipated he might have a wreck
before he sobered up, but that Allways could not have foreseen that Heyden
would get drunk eighteen days later and have an accident. Id. at 148-49.
Unlike Allways, there is evidence to support a finding that Landry was
a reckless driver and that Porter knew or should have known that Landry was
a reckless driver. See Schneider, 744 S.W.2d at 596. Recklessness is defined
Landry v. Currie Page 8 as an act that the operator knew or should have known posed a high degree of
risk of serious injury. See 4Front Engineered Solutions, Inc., v. Rosales, 505
S.W.3d 905, 911 (Tex. 2016) (citing City of Amarillo v. Martin, 971 S.W.2d 426,
430 (Tex. 1998)). There is no dispute that Landry was driving while
intoxicated at the time of the collision with the Curries. Landry arrest for
driving while intoxicated was approximately three months before the collision
with the Curries. After his arrest, Landry was instructed by Porter not to
drink in any of Porter’s vehicles, but he ignored that instruction. Evidence of
a driver’s prior arrest for driving while intoxicated support a jury’s finding that
a driver was reckless. See Atlantic Indus., Inc. v. Blair, 457 S.W.3d 511, 518
(Tex. App.—El Paso 2014), reversed on other grounds, 482 S.W.3d 57 (Tex.
2016) (per curiam).
There was evidence that Porter knew or should have known that Landry
was a reckless driver. Unlike other negligent entrustment cases where the
reckless driving record was discoverable through background checks, Porter
was personally aware of Landry’s reckless behavior. Six months prior to the
collision with the Curries, when Landry was arrested for public intoxication,
Porter bailed him out of jail. Porter acknowledged that he bailed Landry out
of jail because Landry “had the keys to my truck in his pocket.” Three months
prior to the collision with the Curries, Landry was arrested for driving while
intoxicated before going to a remote job site. Porter again got Landry out of
Landry v. Currie Page 9 jail after that arrest. According to Porter, when he went to pick him up from
jail, Landry was “still too drunk to be released so they held him another day.”
Porter admitted that at the time he entrusted his vehicle to Landry, he
knew that Landry was an alcoholic. He also admitted that he knew Landry
had a propensity to get drunk at remote job sites as well as other places.
Viewing all of the evidence in the light most favorable to the verdict, we
conclude that there was more than a scintilla of evidence to support the finding
on negligent entrustment. See Pesina v. Hudson, 132 S.W.3d 133, 139 (Tex.
App.—Amarillo 2004, no pet.). In addition, viewing all of the evidence in a
neutral light, the finding is not so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. We overrule Porter and Q.A.’s first
issue.
Porter and Q.A.’s Issues Two, Three, and Four
In the second issue, Porter and Q.A. argue that the trial court submitted
an improper negligence theory to the jury. In the third issue, they contend
that the evidence is legally and factually insufficient to support the jury’s
finding that Landry was acting in the scope of his employment with Q.A. In
the fourth issue, they argue that the evidence is legally and factually
insufficient to support the negligence findings against Q.A.
Standard of Review and Applicable Law
Landry v. Currie Page 10 A trial court must submit jury questions, instructions, and definitions
that “are raised by the written pleadings and the evidence.” Tex. R. Civ. P.
278; United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 469 (Tex. 2017). In
reviewing alleged error in a jury submission, we consider “the pleadings of the
parties and the nature of the case, the evidence presented at trial, and the
charge in its entirety.” United Scaffolding, 537 S.W.3d at 469 (quoting
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex.
2009)). The alleged charge error “will be deemed reversible only if, when
viewed in the light of the totality of these circumstances, it amounted to such
a denial of the rights of the complaining party as was reasonably calculated
and probably did cause the rendition of an improper judgment.” United
Scaffolding, 537 S.W.3d at 469 (quoting Island Recreational Dev. Corp. v.
Republic of Tex. Sav. Ass’n, 710 S.W.2d 551. 555 (Tex. 1986)).
Negligent Hiring, Supervision, or Retention
To successfully prosecute a claim of negligent hiring, supervision, or
retention, a plaintiff is required to show that (1) the employer owed a legal
duty to protect third parties from the employee’s actions, and (2) the third
party sustained damages proximately caused by the employer’s breach of that
legal duty. Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 655 (Tex.
