Transportation Concepts, Inc. and Eloy Canales v. Brian Ramirez

• Court: Court of Appeals of Texas
• Decided: October 25, 2024
• Docket: 08-24-00036-CV
• Status: Published

Opinion

ACCEPTED 08-24-00036-CV EIGHTH COURT OF APPEALS EL PASO, TEXAS 08-24-00036-CV 10/25/2024 4:10 PM ELIZABETH G. FLORES CLERK

NO. 08-24-00036-CV

FILED IN IN THE COURT OF APPEALS 8th COURT OF APPEALS EL PASO, TEXAS FOR THE EIGHTH DISTRICT OF TEXAS 10/25/2024 4:10:54 PM AT EL PASO ELIZABETH G. FLORES Clerk

TRANSPORTATION CONCEPTS, INC., and ELOY CANALES, Appellants, v.

BRIAN RAMIREZ, Appellee.

On Appeal from the 131ST Judicial District Court, Bexar County, Cause No. 2021 CI 04603, Hon. Norma Gonzales, Presiding

APPELLEE’S BRIEF

Thad D. Spalding Fidel Rodriguez, Jr. State Bar No. 00791708 State Bar No. 17145500 tspalding@dpslawgroup.com fidel@fidrodlaw.com Lauren S. Harbour RODRIGUEZ TRIAL LAW State Bar No. 24070649 231 W. Cypress Street lharbour@dpslawgroup.com San Antonio, Texas 78212 DURHAM PITTARD & SPALDING, LLP (210) 777-5555 – Office P.O. Box 224626 (210) 224-0533 - Facsimile Dallas, Texas 75222 (214) 946-8000 – Office (214) 946-8433 - Facsimile

Attorneys for Appellee ORAL ARGUMENT CONDITIONALLY REQUESTED TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ..................................................................................... v

STATEMENT REGARDING ORAL ARGUMENT..................................................... xii

RECORD CITATIONS ......................................................................................... xii

RESTATEMENT OF ISSUES PRESENTED .............................................................. xiii

INTRODUCTION ................................................................................................. 1

STATEMENT OF FACTS........................................................................................ 2

A. TCI’s employee causes a collision with Mr. Ramirez when he attempts an unprotected left turn in a tractor trailer. .......................... 2

B. TCI negligently supervised its employee by choosing the route he was to take—a route that required him to make the unprotected left turn. ............................................................................ 3

C. The jury finds Mr. Ramirez, Canales, and TCI all negligent in causing the collision. ............................................................................. 5

SUMMARY OF ARGUMENT.................................................................................. 6

ARGUMENT & AUTHORITIES .............................................................................. 7

I. The negligent supervision claim against TCI............................... 7

A. Standard of Review—Legal and Factual Sufficiency ............... 7

B. TCI’s stipulation to course and scope did not render the direct negligence claims against it “legally invalid.” ......................... 9

C. The gross negligence claim was not a “sham.” ...................... 15

D. Legally and factually sufficient evidence supports the negligent supervision finding. ................................................ 16

ii TABLE OF CONTENTS (CONT'D) PAGE

E. Submission of the negligent supervision claim does not require a new trial. .................................................................. 19

II. The trial court did not abuse its discretion in admitting or excluding certain evidence.................................................................. 21

A. Standard of Review—Abuse of Discretion............................. 21

B. Roger Allen’s testimony regarding TCI’s negligent supervision was proper........................................................... 21

1. Roger Allen is qualified to talk about the trucking industry and TCI’s supervision of its drivers. ................................... 22

2. Roger Allen’s testimony on route selection is reliable and relevant to TCI’s negligent supervision of Canales. ........... 24

C. Allen’s opinions regarding TCI’s gross negligence were relevant and reliable. ............................................................... 27

D. Steve Christofferson’s testimony on negligent supervision is reliable...................................................................................... 29

E. Admission of these experts’ testimony was not harmful error. .................................................................................................. 31

F. The exclusion of evidence that Mr. Ramirez lacked a driver’s license was not error................................................................ 32

1. The lack of a driver’s license was not relevant to TCI’s contributory negligence defense.......................................... 32

2. The exclusion of such evidence was not harmful. .............. 34

III. There was no incurable jury argument. ..................................... 35

A. Standard of Review. ................................................................ 35

iii TABLE OF CONTENTS (CONT'D) PAGE

B. Jury argument suggesting a per diem or unit of time measurement for noneconomic damages is proper. .............. 36

IV. “Cumulative error” does not warrant a new trial. .................... 39

CONCLUSION & PRAYER .................................................................................. 40

CERTIFICATE OF COMPLIANCE ......................................................................... 43

CERTIFICATE OF SERVICE.................................................................................. 43

iv TABLE OF AUTHORITIES

CASES PAGE(S)

4Front Engineered Solutions, Inc. v. Rosales, 505 S.W.3d 905 (Tex. 2016) ........................................................................ 33

Arreola v. Union Pac. R.R., 657 S.W.3d 789 (Tex. App.—El Paso 2022, no pet.).................................. 40

Ashlike v. Mullen Crane & Transp., Inc., No. 2:12CV11DAK, 2014 WL 3640735 (D. Utah July 23, 2014) .......... 24, 25

Atlantic Industries, Inc. v. Blair, 457 S.W.3d 511 (Tex. App.—El Paso 2014) ............................................... 11

Bedford v. Moore, 166 S.W.3d 454 (Tex. App.—Fort Worth 2005, no pet.) ........................... 11

Birchfield v. Texarkana Mem. Hosp., 747 S.W.2d 361 (Tex. 1987) ........................................................................ 28

Black v. Smith Protective Servs., Inc., No. 01-14-00969-CV, 2016 WL 5400565 (Tex. App.—Houston [1st Dist.] Sep. 23, 2016, no pet.) ........................... 10

Bogdanski v. Budzik, 408 P.3d 1156 (Wyo. 2018)......................................................................... 15

Brown v. Eaves 4:21-cv-959-KPJ, 2022 WL 17812441 (E.D. Tex. Dec. 19, 2022)............................................. 22

Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) .......................................................................... 9

Castro v. Schlumberger Tech. Corp., 673 S.W.3d 294 (Tex. App.—San Antonio 2023, no pet.) ......................... 32

Cent. Ready Mix Concrete Co., Inc. v. Islas, 228 S.W.3d 649 (Tex. 2007) .......................................................................... 7

v TABLE OF AUTHORITIES (CONT'D)

Chemical Exp. v. Cole, 342 S.W.2d 773 (Tex. Civ. App.—Dallas 1961, writ ref’d n.r.e.) .............. 38

City of Brownsville v. Alvarado, 897 S.W.2d 750 (Tex. 1991) ........................................................................ 21

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ...................................................................... 7, 8

Coastal Transportation Co. v. Crown Central Petroleum Corporation, 136 S.W.3d 227 (Tex. 2004) ........................................................................ 28

Continental Bus Sys., Inc. v. Toombs, 325 S.W.2d 153 (Tex. Civ. App.—Fort Worth 1959, writ ref’d n.r.e.) ...... 38

Continued Care, Inc. v. Fournet, 979 S.W.2d 419 (Tex. App.—Beaumont 1998, pet. denied)...................... 10

Cox v. Swift Transp. Co. of Ariz. & LLC, No. 18-CV-0117-CVE-JFJ, 2019 WL 3719887 (N.D. Okla. Aug. 7, 2019) .. 23

Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983) ............................................................................ 8

Dallas Nat’l Ins. Co. v. Morales, 394 S.W.3d 826 (Tex. App.—El Paso 2012, no pet.)................................ 7, 8

Enbridge Pipelines (N. Tex.) L.P. v. Sullivan, 614 S.W.3d 198 (Tex. App.—Tyler 2020, no pet.) ..................................... 19

Foradori v. Harris, 523 F.3d 477, 511-12 (5th Cir. 2008) .................................. 38

Garcia v. Allen, 28 S.W.3d 587 (Tex. App.—Corpus Christi-Edinburg 2002, pet. denied)................................................................................................ 10

vi TABLE OF AUTHORITIES (CONT'D)

Garrett v. Great Western Distributing Co. of Amarillo, 129 S.W.3d 797 (Tex. App.—Amarillo 2015, pet. denied)........................ 10

Garza v. Beck, No. 11-05-00067-CV, 2006 WL 1554606 (Tex. App.—Eastland Jun. 8, 2006, no pet.) .................................................................................. 10

Grant v. CRST Expedited, Inc., No. 1:18-CV-433, 2021 WL 2098967, at *2 (E.D. Tex. March 10, 2021) ..................................................................... 38

Gregory v. Chohan, 670 S.W.3d 546 (Tex. 2023) ...................................................... 36, 37, 38, 39

Hernandez v. Baucum, 344 S.W.2d 498 (Tex. Civ. App.—San Antonio 1961, writ ref’d n.r.e.) .... 37

Horton v. Kansas City So. Ry. Co., 692 S.W.3d 112 (Tex. 2024) ........................................................................ 20

