A median crossing fatality on an icy interstate a decade ago was the focus of the Texas Supreme Court Tuesday as it reviewed a $116 million trial court judgment that has drawn the ire of trucking and business interests.
The issues under scrutiny include sufficiency of the evidence, charge error and damages. The Texas Trucking Association has called it “a posterchild for the ever-increasing and over-expansive liability now confronting the trucking industry.” Amicus briefs from insurers, tort reform groups and business associations support the position of Werner Enterprises.
Werner and its driver, Shiraz Ali, asked justices to render a take-nothing judgment, arguing that the driver and trucking company owed no duty to the passengers riding in a pickup truck that had crossed the median into the path of the 18-wheeler.
Thomas C. Wright of Wright Close & Barger, who represents Werner and Ali, told justices that the Fourteenth Court of Appeals wrongly held Ali responsible and created a new duty for the trucking company “out of whole cloth.” He said the lower court “for the first time has held that a driver in his own lane under control of his vehicle is liable when somebody on the opposite side of an interstate highway loses control, spins out, crosses over a 30-foot median plus the shoulders and runs into the driver in his own lane with no time to react.”
Jennifer Blake, who was a passenger with her three children in an eastbound pickup truck driven by Trey Salinas, is arguing that Ali’s negligence proximately caused the accident that killed 7-year-old Zachery and left her 12-year-old daughter a quadriplegic.
The crash happened Dec. 30, 2014, on Interstate 20 near Odessa during a National Weather Service winter storm warning. Salinas lost control of his pickup, careened across a 42-foot-wide grass median and hit the 18-wheeler driven by Ali, which was traveling at about 50 miles per hour, according to the arguments.
The jury heard evidence about Ali’s inexperience, his low score on an evaluation by a Werner employee a few weeks before the crash and Ali’s training supervisor being asleep in the truck’s berth.
The jury also heard from a state trooper who ticketed a car for driving at an unsafe speed of 20 to 30 miles per hour on the same stretch of road after it crashed with another vehicle. Ali drove by that crash minutes before the crash with the Blake family happened.
Darrin M. Walker of Kingwood, who represents the Blakes, said experts for both sides agreed that if Ali had been going 15 miles per hour or slower he could have brought his rig to a stop before it collided with the pickup. He said the commercial driver license manual advises truck drivers to slow to a crawl on icy roads because passenger vehicles are more likely than large commercial trucks to lose control in those conditions.
“There may be some circumstances where a cross-median collision is not foreseeable, and a driver may not have to take any precautions against it. In this case the evidence was clear a cross-median collision was foreseeable,” Walker said.
Appellate specialist Jane Langdell Robinson flagged the case as one for litigators to watch this term because of its impact on damages in commercial motor vehicle cases.
“Texas Civil Justice League members have become alarmed at the increase of ‘nuclear verdicts’ in commercial motor vehicle cases in which the bulk of the damages are noneconomic in nature and the employer’s liability stems from derivative negligence theories with no firm basis in Texas jurisprudence,” said Robinson, a partner at AZA.
The case has an unusual procedural history. Blake sued Werner and Ali in Harris County, and the trial lasted for six weeks. The jury determined that Salinas was 16 percent responsible, Ali was 14 percent responsible, and Werner was 70 percent responsible. The jury’s $92 million verdict has grown with interest to well over $100 million.
The case languished at the Fourteenth Court for nearly five years. After a panel heard arguments but before it issued a decision, five justices voted to order en banc consideration.
The court split 5-4 in its May 2023 opinion. The five justices in the majority are Democrats who were first elected to the court in November 2018’s “blue wave” and all of whom lost their bids for reelection this year.
The Supreme Court justices focused most of their questions on whether the accident was foreseeable.
Justice Jeff Boyd asked Wright if driver Ali owed a legal duty of reasonable care to anybody. Yes, Wright said, but only to the people within his lanes of travel.
Justice Rebeca Aizpuru Huddle wanted to know how Wright’s argument would change if there was no median or a narrower median. “How do we craft a rule that covers more than this particular set of facts?” she asked.
Wright said Ali had the duty to act reasonably once he perceived the spin out, a duty which the court of appeals said he fulfilled by applying his brakes.
“If I thought driving down the highway somebody would come across and hit me, I might just stay home,” said Wright.
Walker said that the court should not adopt Werner’s position that no duty is owed to drivers on the other side of a divided highway because it is too inflexible to account for innumerable circumstances.
Wright asked the court to apply the “admission rule” that several courts of appeals in Texas as well as courts in about half of the states recognize. The rule states that when an employer admits an employee was acting in the course and scope of employment when an allegedly negligent act occurred, the party suing is barred from pursuing derivative theories of negligence against the employer.
Walker said it would be unfair to hide a company’s decision making from a jury “and then foist liability that would ordinarily fall on the employer onto the untrained employee.”
In his response petition, Walker said Werner failed to properly instruct Ali on slowing down on slick roads. Ali was still in the initial phase of Werner’s training program and had not completed the company’s winter-driving training module. He was accompanied by his training supervisor, who was in the truck’s sleeper.
Thomas R. Phillips, who gave rebuttal arguments for Werner, said none of the reported trial and appellate cross-median cases “have held the driver who has stayed in his or her correct lane liable to someone who has crossed the median unless that initial driver committed some negligence after the risk was perceived.”
Amicus briefs were filed or received from Schneider National Carriers, Acuity Insurance, Texas Civil Justice League, American Trucking Association, Texans for Lawsuit Reform, Chamber of Commerce of the United States, Texas Trucking Association and the Trucking Industry Defense Association, and Texas Association of Defense Counsel.
In his brief for the American Trucking Association, David E. Keltner of Kelly Hart & Hallman said: “At the accident scene, it was clear that Salina’s driving behavior in the inclement weather was at fault. But the plaintiffs claimed Werner owed them duties to stay off the road, choose another route, monitor the weather, and use another driver. Those claims would only work in an alternate universe — far away from the accident scene — and that alternate universe turned out to be a Harris County District Court.”
Justice Debra Lehrmann is not participating in the case, No. 23-0493.