App.—Dallas 2002, pet. den’d); see also Houser v. Smith, 968 S.W.2d 542, 544
(Tex. App.—Austin 1998, no pet.).
Landry v. Currie Page 11 Respondeat Superior
Under the doctrine of respondeat superior, an employer is responsible
for the negligence of an employee acting within the course and scope of his
employment, even though the employer has not personally committed a wrong.
Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). To
prove an employer’s vicarious liability for a worker’s negligence, the plaintiff
must show that, at the time of the negligent conduct, the worker (1) was an
employee and (2) was acting in the course and scope of his employment.
Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018).
To prove that an employee acted within the course and scope of
employment, a plaintiff must show that the act was (1) within the general
authority given to the employee, (2) in furtherance of the employer’s business,
and (3) for the accomplishment of the object for which the employee was
employed. Mejia-Rosa v. John Moore Servs., Inc., No. 01-17-00955-CV, 2019
WL 3330972, at *6 (Tex. App.—Houston [1st Dist.] July 25, 2019, no pet.)
(mem. op); Green v. Ransor, Inc., 175 S.W.3d 513, 516 (Tex. App.—Fort Worth
2005, no pet.).
In their pleadings, the Curries alleged claims of respondeat superior and
negligence, including negligent supervision, training, and retention, against
Q.A. In the charge, Question 1 asked whether Landry was acting within the
Landry v. Currie Page 12 scope of his employment with Q.A. The jury answered “yes.” Question 2 asked
whether the negligence, if any of Landry, Porter, and Q.A. proximately caused
the occurrence in question. The jury responded yes as to each of the named
parties. The charge included the definition of negligent entrustment in
relation to the negligence claim against Porter. The charge did not contain any
definitions or instructions as to negligent supervision, training, and retention
as to Q.A.
The record shows that the Curries proposed jury charge requested an
instruction that:
An employer has a general duty to adequately hire, train, and supervise its employees. An employer owes a duty to its other employees and to the general public to ascertain the qualifications and competence of the employees it hires, especially when the employees are engaged in occupations that require skill or experience that could be hazardous to the safety of others.
The trial court did not give the requested instruction.
Q.A. contends that the trial court’s instruction on negligence was
improper as to Q.A. because it only included a general negligence theory rather
than negligent supervision, training, and retention. Q.A. cites United
Scaffolding v. Levine as authority. 537 S.W. at 469.
In United Scaffolding, Levine, a pipefitter for Valero Energy
Corporation, brought suit against United Scaffolding, a contractor, after he
was injured on scaffolding constructed by United Scaffolding. Id. at 467.
Landry v. Currie Page 13 Levine alleged that United Scaffolding improperly constructed the scaffold and
failed to remedy or warn of the dangerous condition on the scaffold, causing
his injury. Id. at 468. The trial court submitted a general negligence question
to the jury, and the jury found United Scaffolding negligent. In its motion for
new trial and a motion for judgment notwithstanding the verdict, United
Scaffolding asserted for the first time that the trial court improperly submitted
a general negligence question to the jury when Levine’s claim sounded in
premises liability, and the trial court denied the motions. Id.
United Scaffolding argued on appeal that Levine’s claim was improperly
submitted as a general negligence theory. Id. The Court stated that negligence
and premises liability claims are separate and distinct theories of recovery,
requiring plaintiffs to prove different, albeit similar, elements to secure
judgment in their favor. Id. at 471. The Court explained that generally, a
plaintiff need only submit a general negligence question in support of a claim
for a defendant’s liability pursuant to a negligent activity theory. Id. However,
in a premises liability claim, the plaintiff must prove additional elements. See
id. Therefore, the Court concluded that when submitting a premises liability
cause of action to a jury, a general negligence question, unaccompanied by the
additional elements as instructions or definitions, cannot support a recovery
for premises liability. Id. at 472. The Court determined that based upon the
source of Levine’s injury, his pleadings, and the evidence presented at trial,
Landry v. Currie Page 14 Levine’s case sounded in premises liability. Id. at 479. The theory of recovery
submitted to the jury did not reflect the claim that was raised by the pleading
and the evidence. Id. at 480.
The Court held that because the case was submitted to the jury under
only a general negligence theory, without the elements of premises liability as
instructions or definitions, the verdict could not support a recovery for
premises defect. Id. at 480-81. The Court further held that Levine waived his
premises liability claim because he did not obtain findings on the premises
liability elements. Id. at 481.