In re State Farm Mut. Auto. Ins. Co., 629 S.W.3d 866........................................................................................... 36

J. D. Wright & Son Truck Line v. Chandler, 231 S.W.2d 786 (Tex. Civ. App.—Galveston 1950, writ ref’d n.r.e.) ........ 38

JTL Group, Inc. v. Gray-Dockham, 510 P.3d 1060 (Wyo. 2022)......................................................................... 15

Knight v. City Streets, L.L.C., 167 S.W.3d 580 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ............ 10

Legeland v. Kirk, No. 1:16-CV-676-DAE-ML, 2019 WL 4060893 (W.D. Tex. Jun. 5, 2019) .. 10

Leitch v. Hornsby, 935 S.W.2d 114 (Tex. 1996) ........................................................................ 18

vii TABLE OF AUTHORITIES (CONT'D)

Living Centers of Tex., Inc. v. Penalver, 256 S.W.3d 678 (Tex. 2008) ............................................................ 35, 36, 37

Louisiana & A. Ry. Co. v. Mullins, 326 S.W.2d 263 (Tex. Civ. App.—Texarkana 1959, writ ref’d n.r.e.) ....... 38

Mackey v. U.P. Enters, Inc., 935 S.W.2d 446 (Tex. App.—Tyler 1996, no pet.) ..................................... 10

Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex. 1974) ........................................................................ 18

McCraw v. Maris, 828 S.W.2d (Tex. 1992).............................................................................. 31

Medina v. Salinas, 736 S.W.2d 224 (Tex. App.—Corpus Christi-Edinburg 1987, writ denied) ............................................................................................... 33

Moore Freight Servs., Inc. v. Munoz, 545 S.W.3d 85 (Tex. App.—El Paso 2017, pet. denied) ............................ 10

Moore v. Strike, LLC, No. 04-16-00324-CV, 2017 WL 96130 (Tex. App.—San Antonio Jan. 11, 2017, no pet.).............................................................................................. 10

Morris v. JTM Materials, 78 S.W.3d 28 (Tex. App.—Fort Worth 2002, no pet.) ............................... 10

Mundy v. Pirie-Slaughter Motor Co., 206 S.W.2d 587 (Tex. 1947) .................................................................. 32, 33

Newberry v. Newberry, 351 S.W.3d 552 (Tex. App.—El Paso 2011, no pet.).................................... 9

Nissan Motor Co. v. Armstrong, 145 S.W.3d 131 (Tex. 2004) ........................................................................ 31 viii TABLE OF AUTHORITIES (CONT'D)

Ortiz v. Jones, 917 S.W.2d 770 (Tex. 1996) .......................................................................... 8

Patterson v. East Texas Motor Freight Lines, 349 S.W.2d 634 (Tex. Civ. App.—Beaumont 1961, writ ref’d n.r.e.).... 9, 10

Pitman v. Lightfoot, 937 S.W.2d 496 (Tex. App.—San Antonio 1996, writ denied) ........... 39, 40

Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986) .......................................................................... 9

Prim v. Stein, 6 F.4th 584 (5th Cir. 2021).......................................................................... 10

Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867 (Tex. 2008) ........................................................................ 31

Service Corp. Int’l v. Guerra, 348 S.W.3d 221 (Tex. 2011) ........................................................................ 21

State Off. of Risk Mgmt. v. Escalante, 162 S.W.3d 619 (Tex. App.—El Paso 2005, pet. dism'd)............................. 8

State Off. of Risk Mgmt. v. Pena, 548 S.W.3d 84 (Tex. App.—Corpus Christi 2018, no pet.) ......................... 8

Sunset Brick & Tile, Inc. v. Miles, 430 S.W.2d 388 (Tex. Civ. App.—Corpus Christi 1968, writ ref'd n.r.e.) 38

Tex. Dep’t of Mental Health & Mental Retardation v. Petty, 848 S.W.2d 680 (Tex. 1992) ........................................................................ 37

Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) .................................................................... 17, 18

ix TABLE OF AUTHORITIES (CONT'D)

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328 (Tex. 1998) .......................................................................... 8

Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175 (Tex. 1994) ........................................................................ 37

Van Winkle v. Rogers, No. 16:19-cv-1264, 2022 WL 4231013 (W.D. La. Sept. 13, 2022) ............... 22

Werner Enters., Inc. v. Blake, 672 S.W.3d 554 (Tex. App.—Houston [14th Dist.] 2023, pet. granted) ......................................................................... 11, 13, 14

Werner v. Colwell, 909 S.W.2d 866 (Tex. 1995) ........................................................................ 18

Westbrook v. Gen. Tire & Rubber Co., 754 F.2d 1233 (5th Cir. 1985) ..................................................................... 38

Williams v. Steves Indus., Inc., 699 S.W.2d 570 (Tex. 1985) ........................................................................ 33

RULES

Tex. R. App. P. 44.1(a) ................................................................................... 21

Tex. R. Civ. P. 162.......................................................................................... 16

Tex. R. Civ. P. 165.......................................................................................... 16

STATUTES

Tex. Civ. Prac. & Rem. Code § 33.003(a) ...................................................... 13

Tex. Civ. Prac. & Rem. Code § 72.053........................................................... 12

Tex. Civ. Prac. & Rem. Code §§ 72.051-55.................................................... 12

x TABLE OF AUTHORITIES (CONT'D)

OTHER AUTHORITIES PAGE(S)

Restatement (Second) of Torts § 323 (1965).................................................. 18

xi STATEMENT REGARDING ORAL ARGUMENT

Appellee Brian Ramirez believes that Appellants have failed to show

any error in how the trial of this case was handled, the jury’s findings, or the

final judgment and that this Court can reach that same conclusion based on

the record and arguments before it, without the need for oral argument.

However, in the event that this Court grants oral argument, Appellee

respectfully requests this Court allow him to participate.

RECORD CITATIONS

The 4 volume Clerk’s Record will be referred to by volume number

and then page number—e.g., 2 CR 1.

The Reporter’s Record consists of 13 volumes. References to the first

12 volumes of the Reporter’s Record will be by volume and page number—

e.g., 2 RR 2. Volume 13 of the Reporter’s Record includes trial exhibits.

Appellee shall refer to those exhibits by volume, exhibit number, and exhibit

page number—e.g., 13 RR PX # at #.

xii RESTATEMENT OF ISSUES PRESENTED

1. Submission of a negligent supervision claim against TCI (Responsive to Issues Presented Nos. 1 & 2).

a. Was the submission of a negligent supervision claim against Transportation Concepts, Inc. (“TCI”) proper where the claim is supported by the legally and factually evidence and by Texas law?

b. If so, was it error to submit a legally valid, direct negligence claim against TCI simply because TCI stipulated that its employee- driver was in the course and scope of his employment at the time of the collision with Mr. Ramirez and no gross negligence claim was submitted to the jury?

c. Finally, if it was error to submit the legally valid, direct negligence claim against TCI, did TCI show that any such error was harmful?

2. Evidentiary Issues (Responsive to Issues Presented Nos. 3 & 4).

a. Did the trial court abuse its discretion in admitting the testimony of Mr. Ramirez’s safety and trucking expert, Roger Allen?

b. Did the trial court abuse its discretion in admitting the testimony of Mr. Ramirez’s accident reconstructionist, Steve Christofferson?

c. Did the trial court abuse its discretion in excluding evidence that Brian Ramirez did not have a valid Texas driver’s license at the time of the collision?

d. Assuming any of these evidentiary rulings constituted error, did TCI demonstrate that any such error was harmful?

3. Incurable jury argument (Responsive to Issue Presented No. 5). Did Mr. Ramirez’s counsel’s use of a “per diem” measure of noneconomic damages during closing argument constitute “incurable jury argument”? xiii 4. Cumulative error (Responsive to Issue Presented No. 6). Assuming more than one of the issues raised by Appellants constituted error, and assuming that those errors individually were not harmful, did Appellants demonstrate that the cumulative effect of those alleged errors was harmful such that a new trial is warranted?

xiv INTRODUCTION

Appellants Transportation Concepts, Inc. and Eloy Canales

(collectively “TCI”) spend a great deal of their briefing saying (but never

showing how) Mr. Ramirez’s evidence and arguments at trial “poisoned,”

“prejudiced,” and “tainted” the trial. TCI leans heavily into the argument

that a direct negligence claim against TCI should have never been submitted

and somehow harmed TCI when it was. In the process, however, TCI forgets

about Mr. Canales, its driver who was found to be negligent and a proximate

cause of the collision. TCI does not challenge his liability, for which it is

vicariously liable. TCI also does not challenge the jury’s valuation of Mr.

Ramirez’s injuries caused by the collision. Since these findings

independently support the judgment, it is difficult to see how the errors TCI

complains about here would have changed the outcome and they certainly

do not bother to make that connection.

TCI and Canales focus almost exclusively (save for some evidentiary

complaints and a patently incorrect claim of incurable jury argument) on a

direct negligence claim against TCI it claims was legally invalid and not

supported by the evidence. Of course, TCI fails to explain to the Court—like

it failed to explain to the trial court below—how the negligent supervision 1 claim, based on TCI’s negligence in selecting the route its employees are to

drive, is either legally invalid or not supported by the evidence. More

telling, however, is the outright failure to explain to this Court how the

submission of that claim against TCI harmed it. That’s because the claim

was both legally and factually valid. Moreover, TCI stipulated to vicarious

liability for its employee’s conduct, which the jury found to be negligence

and a proximate cause of the collision. TCI does not challenge that finding,

or the damage values assigned by the jury. Therefore, there can be no harm

to TCI and certainly TCI has not bothered to show any. The trial court did

not commit error, the jury’s verdict was supported by the evidence, and the

final judgment should be affirmed.

STATEMENT OF FACTS

A. TCI’s employee causes a collision with Mr. Ramirez when he attempts an unprotected left turn in a tractor trailer.

Mr. Ramirez was seriously and permanently injured when his car

collided with a tractor trailer driven by Eloy Canales around 5:30 am, while

it was still dark, on February 2, 2021. (1 CR 267-68; 2 CR 1277). Canales, an

employee of and driver for Defendant TCI, failed to yield the right of way to

Mr. Ramirez’s vehicle from a stop sign, rolled into the intersection and

2 directly into Mr. Ramirez’s lane of traffic, in the process of attempting to

make an unprotected lefthand turn. (2 CR 1277). Before Defendant Canales

could complete the risky turn and while his trailer was still blocking

oncoming lanes of traffic, Mr. Ramirez collided with the middle of the trailer

that was in his lane. (2 CR 1277). Canales failed to keep a proper lookout

and failed to ensure he had sufficient time to make this dangerous left-hand

turn and completely clear the trailer before any oncoming traffic, like Mr.

Ramirez who had the right-of-way, reached him. (2 CR 1277-78). On appeal,

Canales and TCI do not dispute that Canales was negligent or that his

negligence proximately caused the wreck.

B. TCI negligently supervised its employee by choosing the route he was to take—a route that required him to make the unprotected left turn.

In supervising its drivers, TCI charged certain “operations” employees

to scout and determine designated routes for its drivers to take. (6 RR 184:21-

185:1; 2 CR 1279-80). TCI’s operations manager, Jimmy Wren, selected the

route Mr. Canales took to exit the Amazon fulfillment center. (6 RR 184:23-

185:1; 2 CR 1280). The Verde Parkway route, which included an unprotected

left-hand turn, was selected after Mr. Wren spent approximately one hour

during the daytime driving around the facility. (6 RR 185:2-7; 2 CR 1280). 3 Mr. Wren did not consider any other routes in making his selection,

including a route that would not have required an unprotected left turn. (7

RR 40:21-41:3; 2 CR 1280). Once the selection was made by TCI, its driver

was “instructed” to take this route. (2 CR 1280)

Mr. Ramirez’s expert, Roger Allen, discussed the problem with TCI

choosing this particular route. According to Mr. Allen, the safest route from

the Amazon warehouse to IH 35 was for Mr. Canales to use Mid Cities

Parkway which provided a straight drive to the southbound IH 35 access

road and a right turn onto the access road.” (4 RR 81:10-14). Mr. Allen also

reviewed TCI’s own “Professional Truck Driver Training Program” which

noted the statistics on the dangers of making left hand turns as compared to

right hand turns. (4 RR 71:17-22). TCI thus knew that a route like the one it

required its employee take, that included an unprotected left turn,

particularly at 5:30 a.m., was significantly more risky than another, available

route. (4 RR 189:25-190:20; 6 RR 178:22-180:10). TCI just never bothered to

tell any of its employees about the risks associated with this route. (4 RR

73:17-25).

None of TCI’s local employees—whether in safety, operations, or

professional drivers, including Mr. Canales—had ever seen or heard of this 4 Program. (4 RR 149:3-12, 159:1-11; 6 RR 177:17-178:3). Not surprisingly,

TCI’s own local safety and operations personnel—the ones responsible for

supervising its professional drivers—did not understand or comprehend the

proper way to handle right-of-ways, left-hand turns, and driving conditions

at night versus daytime. (6 RR 178:22-180:10; 6 RR 185:8-186:18). This

fundamental misunderstanding of the risks associated with Canales’s route

was compounded by the fact that Mr. Wren, the one responsible for choosing

the route Mr. Canales was required to take, had never held a commercial

driver’s license, never operated an 18-wheeler, and was unfamiliar with

even the most basic knowledge of the relevant state and federal regulations

regarding motor carriers. (6 RR 156:5-18).

C. The jury finds Mr. Ramirez, Canales, and TCI all negligent in causing the collision.

Faced with this evidence, the jury found each party to be negligent and

a proximate cause of the collision. (4 CR 4446-47). TCI’s negligence was

submitted separately from its employee and each theory—negligent training

and supervision—were submitted separately. The jury rejected Mr.

Ramirez’s claim of negligent training but found that TCI was negligent in its

supervision of its employee—a claim that centered on TCI’s selection of the

5 route its employees were required to take. (4 CR 4448). The jury further

apportioned fault among the parties, finding Mr. Ramirez twenty-percent

(20%) responsible, Mr. Canales twenty-three percent (23%) responsible, and

TCI fifty-seven percent (57%) responsible. (4 CR 4449). The trial court

entered a final judgment consistent with the jury’s verdict (4 CR 4492-4496)

and this appeal followed.

SUMMARY OF ARGUMENT

There was no error in how the trial of this case was conducted, how it

was submitted, or its outcome. TCI—at least in significant part—agrees.

Rather, TCI focuses, rather selfishly, on itself and the finding of direct

negligence against it. But, this finding was supported by the evidence and

none of the trial court rulings on evidence, expert testimony, or the claim’s

ultimate submission impacted the validity or the accuracy of the jury’s

finding. TCI, by its own admission, was responsible for its employee’s

negligence and was also responsible for its own. The Final Judgment, which

accurately reflected the jury’s findings, was correct and should be affirmed.

6 ARGUMENT & AUTHORITIES

I. The negligent supervision claim against TCI.

TCI focuses the bulk of its brief on the negligent supervision claim

against it and the jury’s finding that TCI was directly liable on that claim.

TCI devotes two of its issues, each with various subparts, to this complaint.

However, the complaint can really be reduced to two principal arguments:

(1) TCI’s claim that the negligent supervision is legally invalid because it

stipulated to course and scope and Mr. Ramirez withdrew his gross

negligence claim at the end of trial; and (2) the negligent supervision finding

is not supported by the evidence. See Appt. Br. at 8-37. Both arguments are

without merit.

A. Standard of Review—Legal and Factual Sufficiency

When determining whether evidence is legally sufficient to support a

jury’s finding, appellate courts consider “evidence favorable to the finding

if a reasonable fact finder could and disregard evidence contrary to the

finding unless a reasonable fact finder could not.” Dallas Nat’l Ins. Co. v.

Morales, 394 S.W.3d 826, 830–31 (Tex. App.—El Paso 2012, no pet.) (citing

Cent. Ready Mix Concrete Co., Inc. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007));

City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). “Evidence is legally 7 insufficient only when: (1) the record discloses a complete absence of

evidence of a vital fact; (2) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact; (3) the

evidence offered to prove a vital fact is no more than a mere scintilla; or (4)

the evidence establishes conclusively the opposite of a vital fact.” Dallas Nat’l

Ins. Co, 394 S.W.3d. at 831 (citing Uniroyal Goodrich Tire Co. v. Martinez, 977

S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999)). A “no-

evidence” point fails if more than a scintilla of evidence supports the

challenged finding. Id. (citing State Off. of Risk Mgmt. v. Escalante, 162 S.W.3d

619, 624 (Tex. App.—El Paso 2005, pet. dism'd)). This is true “[w]hen the

appellant challenges the legal sufficiency of the evidence supporting an

adverse finding on which it did not have the burden of proof at trial.” State

Off. of Risk Mgmt. v. Pena, 548 S.W.3d 84, 90 (Tex. App.—Corpus Christi 2018,

no pet.) (citing City of Keller, 168 S.W.3d at 807–08; Croucher v. Croucher, 660

S.W.2d 55, 58 (Tex. 1983)).

As to factual sufficiency of the evidence, appellate courts “examine all

the evidence in the record, both for and against the lower court’s findings,

and reverse only if it is so against the great weight of the evidence as to be

clearly wrong and unjust.” Dallas Nat’l Ins. Co., 394 S.W.3d at 831 (citing Ortiz 8 v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Newberry v. Newberry, 351 S.W.3d

552, 555–56 (Tex. App.—El Paso 2011, no pet.). Additionally, “[w]hen

reviewing a challenge that the evidence is factually insufficient to support a

finding, a reviewing court will set aside the finding only if, after considering

and weighing all of the evidence in the record pertinent to that finding, the

court determines that the credible evidence supporting the finding is so

weak, or so contrary to the overwhelming weight of all the evidence, that the

finding should be set aside.” Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.