Q.A. maintains that because the Curries did not obtain a jury submission
on their negligent supervision, training, and retention theories, the verdict was
rendered on a theory upon which relief cannot be granted against Q.A. The
Curries respond that United Scaffolding is not applicable because unlike
negligence and premises liability claims, which are distinct and separate
theories of recovery, negligence and negligent supervision, training, and
retention are not separate theories of recovery. However, where only ordinary
negligence is alleged, case law supports the contention that negligent hiring or
negligent entrustment and respondeat superior are mutually exclusive modes
of recovery. Rosell, 89 S.W.3d at 654; Estate of Arrington v. Fields, 578 S.W.2d
173, 178 (Tex. Civ. App.—Tyler 1979, writ ref’d n.r.e.).
Landry v. Currie Page 15 In Rossell, a bus driver for Central West Motor Stages struck and killed
Rossel, who was assisting another injured motorist. Id. at 649. Rossell’s estate
brought suit against the injured motorist, the bus driver, and Central West
Motor Stages. Id. The first question to the jury asked if the negligence of the
bus driver, the injured motorist, or Rossell proximately caused the occurrence.
Id. at 653. Rossell’s estate complained that Central West should have been
included in the first question. Central West stipulated that the bus driver was
acting within the scope of his employment. Id. at 654. The trial court
submitted a separate question on Central West’s liability for negligent
entrustment, hiring, supervision, and retention. Id. at 655-56. Rossell’s estate
complained on appeal that Central West should have been included in the first
general negligence question as well. Id. at 653.
The court noted that Rossell’s estate proposed several theories under
which Central West was liable including negligent entrustment and negligent
supervision, training, and retention. Id. at 655. The court stated that while
the theories were similar, they had different requirements. Id. The court
explained that to successfully prosecute a claim of negligent hiring,
supervision, or retention, a plaintiff is required to show that (1) the employer
owed a legal duty to protect third parties from the employee’s actions, and (2)
the third party sustained damages proximately caused by the employer’s
breach of that legal duty. Id.
Landry v. Currie Page 16 The court reasoned that there was no need to include Central West in
the general negligence liability question because there was a separate question
on Central West’s negligence. Id. at 656. The court determined that the trial
court did not abuse its discretion in submitting a separate liability issue for
Central West. Id.
We find the reasoning in Rossell to be instructive. The Curries’ pleadings
alleged claims for negligent hiring, supervision, or retention, and they
submitted evidence at trial in support of those claims. Unlike the charge before
us, in Rossell, the trial court submitted a separate question on the employer’s
liability. The court determined that negligent hiring, supervision, or retention
are mutually exclusive modes of recovery than that of general negligence with
different proof requirements. Id. at 654-55. The court found that the trial
court correctly submitted a separate question on the employer’s liability. Id.
at 656. We agree that general negligence and negligent hiring, supervision, or
retention are mutually exclusive modes of recovery than that of general
negligence with different proof requirements. See Id. at 654-55.
The Currie’s pleadings and the evidence at trial alleged a claim for
negligent hiring, supervision, or retention. Because negligent hiring,
supervision, or retention requires additional proof requirements than general
negligence, a general negligence question, unaccompanied by the additional
elements as instructions or definitions, cannot support a recovery for negligent
Landry v. Currie Page 17 hiring, supervision, or retention. See United Scaffolding, 537 S.W.463 at 472.
Therefore, we agree that the trial court erred by submitting a general
negligence theory against Q.A. without the additional proof requirements of
negligent hiring, supervision, or retention as instructions or definitions. See
Id. at 480-81.
The Curries contend that Q.A. did not object to the charge, and,
therefore, did not preserve the argument for review. A defendant has no
obligation to complain about a plaintiff’s omission of an independent theory of
recovery; rather, the burden to secure proper findings to support that theory of
recovery is on the plaintiff, and a plaintiff who fails to satisfy that burden
waives that claim. TEX. R. CIV. P. 279; United Scaffolding, 537 S.W.463 at 481.
Therefore, Q.A. was not required to object to the omission of the instruction on
negligent hiring, supervision, or retention. See United Scaffolding, 537
S.W.463 at 481. We sustain Porter and Q.A.’s second issue. Because we hold
that the trial court improperly submitted a general negligence question, we
need not address Porter and Q.A.’s fourth issue arguing that the evidence was
legally and factually insufficient to support the jury’s finding on Q.A.’s
negligence. See Tex. R. App. P. 47.1.