1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

B. TCI’s stipulation to course and scope did not render the direct negligence claims against it “legally invalid.”

TCI’s first argument is that the submission of a negligent supervision

claim against it requires reversal because it is legally invalid. See Appt. Br.

at 9. TCI is wrong for several reasons.

First, TCI’s admission of vicarious liability for its employee’s conduct

did not bar Mr. Ramirez from pursuing the negligent supervision claim. TCI

relies on Patterson v. East Texas Motor Freight Lines, 349 S.W.2d 634, 636 (Tex.

Civ. App.—Beaumont 1961, writ ref’d n.r.e.), and its progeny to support this

9 argument. See Appt. Br. at 10. But, the law is not as clear cut as TCI wishes

it to be.

First, a stipulation as to course and scope does not render the direct

negligence claim “legally invalid.” The claim remains valid. 1 Patterson

simply holds that absent allegations of gross negligence, direct negligence

claims are immaterial once the stipulation to course and scope is made. See

id. at 636. But the claim remains viable and was supported by the evidence

in this case, as demonstrated below.

1 In the trial court, TCI took the position that because the Texas Supreme Court had yet

to officially adopt a direct negligence claim like negligent supervision, the negligent supervision claim was somehow invalid. (4 CR 4559). TCI does not make that same argument here, and for good reason. All Texas courts of appeals, including this one, and the Fifth Circuit recognize negligent supervision as a viable cause of action in Texas. See e.g., Moore Freight Servs., Inc. v. Munoz, 545 S.W.3d 85, 97-98 (Tex. App.—El Paso 2017, pet. denied); Garrett v. Great Western Distributing Co. of Amarillo, 129 S.W.3d 797, 803 (Tex. App.—Amarillo 2015, pet. denied); Knight v. City Streets, L.L.C., 167 S.W.3d 580, 584 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Morris v. JTM Materials, 78 S.W.3d 28, 49 (Tex. App.—Fort Worth 2002, no pet.); Garcia v. Allen, 28 S.W.3d 587, 592 (Tex. App.—Corpus Christi-Edinburg 2002, pet. denied); Continued Care, Inc. v. Fournet, 979 S.W.2d 419, 421 (Tex. App.—Beaumont 1998, pet. denied); Mackey v. U.P. Enters, Inc., 935 S.W.2d 446, 459 (Tex. App.—Tyler 1996, no pet.); Moore v. Strike, LLC, No. 04-16-00324-CV, 2017 WL 96130, at *7 (Tex. App.—San Antonio Jan. 11, 2017, no pet.) (mem. op.); Black v. Smith Protective Servs., Inc., No. 01-14-00969-CV, 2016 WL 5400565, *5 (Tex. App.—Houston [1st Dist.] Sep. 23, 2016, no pet.) (mem. op.); Garza v. Beck, No. 11-05-00067-CV, 2006 WL 1554606, *1 (Tex. App.—Eastland Jun. 8, 2006, no pet.) (mem. op.); see also Prim v. Stein, 6 F.4th 584, 592 (5th Cir. 2021); Legeland v. Kirk, No. 1:16-CV-676-DAE-ML, 2019 WL 4060893, *6 (W.D. Tex. Jun. 5, 2019). 10 More importantly, however, the rule set out in Patterson—which TCI

seems to have named “the admission rule”—is not a rule that enjoys

universal acceptance. Not all courts adhere to Patterson’s holding and this

“rule” has never been adopted by the Texas Supreme Court or the San

Antonio Court of Appeals, the court from which this case was transferred.2

See Werner Enters., Inc. v. Blake, 672 S.W.3d 554, 586 (Tex. App.—Houston

[14th Dist.] 2023, pet. granted) (noting that “respondeat superior admission

rule” has not been recognized in the Fourteenth Court of Appeals district).

In fact, there is a split in authority.

Contrary to Patterson, the Fort Worth Court of Appeals indicated a

plaintiff may proceed with a negligence claim against both the employer and

employee, and both theories of negligence may be submitted to the jury even

when gross negligence is not asserted against the employer. Bedford v. Moore,

166 S.W.3d 454, 461-63 (Tex. App.—Fort Worth 2005, no pet.) (“[W]e hold

that the proper submission in a simple negligent entrustment or hiring claim,

2 The one El Paso case TCI cites, Atlantic Industries, Inc. v. Blair, 457 S.W.3d 511 (Tex.

App.—El Paso 2014), rev’d, 482 S.W.3d 57 (Tex. 2016), does not support this conclusion. Rather, Atlantic Industries simply stands for the proposition that “negligent entrustment and respondeat superior are mutually exclusive modes of recovery.” See id. at 517. But this is not a negligent entrustment case. See pages 17-18, below. 11 based upon sufficient evidence to warrant the submission, is to include the

alleged negligent hiring or entrusting employer in an initial liability question

and in the comparative negligence questions.”).

In 2021, the Texas Legislature acknowledged that the Patterson rule is

not the rule in Texas when it passed H.B. 19, which is now codified in

Chapter 72 of the Texas Civil Practices and Remedies Code. By enacting H.B.

19, the Texas Legislature did not purport to create any new causes of action.

Instead, the Legislature acknowledged that these direct negligence claims

remain viable even in the face of a stipulation as to course and scope. The

Legislature sets forth a new statutory scheme as to how such claims should

be litigated going forward. Tex. Civ. Prac. & Rem. Code §§ 72.051-55

(providing for a bifurcated trial of claims against a driver of a commercial

vehicle, and direct negligence claims against the driver’s employer for claims

such as negligent entrustment, negligent hiring, negligent retention,

negligent supervision, and negligent training). In fact, under Chapter 72,

when an employer stipulates that its driver was an employee acting within

the course and scope of employment, such a stipulation merely affects the

phase of trial in which a party may present certain evidence related to direct

negligence claims against the employer. Tex. Civ. Prac. & Rem. Code § 72.053. 12 If the Patterson or “admission” rule were actually the law in Texas, this

statutory scheme for trying direct negligence cases under Chapter 72 would

have no purpose and be a nullity.

Applying Patterson as TCI contends would also ignore Texas Civil

Practices and Remedies Code § 33.003(a)’s requirement that the trier of fact

determine the percentage of responsibility attributable to each claimant, each

defendant, each settling person, and each properly designated responsible

third party. TCI’s argument would require that the jury ignore entirely the

independent responsibility of TCI. Indeed, the Chief Justice of the Fourteenth

Court of Appeals in Werner acknowledged this tension, stating “I would not

impose such a rule inasmuch as the proportionate-responsibility statute

requires the trier of fact to determine the percentage of responsibility borne

by each claimant, each defendant, each settling person, and each properly

designated responsible third party.” Werner Enters. Inc., 672 S.W.3d at 624

(Christopher, C.J., dissent). In fact, Justice Christopher believed that the facts

in Werner Enterprises, Inc. v. Baker, which are not unlike the facts presented

here, made it “a clear example of why a separate submission is required”

because “[a] jury could easily conclude that while [the driver] was negligent

13 in not slowing to a crawl, his employer was more negligent for having

contradicted [his] training.” Id.

As much as a defendant has a right to include every possible

responsible third party in the apportionment question in an effort to reduce

the risk that defendant is not jointly and severally responsible, a plaintiff also

has that right—particularly, like here, where there are claims of contributory

negligence—to reduce the risk that a jury finds his negligence to be over the

fifty percent threshold to recovery.

Ultimately, TCI’s argument assumes—wrongly—that the negligent

supervision is simply another claim of derivative liability against TCI for its

employee’s negligence. See Appt. Br. at 12. But, the negligent supervision

claim against TCI is not a claim that is contingent on Canales being negligent.

Rather, it exists independently of Canales’s negligence. Tellingly, the

negligent supervision theory was not conditioned on a “yes” answer to

Canales’s negligence. (4 CR 4448). That is because TCI was negligent by

requiring that Canales take a dangerous route and whether Canales

executed the unprotected left turn negligently or not, it was negligence for

TCI to make him even attempt it. Since the claim here was not derivative of

14 the negligence claim against Canales, the rule TCI seeks to have this Court

apply here simply does not apply, even under TCI’s authority. 3

For all of these reasons, the direct, negligent supervision claim against

TCI was properly submitted to the jury, even in the face of TCI’s stipulation

as to course and scope.

C. The gross negligence claim was not a “sham.”

Next, TCI tries to argue that Mr. Ramirez’s gross negligence claim

against TCI was a sham, but it is unclear for what purpose. See Appt. Br. at

12-14. TCI claims that Mr. Ramirez “should not have been able to use [his

gross negligence claim] because [Mr. Ramirez] knew his claim for gross

negligence was meritless—which he acknowledged after getting into the

inflammatory evidence by dropping the claim before the charge

3 TCI cites a Wyoming Supreme Court case for the proposition that the “admission rule”

is essential for protecting the trial process’s reliability by precluding highly prejudicial evidence and argument from tainting the jury’s liability determination.” See Appt. Br. at 11 (citing Bogdanski v. Budzik, 408 P.3d 1156, 1164 (Wyo. 2018)). Of course, as with most of TCI’s cites, TCI only tells half the story. A more recent Wyoming Supreme Court case distinguishes Bogdanski and found that a direct negligence claim is properly submitted— even where TCI’s so-called “admission rule” applies—where there is evidence of direct negligence on the part of the employer that is separate and independent from the employee’s tortious conduct. JTL Group, Inc. v. Gray-Dockham, 510 P.3d 1060, 1067 (Wyo. 2022).

15 conference.” See Appt. Br. at 13. Of course, no part of this statement is

actually true.

A plaintiff can always choose to drop some or all of his claims prior to

the submission of his claims to the jury. See, e.g., Tex. R. Civ. P. 162, 165. TCI

does not claim that the gross negligence claim was frivolous when it was

pled or at any time during the trial. Rather, TCI simply attempts to implicate

that the claim was meritless simply because Mr. Ramirez and his attorneys

chose to drop it at the end of the trial. This was not an acknowledgment that

the claim was meritless, nor could it have been considering that Mr. Ramirez

had sufficient proof of TCI’s gross negligence to survive TCI’s motion for

summary judgment and motion for directed verdict. (2 CR 1767; 9 RR 83:24-

25). Ultimately, TCI’s argument has no bearing on whether the negligent

supervision claim was properly submitted. It was.

D. Legally and factually sufficient evidence supports the negligent supervision finding.

Next, TCI claims that the evidence was legally and factually

insufficient to support the negligent supervision claim. TCI seems to base

this argument on a fundamental misunderstanding of negligence theory and

the risk created by TCI’s negligent supervision.

16 TCI continues to believe that negligent supervision could not be

proven without some showing that Canales was an unfit or incompetent

employee, citing to evidence that Canales was a qualified driver with prior

experience. See Appt. Br. at 20. But, the risk here was different and one that

TCI took upon itself to address for its drivers. Specifically, the risk involved

an unprotected left turn that TCI made an unnecessary part of Canales’s

route. TCI’s own corporate safety program, which it never bothered to

implement locally, expressly recognized the inherent, heightened risk

associated with unprotected left-hand turns. (4 RR 71:17-22). According to

TCI’s own written program, 53.1 percent of crossing-path crashes involve

left turns, while only 5.7 percent involve right turns. (4 RR 71:17-22). In

other words, left hand turns carry a ten-times-greater risk of a deadly

collision. That is precisely the risk that was at issue in this case and the

precise risk that proximately caused the collision and the injuries to Mr.

Ramirez. 4

4 Surprisingly, TCI also argues briefly that Mr. Ramirez failed to prove that TCI owed

any duty to select a different route or breached any such duty. See Appt. Br. at 23-26. Of course, this argument ignores the fact that a duty to use reasonable care may arise when a person undertakes to provide services to another, either gratuitously or for compensation. Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000). Under those circumstances, the party is subject to liability to the other if it fails to exercise care in doing so and that failure increases the risk of such harm, or the harm is suffered because of the 17 Competency of the driver is one thing. But, part of TCI’s supervision

of its employees involved planning the route for its drivers. And, in doing

so, TCI knew that left hand turns are significantly—10 times—more

dangerous than right hand turns. Yet, in this case, TCI’s operations manager

planned a route that almost immediately involved an unprotected left hand

turn, in the dark, when an alternative, and safer, route was available. Had

the alternative, safer route been given to Canales, this collision never would

have happened. (4 RR 160:10-18).

TCI cites to Mr. Wren’s testimony regarding the various reasons this

particular route was chosen. See Appt. Br. at 34-35. But, there is no question

that TCI knew that the route was more dangerous because it involved an

unprotected left turn and ordered Canales to take that route anyway. Mr.

Wren attempted to justify his decision to make Canales take the less safe

other's reliance upon the undertaking. Id. (citing Restatement (Second) of Torts § 323 (1965)). Here, TCI undertook a duty in the supervision of its employees to choose the safest route available for them. Its employees, like Mr. Canales, who are also owed a nondelegable duty by their employers to maintain a safe workplace, including adequate help for the performance of their work, was entitled to rely on TCI’s reasonable execution of this duty. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996); Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995); see also Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex. 1974).

18 route, but the jury was free to discredit his testimony. And they were

certainly entitled to decide that TCI was negligent in the supervision as it

relates to route selection. But, to argue that there is no evidence to support

a claim for negligent supervision is simply without merit.

E. Submission of the negligent supervision claim does not require a new trial.

Ultimately, TCI wants a new trial, but fails to show why it is entitled

to one. See Appt. Br. at 14-17. 5 TCI claims that submitting the negligent

supervision claim “poisoned the whole trial because it allowed Plaintiff to

distract the jury from the events of the accident and make the litigation about

TCI’s alleged deficiencies.” See id. at 14. This argument ignores the fact that

the jury was able to focus on just the collision. The jury found both

participants—Mr. Ramirez and Mr. Canales—to be responsible and

5 TCI takes this argument a step further, claiming that “[t]he appropriate disposition

under these circumstances is to reverse and render judgment in favor of TCI and remand the remaining claims against Canales for a new trial.” See Appt. Br. at 16. Of course, the case TCI cites as support for this proposition, Enbridge Pipelines (N. Tex.) L.P. v. Sullivan, 614 S.W.3d 198 (Tex. App.—Tyler 2020, no pet.), has nothing in common with this case. The judgment in Enbridge Pipeline was not reversed and remanded for a new trial because it was tried on an invalid direct negligence theory, as TCI represents. Rather, the jury was only asked about the employee’s negligence, not the employer, and the court ultimately reversed and remanded for a new trial because the jury was not given instructions to disregard the employer’s conduct in deciding the employee’s negligence, particularly where spoliation by the employer was a pervasive theme at trial. See id. at 218-19, 221. 19 apportioned responsibility among and between them. Tellingly, TCI does

not question any other findings by the jury, including the liability of the two

drivers and the damages Mr. Ramirez suffered.

TCI’s direct negligence was submitted separately so there was no risk

that its consideration would taint any other issue. In fact, both claims of

negligent training and supervision were submitted separately, as TCI

requested. The jury was able to consider all the evidence, differentiate

between the two negligence claims, and answer them based on the evidence

presented. If the negligent training question was correctly decided, TCI fails

to show how the negligent supervision claim was not and, more importantly,

how the simple fact of its submission somehow infected the entire trial.

TCI acknowledges that there is no basis to presume harm since the

theory submitted was not an erroneous theory of law. See Appt. Br. at 16.

Thus, TCI was required to show that any error in its submission probably

caused the rendition of an improper judgment. See Horton v. Kansas City So.

Ry. Co., 692 S.W.3d 112, 146 (Tex. 2024). It failed to do so. No new trial is

necessary or warranted.

20 II. The trial court did not abuse its discretion in admitting or excluding certain evidence.

A. Standard of Review—Abuse of Discretion.

The admission or exclusion of evidence is committed to this Court’s

sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.

1991); see also, e.g., Service Corp. Int’l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011).

The court abuses its discretion when it acts without regard for any guiding

rules or principles. City of Brownsville, 897 S.W.2d at 754.

Even where a trial court abuses its discretion, the party seeking to

reverse a judgment based on evidentiary rulings must show that the

admission or exclusion probably resulted in an improper judgment—i.e.,

that the judgment turns on the particular evidence excluded or admitted. Id.

at 753-54; see also Tex. R. App. P. 44.1(a).

B. Roger Allen’s testimony regarding TCI’s negligent supervision was proper.

TCI complains of Roger Allen’s testimony and opinions regarding

TCI’s negligent supervision of Mr. Canales, claiming that his opinions are

speculative and unreliable. TCI lost this argument twice, prior to trial and

again during trial. TCI also seems to—for the first time—criticize Mr. Allen’s

qualifications. Although waived because that objection was never raised at

21 trial, 6 out of an abundance of caution, Mr. Ramirez will show how Mr. Allen

is qualified and how his opinions are reliable and admissible.

1. Roger Allen is qualified to talk about the trucking industry and TCI’s supervision of its drivers. In one paragraph, citing a single case, TCI attempts to discredit Mr.

Allen’s qualifications even though they have never complained about his

qualifications before. See Appt. Br. at 37-38. That criticism is without merit.

Mr. Allen is a highly qualified commercial truck driving expert. Over

the last ten years, countless courts have acknowledged Roger Allen as an

expert in commercial trucking. In Brown v. Eaves, for example, the Southern

District of Texas concluded that “Mr. Allen’s CV highlights his extensive

experience not only as a commercial driver, but also as a Safety Director,

Transportation Consultant, Transportation Manager, General Manager, and

Truck Broker.” Civ. Action No. 4:21-cv-959-KPJ, 2022 WL 17812441, at *3

(E.D. Tex. Dec. 19, 2022). Based on his experience alone, that court found Mr.