In United Scaffolding, the plaintiff did not have another basis of
recovery, and the Court rendered a take-nothing judgment in United
Scaffolding’s favor. Id. at 481, 483. While the Curries cannot recover on their
Landry v. Currie Page 18 claims of negligent hiring, supervision, or retention, unlike United Scaffolding,
they have a remaining basis of recovery on their claim of respondeat superior.
In the third issue, Porter and Q.A. argue that the evidence is legally and
factually insufficient to support the jury’s finding that Landry was acting
within the scope of his employment with Q.A. To prove that an employee acted
within the course and scope of employment, the Curries must show that
Landry was acting (1) within the general authority given to him, (2) in
furtherance of Q.A.’s business, and (3) for the accomplishment of the object for
which Landry was employed. See Means v. Property Management Contractors,
LLC, No. 01-21-00415-CV, 2023 WL 138620 at *5 (Tex. App.—Houston [1st
Dist.] Jan. 10, 2023, no pet.) (mem. op).
Because Landry was authorized to drive Porter’s trucks for Q.A., he was
acting within the general authority given to him. The question before us is
whether Landry was acting in furtherance of Q.A.’s business for the
accomplishment of the object for which he was employed. See id.
Porter owned the trucks used by Q.A. employees for Q.A.’s business. The
record shows that Q.A. employees, including Landry, would drive the trucks
from the company yard at Porter’s residence to the jobsites and return the
trucks to the company yard. Porter agreed that once a truck left the company
yard to go to a jobsite, that truck was being used for Q.A. business. He further
Landry v. Currie Page 19 agreed that employees expected to be paid for their time driving the trucks to
jobsites.
Landry testified that driving to and from job sites was part of his job
requirement and that he was compensated for driving to and from the jobsites.
Landry became ill at the jobsite and wanted to return home. According to
Landry, he was informed that in order to return home, he would have to drive
one of Porter’s trucks back to the yard. If Landry did not drive one of Porter’s
trucks back, a truck would be left at the remote jobsite because there would be
more trucks than drivers. Landry did not live near the company yard. He
intended to return Porter’s truck to the company yard as instructed, and have
his girlfriend pick him up there so that he could return home. Landry believed
he would be paid for driving the truck from the jobsite to the company yard.
Landry was acting in furtherance of Q.A.’s business for the
accomplishment of his work for Q.A. at the time of the collision. Landry was
returning the truck to the company yard so that it would not be left at the
jobsite. Porter agreed that when a truck left the company yard, it was for Q.A.
business. There is nothing in the record to show that Landry was ever allowed
to drive one of Porter’s trucks to his home. The trucks left from the company
yard to go to the jobsites and were returned to the company yard. Even though
Landry was leaving the jobsite because he was ill, he was still required to
return the truck to the company yard. He was not authorized to take the truck
Landry v. Currie Page 20 to his house, which was many miles away. Therefore, the “coming and going”
rule is not applicable. See Orozco v. County of El Paso, 602 S.W.3d 389, 396
(Tex. 2020). Moreover, because Porter paid for the transportation and
controlled its use, the “coming and going” rule would not exclude Landry’s
return trip to the company yard from the course and scope of his employment.
See id. Viewing all of the evidence in the light most favorable to the verdict,
we conclude that there was more than a scintilla of evidence to support the
finding that Landry was acting in the course and scope of his employment. In
addition, viewing all of the evidence in a neutral light, the finding is not so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust. Accordingly, we overrule Porter and Q.A.’s third issue.
In summary, the evidence is legally and factually sufficient to support
the jury’s findings against Porter for negligent entrustment. The Curries
cannot recover on their negligence claims against Q.A. because trial court
erroneously submitted a general negligence theory against Q.A. without the
additional proof requirements of negligent hiring, supervision, or retention as
instructions or definitions. However, the evidence is legally and factually
sufficient to support the jury’s finding that Landry was acting in the course
and scope of his employment, and that supports the trial court’s judgment
against Q.A. See Boatland of Houston, Inc., v. Bailey, 609 S.W.2d 743, 750
(Tex. 1980). While we sustain Porter and Q.A.’s second issue, we need not
Landry v. Currie Page 21 reverse the entire judgment. The judgment did not expressly tie the damage
award against Q.A. to a specific negligence finding. Therefore, we overrule
Porter and Q.A.’s fifth issue.