Allen was qualified to render opinions on Federal Motor Carrier Safety

Regulations. Id. (citing Van Winkle v. Rogers, No. 16:19-cv-1264, 2022 WL

4231013, at *2 (W.D. La. Sept. 13, 2022) (referencing a string of cases that have

6 In its motion to strike Mr. Allen’s opinions, TCI only claimed that “Mr. Allen’s opinions

are unreliable, biased, and unsupported.” (2 CR 1480). 22 found Mr. Allen is qualified as an expert in the commercial trucking

industry, including safety regulations and industry standards)).

TCI cites a single case from Oklahoma and a single sentence in that

case to question Mr. Allen’s qualifications. See Appt. Br. at 38 (citing Cox v.

Swift Transp. Co. of Ariz. & LLC, No. 18-CV-0117-CVE-JFJ, 2019 WL 3719887,

at *6 (N.D. Okla. Aug. 7, 2019)). That case does not support TCI’s claim. In

Cox, the Oklahoma Court never actually limited Mr. Allen’s testimony, but

simply reserved that ruling for trial. Cox, 2019 WL 3719887, at *6. The court

simply noted that the record was unclear regarding Mr. Allen’s

qualifications because it only had his single page resume before it. Id. But,

the court never found him to be unqualified.

TCI even acknowledges (although downplaying it significantly) that

Mr. Allen has “some experience” in commercial truck driving. See Appt. Br.

at 38. What TCI fails to mention, however, is that Mr. Allen’s experience

includes driving more than two million miles on roadways as a commercial

truck driver, vast knowledge of industry standards requiring an 18-wheeler

to have proper clearance of the intersection before traffic reaches that

intersection, and has more than forty-five years’ experience in the

commercial trucking industry as an owner, driver, educator, and consultant. 23 (4 RR 38-44). The implication that Mr. Allen is unqualified is belied by the

record and, as the trial court determined twice, Roger Allen was qualified to

testify as to TCI’s negligent supervision of Canales.

2. Roger Allen’s testimony on route selection is reliable and relevant to TCI’s negligent supervision of Canales. TCI’s chief complaint has always been that Mr. Allen should have been

prevented from testifying that TCI was required to advise its drivers of the

safer, alternative Mid-Cities route that did not require an unprotected left-

hand turn. See Appt. Brief at 37-38. As the trial court correctly determined in

its gatekeeping role, Mr. Allen’s testimony is not only relevant, but also

reliable.

Once again, TCI reaches out of state to criticize Mr. Allen’s opinions,

this time relying on a single, unpublished federal District Court opinion

from Utah for its argument that Mr. Allen cannot testify to industry

standards. Id. at 39-40 (citing Ashlike v. Mullen Crane & Transp., Inc., No.

2:12CV11DAK, 2014 WL 3640735 (D. Utah July 23, 2014)). Again, what TCI

represents the case to say and what the case actually says are two very

different things.

24 Ashlike simply restricted Mr. Allen’s opinions, determining that he

may not offer opinions contrary to the court’s prior holdings regarding the

application of the comparative fault system in relation to the Utah Trucking

Guide, finding “such matters are issues of law which are decided by the

court.” Id., 2014 WL 3640735 at *5. The Utah court did, however, confirm that

Mr. Allen could testify to “industry standards and matters within his

expertise.” Id. If anything, Ashlike supports the trial court’s decision to

permit Mr. Allen’s relevant and reliable testimony on the proper route TCI

should have taken based on his “experience and industry standards.”

Allen is qualified to testify as a trucking expert on proper route

selection and his opinions on that topic are reliable. Indeed, the proper

foundation for his expertise was presented to the jury. Mr. Allen testified at

trial regarding his knowledge of FMCSR, the Commercial Vehicle

Preventable Accident Manual, and his extensive knowledge and education

in state and federal regulations. (4 RR 49-59). Mr. Allen has testified as an

expert witness in more than 125 cases, including reviewing documents

reflecting driver and company conduct to determine whether those actions

violated federal and state regulations or industry standards. (4 RR 57).

25 Regarding route selection, Mr. Allen testified to his specific, extensive

experience in designing and advising route selections for trucks and buses

over his forty plus year career, noting that “route selection is one of the most

important safety things that you can do when you’re operating commercial

motor vehicle.” (4 RR 74:1-25). Mr. Allen also highlighted his extensive

knowledge of state and federal regulations and industry standards

regarding unprotected left-hand turns, citing to “federal guidelines and the

J.J. Keller documents” which discuss the dangers and extreme caution

necessary when making unprotected left-hand turns. (4 RR 60:4-20). Based

on his experience in the industry, Mr. Allen made it clear for the jury that

there “is no industry standard” at the federal or state level “that allows or

permits an 18-wheeler driver to take a blind left turn” noting that it is “the

most dangerous turn you can make”. (4 RR 70:14-21).

TCI’s criticism also ignores the reality that Mr. Allen did not need to

go far to find a standard that prohibited such unprotected turns--TCI’s own

training program highlighted the extreme risks associated with left-hand

turns, stating that “53.1 percent of crossing path crashes, which would be

where a truck is making a left-hand turn where it’s crossing, involve[e] left-

hand turns, but only 5.7 percent involve right-hand turns.” (4 RR 71:14-22). 26 The problem with TCI’s training program was that it was never actually

implemented at the local level to train TCI’s drivers, including Canales. (4

RR 73:17-24, 160:10-22).

Armed with the industry knowledge regarding the dangers associated

withs such turns, Mr. Allen personally inspected the scene and route used

by TCI and Canales in this case. He observed the Amazon warehouse facility

and all available routes leaving the facility and experience, testified that the

safest, feasible route for Canales was via the Mid Cities parkway because it

avoided an unprotected left-hand turn. (4 RR 75-90, 75:1-15; 178:4-7). Based

on his knowledge, experience, and training, and of safety regulations, Mr.

Allen concluded that TCI failed to properly supervise its employee when it

“told him to go this way,” . . . instead of the Mid Cities route. (4 RR 92:24-

93:2; 113:4-9). That opinion was sound, reliable, and not speculative. The

trial court properly admitted it.

C. Allen’s opinions regarding TCI’s gross negligence were relevant and reliable.

Mr. Allen’s opinions regarding TCI’s gross negligence were also

properly admitted. TCI claims that Mr. Allen’s testimony was not based on

proper foundation, that he was not qualified to testify regarding gross

27 negligence, and that any such testimony amounted to an unsupported,

improper legal conclusion. See Appt. Br. at 41. TCI’s objection is unfounded.

First, as demonstrated above, Mr. Allen was qualified to testify and his

opinions regarding TCI’s negligence were based on a proper foundation.

This leaves TCI’s claim that Mr. Allen could not testify to gross negligence

because it is an improper legal conclusion. However, Texas law is clear that

an “expert may state an opinion on a mixed question of law and fact as long

as the opinion is confined to the relevant issues and based on proper legal

concepts” Birchfield v. Texarkana Mem. Hosp., 747 S.W.2d 361, 365 (Tex. 1987)

(finding that an expert can state an opinion on negligence and gross

negligence as long as the opinion is based on proper legal concepts). 7

Here, Mr. Ramirez’s counsel read the correct definition for gross

negligence and Mr. Allen applied it to his review of the facts based on his

forty-five years of experience in the trucking industry as a safety expert. (4

RR 189-90). On cross-examination, TCI’s counsel asked Mr. Allen to recite

7 TCI’s reliance on Coastal TransportationCo. v. Crown Central Petroleum Corporation,136 S.W.3d 227 (Tex. 2004) is misplaced. In Coastal Transportation, the expert testimony was a bare legal conclusion lacking any evidentiary support. Id. at 233-34. By contrast, Mr. Allen’s testimony was based on his vast experience, familiarity with industry standards, and his examination of the scene.

28 the definition for gross negligence that has just been provided him. (4 RR

190:24-25) (“And, Mr. Allen, what is your definition of gross negligence?”).

Aside from being in improper question, TCI requested the very thing it was

objecting to—a legal conclusion.

Ultimately, the opinion was proper. It was based on a proper legal

definition of gross negligence and based on Mr. Allen’s experience,

knowledge, and review of the evidence in this case. Allen also testified that

TCI’s training program warned against left hand turns, failed to teach this

to their drivers, and instructed Canales to take a route that included a

dangerous, blind left-hand turn. (4 RR at 160:10-18). Allen’s opinions are

supported by his training, knowledge, experience, and his review of the facts

of this case as explained to the jury. The testimony was properly admitted.

D. Steve Christofferson’s testimony on negligent supervision is reliable.

TCI also objects, for the first time on appeal, to Mr. Ramirez’s accident

reconstructionist, Steve Christofferson. TCI claims that Christofferson’s

testimony that an alternative, superior route (Mid-Cities) was available and

should have been taken by Canales is conclusory because he did not

29 reference any “federal or state or industry authority.” See Appt. Br. at 40.