Porter and Q.A.’s Issue Six and Landry’s Issues One and Two
In their sixth issue, Porter and Q.A. argue that the evidence is legally
and factually insufficient to support the damages as remitted. They
specifically challenge the damages awarded for Philip and Charlotte’s past and
future physical pain and mental anguish, Charlote’s future physical and
mental impairment, and Philip’s future physical impairment.
Landry does not dispute that his negligence proximately caused the
collision with the Curries. He further does not dispute that Philip and
Charlotte suffered damages proximately caused by his negligence. He only
disputes the amount of some of the damages awarded. In his first issue,
Landry argues that the evidence is legally and factually insufficient to support
the noneconomic damages awarded in the judgment. In the second issue, he
contends that because the evidence is insufficient to support the noneconomic
damages, the jury’s exemplary damages award should be reversed.
“Noneconomic damages” are damages awarded:
Landry v. Currie Page 22 for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages.
TEX. CIV. PRAC. & REM. CODE ANN. § 41.001 (12).
An excessive damages complaint is a challenge to the factual sufficiency
of the evidence supporting the damages award. See Anderson v. Durant, 550
S.W.3d 605, 620 & n.66 (Tex. 2018); Maritime Overseas Corp. v. Ellis, 971
S.W.2d 402, 406 (Tex. 1998); Team Industrial Servs, Inc., v. Most, 711 S.W.3d
31, 57 (Tex. App.—Houston [1st Dist.] 2024, no pet.). When a party attacks
the factual sufficiency of an adverse finding on an issue on which it did not the
burden of proof at trial, it must demonstrate that the adverse finding is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Team
Industrial, 711 S.W.3d at 57.
A jury has great discretion in awarding damages, and we give deference
to the jury findings on damages. See Herchman v. Lee, No. 02-22-00217-CV,
2024 WL 4898787, at *7 (Tex. App.—Fort Worth Nov. 27, 2024, pet. den’d)
(mem. op). “Assigning a dollar value to non-financial, emotional injuries such
as mental anguish ... will never be a matter of mathematical precision,” and
we review an award for noneconomic damages with this firmly in mind. Id.
Landry v. Currie Page 23 (quoting Gregory v. Chohan, 670 S.W.3d 546, 550 (Tex. 2023)) (plurality op).
Although the amount of a noneconomic damages award is “uniquely within the
factfinder’s discretion,” the award must still “fairly and reasonably
compensate” for the plaintiff’s injury based on the evidence presented. Bennett
v. Grant, 525 S.W.3d 642, 648 (Tex. 2017); Golden Eagle Archery, 116 S.W.3d
at 772–73; Herchman, 2024 WL 4898787, at *7. We must reverse the jury’s
award if it is so against the great weight and preponderance of the evidence as
to be manifestly unjust. Golden Eagle Archery, 116 S.W.3d at 772–73.
Herchman, 2024 WL 4898787, at *7.
In Gregory, a plurality of the Court proposed a new standard for
reviewing noneconomic damage awards requiring a “rational connection,
grounded in the evidence, between the injuries suffered and the dollar amount
awarded.” Herchman, 2024 WL 4898787, at *7 n. 8 (quoting Gregory, 670
S.W.3d at 550-51). Because it is a plurality opinion, the proposed standard is
not binding precedent. See Gregory, 670 S.W.3d at 549. Although Gregory is
a nonbinding plurality opinion, the justices all agreed that, when deciding on
the amount of damages to award, the jury should consider the nature,
duration, and severity of the claimant’s loss. Garza v. Escamilla, 712 S.W.3d
718, 727 (Tex. App.—Houston [14th Dist.] 2025, no pet.) (citing Gregory, 670
S.W.3d at 557, 570–71). They agreed that the amount decided should not be
Landry v. Currie Page 24 based on mere passion or prejudice or improper motivations. Garza, 712
S.W.3d at 727. Id. at 564 n.16, 570, 576.