True to form, TCI only tells this Court half the story.

At trial, Mr. Christofferson was asked whether alternative routes were

available for Mr. Canales to take. (5 RR 150:24). TCI did not object to this

question or Mr. Christofferson’s answer. (5 RR 150:21-152:16). Mr.

Christofferson opined, after being shown an ariel photograph taken during

his investigation, that Mid-Cities is the superior route to exit the Amazon

facility. (5 RR at 150:21-151:5). Mr. Christofferson then testified that, based

on his review of the documents, Mr. Canales chose not to take this route

because he thought his tractor-trailer would not fit due to other trucks being

parked along both sides of the road. (5 RR at 152:20-153:3). Based on his

experience and specifically the work done to prepare his report in this case,

Mr. Christofferson explained that an 18-wheeler is eight and a half feet wide.

(5 RR at 153:4-12). The jury was also informed that Mid-Cities was divided

by a median and that the street itself is forty feet wide. (5 RR at 153:13-20).

Based on simple math, Christofferson explained to the jury that even

if trucks were parked on both sides of the street, there would still be

sufficient space for Mr. Canales to clear his tractor-trailer to take the Mid-

Cities route. (5 RR 153:25-154:6) (“was Mid Cities Parkway too narrow for 30 [Canales] to navigate his 18-wheeler? A: It was not.”). Christofferson’s

testimony is based on his actual examination of the area surrounding the

Amazon facility, his measurements taken onsite, and his unchallenged

expert qualifications in accident reconstruction. There is nothing conclusory

about his testimony.

E. Admission of these experts’ testimony was not harmful error.

“[A]dmission or exclusion [of evidence] is likely harmless if the

evidence was cumulative, or if the rest of the evidence was so one-sided that

the error likely made no difference.” Reliance Steel & Aluminum Co. v. Sevcik,

267 S.W.3d 867, 873 (Tex. 2008). The Texas Supreme Court has recognized

“the impossibility of prescribing a specific test” (McCraw v. Maris, 828

S.W.2d 757 (Tex. 1992)) and it is “more a matter of judgment than precise

measurement.” Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex.

2004).

As identified above, there is ample evidence that TCI failed to use its

safety training program and failed to properly supervise Canales by

instructing him in on basic state and federal industry standards from the

remaining portions of Allen and Christofferson’s testimony. Allen testified

repeatedly that TCI failed to utilize their safety program to properly instruct 31 Canales. Mr. Christofferson echoed this testimony by opining that Canales

failed to leave sufficient room to clear the intersection while making the

dangerous and blind left-hand turn. Even assuming Mr. Christofferson’s

testimony on route selection was improper, it was cumulative of Mr. Allen’s

evidence and therefore could not constitute harmful error. See Castro v.

Schlumberger Tech. Corp., 673 S.W.3d 294, 306 (Tex. App.—San Antonio 2023,

no pet.) (finding no error harmless when expert testimony was cumulative

of a third expert’s testimony that was not objected to). 8

F. The exclusion of evidence that Mr. Ramirez lacked a driver’s license was not error.

1. The lack of a driver’s license was not relevant to TCI’s contributory negligence defense.

TCI claims the trial court abused its discretion when it excluded

evidence that Mr. Ramirez did not have a current Texas driver’s license. See

Appt. Br. at 48-50. TCI claims that the evidence was relevant to show that

Mr. Ramirez was at fault for the collision. See id. at 45. As support, TCI relies

8 Regarding Mr. Allen’s testimony on gross negligence, the admission of such evidence

was proper because of the then-pending claim for gross negligence. It did not somehow become harmful error simply because that claim was not ultimately submitted to the jury. In fact, that fact prevents the admission of such evidence from being harmful error as a matter of law. 32 heavily on Mundy v. Pirie-Slaughter Motor Co., 206 S.W.2d 587 (Tex. 1947).

But, Mundy is a negligent entrustment case and, in that context, stands for

the rather unremarkable proposition that a person can be negligent for

entrusting a vehicle to an unlicensed driver. Id. at 589-90 (if statute requires

driver to be legally licensed to operate a vehicle, allowing driver to operate

it without a license would constitute negligence per se).

As to Mr. Ramirez, this is not a negligent entrustment case. Mr.

Ramirez was driving his own vehicle, and no one ever alleged that someone

else was negligent in entrusting the car to him. Rather, TCI seeks to simply

prove that Mr. Ramirez was negligent because he did not have a license. But

that is not the law.

The lack of a license does not, as a matter of law, make a driver liable

or constitute a proximate cause of the collision. Medina v. Salinas, 736 S.W.2d

224, 225 (Tex. App.—Corpus Christi-Edinburg 1987, writ denied). The lack

of a required legal license does not establish incompetence or recklessness.

4Front Engineered Solutions, Inc. v. Rosales, 505 S.W.3d 905, 911 (Tex. 2016).

“Some incompetent drivers are licensed, and some competent drivers are

unlicensed.” Williams v. Steves Indus., Inc., 699 S.W.2d 570, 574 (Tex. 1985)

(noting that “[t]here are a number of reasons a driver may not have a valid 33 license” including that the otherwise competent driver simply “failed to

apply for a license, or carelessly allowed the license to expire, or ha[d] it

revoked for failure to report an accident.”).

Here, TCI’s own offer of proof confirms that Mr. Ramirez was licensed

to drive in El Salvador but simply has not been able to take the driving

portion of his exam in Texas. (4 CR 4428-29). Mr. Ramirez had already taken

the online, written portion of the exam and had been trying to schedule the

in-person, driving exam, but was unable to because of Covid. (4 CR 4429-

30).

In light of this context, the trial court was correct to exclude this

evidence. TCI had no other evidence to show that Mr. Ramirez was not a

competent driver. Absent such evidence, the lack of a driver’s license, by

itself, was not admissible.

2. The exclusion of such evidence was not harmful.

But assuming such evidence was admissible, TCI fails to demonstrate

how it was harmed by its exclusion. After all, the jury found Mr. Ramirez to

be negligent and assigned 20% of the responsibility to him. TCI fails to show

how the outcome would be any different had this evidence been admitted.

34 III. There was no incurable jury argument.

TCI next argues that during closing argument, Mr. Ramirez’s counsel

suggested that the jury could calculate noneconomic damages based on a

“unit of time” or “per diem” basis and that this argument was “incurable.”

See Appt. Br. at 50-56. TCI’s argument is not supported by the law.

A. Standard of Review.

A complaint regarding improper jury argument must ordinarily be

preserved by a timely objection which is overruled. Living Centers of Tex.,

Inc. v. Penalver, 256 S.W.3d 678, 681 (Tex. 2008). In rare cases, however, an

argument can be considered incurable and a party can complain about it

even though it did not object to the argument when it was made in the trial

court. Id.

To prevail on a claim that an improper jury argument was incurable,

the complaining party must show that the argument by its nature, degree,

and extent constituted such error that an instruction from the court or

retraction of the argument could not remove its effects. Id. “[J]ury argument

that strikes at the appearance of and the actual impartiality, equality, and

fairness of justice rendered by courts is incurably harmful not only because

of its harm to the litigants involved, but also because of its capacity to 35 damage the judicial system.” Id. Appeals to racial prejudice, for example,

can be incurable because they improperly induce consideration of a party’s

race to be used as a factor in the jury’s decision. Id. “Unsupported, extreme,

and personal attacks on opposing parties and witnesses can similarly

compromise the basic premise that a trial provides impartial, equal justice.”

Id. Accusations of witness tampering, with evidence to support it, can also

be considered incurable, harmful argument. Id. The per diem argument in

this case was not improper and certainly did not amount to incurable

argument.

B. Jury argument suggesting a per diem or unit of time measurement for noneconomic damages is proper.

TCI fails to show how the per diem argument was improper, much less

that it rose to such a level that it can be considered “incurable.” TCI’s only

basis for criticizing the per diem argument is the recent plurality opinion in

Gregory v. Chohan, 670 S.W.3d 546 (Tex. 2023). See Appt. Br. at 51-53. But,

Gregory does not support TCI’s claim for a couple of reasons.

First, Gregory is not binding precedent. Plurality opinions do not

represent the view of a majority of the court at the time and are therefore not

binding precedent. In re State Farm Mut. Auto. Ins. Co., 629 S.W.3d 866, 872

36 n. 1 (Tex. 2021); see also Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 176–

77 (Tex. 1994) (when “the principles of law have not been agreed upon by a

majority of the sitting court, the plurality opinion is not authority for

determination of other cases, either in this Court or lower courts.”); Tex.

Dep’t of Mental Health & Mental Retardation v. Petty, 848 S.W.2d 680, 689 (Tex.

1992) (Cornyn, J., dissenting)(“And because today’s opinion is only that of a

plurality, none of these issues are settled. No court, no advocate, and no

litigant can justly claim the plurality opinion as precedent for any other

case.”). The Gregory decision, therefore, does not bind lower courts, and the

holding in Gregory—to the extent that there even is one—represents only the

opinion of a small minority of the members of the Texas Supreme Court.