In relevant part, Question 4 asked the jury what sum of money would
fairly and reasonably compensate Philip for his injuries that resulted from the
occurrence in question as follows:
1. Physical pain and mental anguish sustained in the past. ANSWER: 1,062,720.00
2. Physical pain and mental anguish that, in reasonable probability, Philip Currie will sustain in the future. ANSWER: 1,555,200.00
3. Physical impairment sustained in the past. ANSWER: 100,000.00
4. Physical impairment that, in reasonable probability, Philip Currie will sustain in the future. ANSWER: 585,365.00
5. Disfigurement sustained in the past. ANSWER: 50,000.00
6. Disfigurement that, in reasonable probability, Philip Currie will sustain in the future. ANSWER: 50,000.00
In relevant part, Question 5 asked the jury what sum of money would fairly
and reasonably compensate Charlotte for her injuries that resulted from the
1. Physical pain and mental anguish sustained in the past. ANSWER: 2,656,800.00
Landry v. Currie Page 25 2. Physical pain and mental anguish that, in reasonable probability, Charlotte Currie will sustain in the future. ANSWER: 27,993,600.00
3. Physical impairment sustained in the past. ANSWER: 200,000.00
4. Physical impairment that, in reasonable probability, Charlotte Currie will sustain in the future. ANSWER: 1,756,097.00
5. Disfigurement sustained in the past. ANSWER: 150,000.00
6. Disfigurement that, in reasonable probability, Charlotte Currie will sustain in the future. ANSWER: 250,000.00
The trial court’s suggestion of remittitur did not reduce the noneconomic
damages as to Philip. The trial suggested remittitur on the noneconomic
damages for Charlotte as follows:
Physical pain and mental anguish in the past. Suggested remittitur: 1,582,800.00
Physical pain and mental anguish in the future. Suggested remittitur: 23,697,600.00
Physical and mental impairment in the past. Suggested remittitur: 0
Physical and mental impairment in the future. Suggested remittitur: 0
Disfigurement in the past. Suggested remittitur: 25,000.00
Disfigurement in the future.
Landry v. Currie Page 26 Suggested remittitur: 125,000.00
Charlotte accepted the trial court’s suggestion of remittitur.
Landry specifically argues in his first issue that even though Charlotte
accepted the trial court’s suggestion of remittitur, the remitted awards for her
past and future pain and mental anguish, past and future physical
impairment, and past and future disfigurement are not supported by the
evidence. He further contends that the evidence does not support the jury’s
award of damages on Philip’s past and future pain and mental anguish, past
and future physical impairment, and past and future disfigurement.
Pain and Mental Anguish
The presence or absence of pain, either physical or mental, is an
inherently subjective question that largely depend on the plaintiff’s word and
on the jury’s credibility determinations. Herchman, 2024 WL 4898787, at *9.
In addition to a plaintiff’s testimony, evidence of a severe injury will support
an inference that the plaintiff experienced pain and suffering. Id. (citing Gen.
Motors Corp. v. Burry, 203 S.W.3d 514, 552 (Tex. App.—Fort Worth 2006 pet.
denied)).
Mental anguish is compensable only if it causes a “substantial disruption
in daily routine or a high degree of mental pain and distress.” Hancock v.
Variyam, 400 S.W.3d 59, 68 (Tex. 2013) (internal quotation marks omitted).
This requires evidence of the nature, duration, and severity of the mental
Landry v. Currie Page 27 anguish, demonstrating a substantial disruption to the plaintiff’s daily
routine.” SCI Tex. Funeral Servs., Inc. v. Nelson, 540 S.W.3d 539, 544 (Tex.
2018); Team Indus. Servs., Inc. v. Most, 711 S.W.3d 31, 58 (Tex. App.—Houston
[1st Dist.] 2024, no pet.).
Both Porter and Q.A. and Landry challenge the awards to Charlotte for
past and future physical pain and mental anguish. Charlotte suffered multiple
injuries as a result of the collision including an aortic rupture, a significant
abdominal injury, and rib fractures. She was in a medically induced coma for
approximately one month. She testified at trial that when she was awakened
from the coma, she experienced pain all over her body. She went to a
rehabilitation hospital to learn basic skills. When she was released, she went
to live with her daughter because she could not care for herself. She continued
to live with her daughter at the time of trial with no immediate plans to return
to her home with Philip because she needs assistance in caring for herself.
Charlotte described that she experiences constant headaches at least five
days out of the week and that she also has persistent backaches. She has no
feeling in her abdomen, and she has numbness in her fingers and toes. She
stated that she cannot stand for a long time and that it hurts to walk.
Charlotte had trouble sleeping after the collision and had nightmares of Philip
screaming. Charlotte also testified that she suffers from anxiety after the
Landry v. Currie Page 28 collision and that she can no longer interact with her grandchildren as she did
before the collision.
There was evidence that Charlotte would require more surgeries in the
future on her knee, back, and abdomen. There was also evidence that her
memory loss, headaches, and dizziness would be chronic conditions. The jury
heard testimony that Charlotte walks with an abnormal gait and that would
also be a chronic condition.
While the awards were significant, they reflected the combined sums for
two types of damages—physical pain and mental anguish—both of which were
“almost entirely subjective,” making the jury’s role in assessing such damages
“paramount.” See Herchman, 2024 WL 4898787, at *10. Based upon the
evidence, we conclude that the awards were within the range of the jury’s broad
discretion. See Id.
We will next consider the jury’s award for Philip’s past and future pain
and mental anguish. Philip suffered a severe fracture of his arm that caused
the bone to go into his shoulder. He described that immediately after the
collision, his arm felt like it was on fire. As a result of the fracture, Philip
developed a blood clot in the major artery supplying blood to the arm. Philip
required immediate surgery to save his arm. Because of his trauma and
injuries, Philip had a stroke that resulted in a loss of his peripheral vision.
Philip also had rib fractures and a severe laceration to his tongue.
Landry v. Currie Page 29 Philip stated that for over a year, he had to sleep in a recliner because of
his arm injury. He described that his arm feels like it is “asleep” and that from
his elbow to his wrist, it feels like his arm is in a “vice and it’s squeezing.” He
said that feeling was still present at the time of trial. He testified that he
experiences pain almost every day.
When he was released from the hospital, Philip went to live with his
sister because he could not care for himself. He eventually moved back into
his home, but his brother moved in with him to help with his care. Philip
suffered from depression after the collision. He was unable to return to work
after the collision, and he cannot perform routine tasks at his home.
Philip testified to the extreme pain he suffered at the time of the
collision, and the ongoing pain he experiences daily. He described a
“substantial disruption in daily routine or a high degree of mental pain and
distress.” See Hancock, 400 S.W.3d. at 68 (internal quotation marks omitted).
Based upon the evidence, we conclude that the awards for past and future
physical pain and mental anguish were within the range of the jury’s broad
discretion. See Herchman, 2024 WL 4898787, at *10.
Physical Impairment
Physical impairment damages compensate a plaintiff for the loss of the
injured party's former lifestyle to the extent that such injuries are distinct
from, or extend beyond, injuries compensable through other damage elements.
Landry v. Currie Page 30 See Herchman, 2024 WL 4898787, at *10. Physical impairment extends
beyond loss of earning capacity and beyond any pain and suffering, to the
extent that it produces a separate loss that is substantial or extremely
disabling. Dawson v. Briggs, 107 S.W.3d 739, 752 (Tex. App.—Fort Worth
2023, no pet.).
Landry does not challenge the existence of Charlotte and Philip’s
physical and mental impairment, but rather the amount of those damage
awards. Porter and Q.A. challenge Charlotte’s award for future physical and
mental impairment. As previously stated, a jury has great discretion in
awarding damages, and we give deference to the jury findings on damages. See
Herchman, 2024 WL 4898787, at *10. The trial court did not suggest any
remittitur on the jury’s award to Charlotte for past and future physical and
mental impairment.
We will first address Charlotte’s past and future physical impairment.
After being released from the rehabilitation facility, Charlotte could not care
for herself. She needed assistance to use the restroom as well as in other
aspects of her personal hygiene care. Charlotte described that she no longer
has the ability to feel when she needs to use the restroom, so she wears diapers
and routinely goes to the restroom every two hours. According to her daughter,
Charlotte is unable to cook, clean, do laundry, or go to the grocery store to care
for herself. Charlotte needs daily reminders to perform personal grooming and
Landry v. Currie Page 31 hygiene. There was credible evidence of Charlotte’s loss of her former lifestyle
distinct from those of physical pain and mental anguish. See Herchman, 2024
WL 4898787, at *11. Therefore, we cannot say that the awards were
manifestly unjust or unreasonably compensated her for the permanent
changes to her lifestyle. See id.