Even then, Gregory does not prohibit per diem arguments.9 Texas state

and federal courts have long allowed for mathematical calculations and per

diem arguments when awarding damages and Gregory did not change that

practice. 10 See, e.g., Hernandez v. Baucum, 344 S.W.2d 498, 500 (Tex. Civ.

9 Gregory also never says that a per diem argument constitutes incurable jury argument

of the sort identified in other cases by the Texas Supreme Court.

10 TCI’s cite to federal cases is misplaced because in a federal diversity case, the propriety

of a jury argument is a matter of federal procedure, not state law. See Appt. Br. at 53-54. Thus, as the Fifth Circuit acknowledged in Westbrook, “whether Texas permits carte 37 App.—San Antonio 1961, writ ref’d n.r.e.); see also Foradori v. Harris, 523 F.3d

477, 511-12 (5th Cir. 2008); Grant v. CRST Expedited, Inc., No. 1:18-CV-433,

2021 WL 2098967, at *2 (E.D. Tex. March 10, 2021); Sunset Brick & Tile, Inc. v.

Miles, 430 S.W.2d 388, 390 (Tex. Civ. App.—Corpus Christi 1968, writ ref'd

n.r.e.); Chemical Exp. v. Cole, 342 S.W.2d 773, 777 (Tex. Civ. App.—Dallas

1961, writ ref’d n.r.e.); Louisiana & A. Ry. Co. v. Mullins, 326 S.W.2d 263, 268

(Tex. Civ. App.—Texarkana 1959, writ ref’d n.r.e.); Continental Bus Sys., Inc.

v. Toombs, 325 S.W.2d 153, 164-165 (Tex. Civ. App.—Fort Worth 1959, writ

ref’d n.r.e.); J. D. Wright & Son Truck Line v. Chandler, 231 S.W.2d 786 (Tex.

Civ. App.—Galveston 1950, writ ref’d n.r.e.).

Indeed, the recent plurality opinion in Gregory v. Chohan actually

supports using such arguments by emphasizing the importance of showing

how a noneconomic damage “verdict is within the bounds of reasonable

inference from the evidence.” 670 S.W.3d at 562 n. 13. Gregory, if it does

blanche use of a unit of time argument is not controlling.” Westbrook v. Gen. Tire & Rubber Co., 754 F.2d 1233, 1240 (5th Cir. 1985). Even then, however, Westbrook does not declare such arguments reversible per se but notes that the unit of time argument is permissible when couched with proper safeguards, like a cautionary instruction. Id. & at n. 5; see also Foradori, 523 F.3d at 511-12; Grant, 2021 WL 2098967, at *2. Of course, TCI never asked that any cautionary instruction be given to the jury in this case. Even then, federal law makes it clear that a jury verdict will only be overturned if “there is a clear showing of excessiveness or that the verdict was influenced by passion or prejudice. Foradori, 523 F.3d at 511. TCI fails to make that showing here, too. 38 anything, simply prohibits counsel from using “unsubstantiated anchors”

like “the cost of a fighter jet, the auction price of a coveted painting, or any

other expensive comparator” because those anchors “have nothing to do

with the emotional injuries suffered by the plaintiffs and cannot rationally

connect the extent of the injuries to the amount awarded.” Id. at 558. A per

diem argument that ties a value of noneconomic damages to the time in

which the plaintiff is believed to suffer those injuries bears a rational

relationship to the damage calculation. TCI’s claim that Gregory prohibits

such an argument is simply not accurate.

IV. “Cumulative error” does not warrant a new trial.

At the end of their brief, TCI pleads with this Court to grant them a

new trial because of “the cumulative effect of the errors discussed above.”

See Appt. Br. at 56-57. The cumulative error doctrine provides that the

combined effect of multiple errors can, in the aggregate, constitute reversible

error, even though each individual error, analyzed separately, was harmless.

See Pitman v. Lightfoot, 937 S.W.2d 496, 537 (Tex. App.—San Antonio 1996,

writ denied). But, this presumes that there were errors. As demonstrated

above, there were no errors during the trial of this case.

39 Moreover, if there were errors, TCI was required to show that, based

on the record as a whole, but for the alleged errors, the jury would have

rendered a verdict favorable to them. Id.; Arreola v. Union Pac. R.R., 657

S.W.3d 789, 825 (Tex. App.—El Paso 2022, no pet.). TCI has not made such

a showing, and cannot make such a showing, particularly when one

considers that TCI has not challenged the jury’s finding that Canales was

negligent and a proximate cause of the collision, that TCI is vicariously liable

for his conduct, or the damages awarded to Mr. Ramirez.

CONCLUSION & PRAYER

In the end, the trial court did nothing wrong, and the jury properly

assessed the evidence presented to it and rendered a just and accurate

verdict. No one questions the jury’s findings of negligence and proximate

cause as to Mr. Ramirez or Mr. Canales, and no one questions the value of

Mr. Ramirez’s damages assigned by the jury. Rather, only TCI—who

admitted to being responsible for Mr. Canales’s negligence—complains

about its own negligence.

But, that negligence was supported by the evidence and it was

appropriate to submit that negligence—which was not derivative of its

employee’s negligence—to the jury. TCI knew that left-hand turns were 40 significantly more dangerous and took it upon itself to determine the

appropriate route for its drivers to take. When TCI affirmatively chose the

more dangerous route—a route more dangerous by a factor of ten—it was

negligent and a proximate cause of the collision. The jury’s finding and

assessment of responsibility was therefore correct. The final judgment

should therefore be affirmed.

For these reasons, Appellee Brian Ramirez respectfully requests that

this Court affirm the Final Judgment in all respects and that he be granted

such other relief to which he may be justly and equitably entitled.

41 Respectfully submitted,

By: /s/Thad D. Spalding Thad Spalding State Bar No. 00791708 tspalding@dpslawgroup.com Lauren S. Harbour State Bar No. 24070649 sharbour@dpslawgroup.com DURHAM PITTARD & SPALDING, LLP P.O. Box 224626 Dallas, Texas 75222 (214) 946-8000 – Office (214) 946-8433 – Facsimile

and

Fidel Rodriguez, Jr. State Bar No. 17145500 fidel@fidrodlaw.com RODRIGUEZ TRIAL LAW 231 Cypress Street San Antonio, Texas 78212 (210) 777-5555 – Office (210) 224-0533 – Facsimile

Attorneys for Appellee, Brian Ramirez

42 CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Texas Rule of Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. This document also complies with the word-count limitations of Rule 9.4(i)(2)(D) because it contains 9,136 words, excluding any parts exempted by Rule 9.4(i)(1). /s/Thad D. Spalding Thad D. Spalding

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Appellees Brief has been forwarded to all counsel of record pursuant to the Texas Rules of Appellate Procedure on October 25, 2024.

David R. Rangel Jessica Z. Barger drangel@dtrglaw.com barger@wrightclosebarger.com NICONDRA CHARGOIS-ALLEN Heidi J. Gumienny nchargois@dtrglaw.com gumienny@wrightclosebarger.com DAVIDSON TROILO REAM & GARZA WRIGHT CLOSE & BARGER, LLP 601 N. Loop 410, Suite 100 One Riverway, Suite 2200 San Antonio, Texas 78216 Houston, Texas 77056 Counsel for Appellants

/s/Thad D. Spalding Thad D. Spalding

43 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Kelly Blackburn on behalf of Thad Spalding Bar No. 00791708 efile@dpslawgroup.com Envelope ID: 93604076 Filing Code Description: Brief Requesting Oral Argument Filing Description: APPELLEE'S BRIEF Status as of 10/28/2024 8:17 AM MST

Associated Case Party: Transportation Concepts, Inc.

Name BarNumber Email TimestampSubmitted Status

Heidi Gumienny 24036696 gumienny@wrightclosebarger.com 10/25/2024 4:10:54 PM SENT

Jessica Barger barger@wrightclosebarger.com 10/25/2024 4:10:54 PM SENT

Michael Adams-Hurta hurta@wrightclosebarger.com 10/25/2024 4:10:54 PM SENT

Associated Case Party: BrianRamirez

Thad Spalding 791708 tspalding@dpslawgroup.com 10/25/2024 4:10:54 PM SENT

Fidel Rodriguez 17145500 fidel@fidrodlaw.com 10/25/2024 4:10:54 PM SENT

Lauren Harbour 24070649 lharbour@dpslawgroup.com 10/25/2024 4:10:54 PM SENT

Case Contacts

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Tracy Stubblefield stubblefield@wrightclosebarger.com 10/25/2024 4:10:54 PM SENT

Rozalynn Ramirez rramirez@fidrodlaw.com 10/25/2024 4:10:54 PM SENT

Fidel Rodriguez, Jr. fidel@fidrodlaw.com 10/25/2024 4:10:54 PM SENT

Kelly Blackburn efile@dpslawgroup.com 10/25/2024 4:10:54 PM SENT