Philip suffered permanent damage to his arm. The Currie’s expert
agreed that Philip will “see a significant amount of impairment moving
forward.” In addition, Philip has permanent vision loss, and he was not able
to return to his previous job. Philip’s brother lives with him to assist in caring
for Philip and in household tasks. Philip’s brother testified that Philip will not
be able to live independently. Philip no longer lives with Charlotte, and he
testified that is not able to have sexual relations. There was credible evidence
of Philip’s loss of his former lifestyle distinct from those of physical pain and
mental anguish. See id. Therefore, we cannot say that the awards were
manifestly unjust or unreasonably compensated him for the permanent
changes to his lifestyle. See id.
Physical Disfigurement
Landry does not dispute the existence of Charlotte and Philip’s
disfigurement but rather challenges the amount of damages awarded. Porter
and Q.A. challenge Philip’s award for future physical disfigurement.
Disfigurement means that which impairs or injures the beauty, symmetry, or
Landry v. Currie Page 32 appearance of a person or which renders a person unsightly, misshapen, or
imperfect, or deforms in some manner. Goldman v. Torres, 161 Tex. 437, 341
S.W.2d 154, 160 (Tex. 1960). Surgical scarring falls into that category. See
Gonzales as Next Friend of Gonzales v. 3 Atoms, LLC, No. 07-19-00437-CV,
2020 WL 1966290, at *3 (Tex. App.—Amarillo Apr. 23, 2020, no pet.) (mem.
op.). Furthermore, additional scarring or deforming is not required to recover
damages for future disfigurement, although it may be a factor in determining
the extent of the damages. See id. Other indicia relevant to the inquiry is
embarrassment and shame arising from the scars. See id. The award depends
on the circumstances of each case and there is no mathematical yardstick
exists by which one can measure damages for it. See id.
As a result of her injuries, Charlotte required a tracheostomy to breathe.
That procedure left a large, permanent scar on her neck. In addition, she has
scarring on her abdomen from her required surgeries. Her daughter testified
that Charlotte is uncomfortable with her scars and feels that her appearance
is “gross” because of it. Based upon the evidence before us and given that there
is no mathematical yardstick by which to measure disfigurement awards, we
cannot say that the awards to Charlotte for past and future disfigurement were
manifestly unjust. See Herchman, 2024 WL 4898787, at *8.
Philip’s surgery on his arm required an eight-inch cut that left a
significant scar. He explained that the scar is painful and continues to bother
Landry v. Currie Page 33 him. The jury viewed a photograph of Philip’s permanent scarring on his arm.
Again, based upon the evidence before us and given that there is no
mathematical yardstick by which to measure disfigurement awards, we cannot
say that the awards to Philip for past and future disfigurement were
Having reviewed all of Porter and Q.A.’s and Landry’s complaints on the
award of noneconomic damages awarded to Charlotte and Philip, we conclude
that the evidence is factually sufficient to support the noneconomic damages
awarded in the judgment. Accordingly, we overrule Porter and Q.A.’s sixth
issue and Landry’s first issue.
Exemplary Damages
Landry contends that because the evidence is insufficient to support the
noneconomic damages, the jury’s exemplary damages award should be
reversed. Landry argues that because “the overwhelming majority of
compensatory damages awarded to the Curries were for non-economic
damages supported by insufficient evidence,[] the award of $806,400 in
exemplary damages should also be reversed and remanded for determination
in a new trial.” We note that here the trial court’s judgment awarded the
Curries $10,979,382 in non-economic damages and awarded $3,562,458 in
economic damages. Because of our disposition of Landry’s first issue, we
overrule Landry’s second issue.
Landry v. Currie Page 34 This Court’s Ruling
We affirm the trial court’s judgment on the Curries’ claims against
Porter. Having sustained Porter and Q.A.’s second issue, we modify the
judgment to delete Q.A.’s proportionate responsibility of 50%. Because we
conclude that the jury’s finding on respondeat superior is supported by the
evidence, Q.A. is vicariously liable for Landry’s negligence. Therefore, Q.A. is
liable for 30% of the damages awarded, and we modify the judgment to that
effect. Having overruled Landry’s first issue, we affirm the trial court’s
judgment on the Curries’ claims against him. We affirm the judgment as
modified.
MATT JOHNSON Chief Justice
OPINION DELIVERED and FILED: January 29, 2026 Before Chief Justice Johnson, Justice Smith, and Senior Justice Davis 2 Modified and affirmed; motion granted CV06
2 The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Texas.
Landry v. Currie Page 35