Dennis Rayner and Joe Tex Xpress, Inc. v. Krista Dillon

ACCEPTED
06-15-00009-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
8/17/2015 4:47:18 PM
DEBBIE AUTREY
CLERK

NO. 06-15-00009-CV

FILED IN
IN THE COURT OF APPEALS 6th COURT OF APPEALS
SIXTH COURT OF APPEALS DISTRICT TEXARKANA, TEXAS
TEXARKANA, TEXAS 8/17/2015 4:47:18 PM
DEBBIE AUTREY
Clerk

DENNIS RAYNER AND JOE TEX XPRESS, INC.,
Appellants,
V.

KRISTA DILLON,
Appellee.

ON APPEAL FROM THE 62ND DISTRICT COURT, HOPKINS COUNTY, TEXAS
HONORABLE WILL BIARD PRESIDING
CAUSE NO. CV40921

APPELLANTS’ BRIEF

FEE, SMITH, SHARP & VITULLO, L.L.P. HOUSTON DUNN, PLLC
Bryan P. Reese Samuel V. Houston, III
State Bar No. 00789791 State Bar No. 24041135
Jennifer M. Lee 4040 Broadway, Suite 440
State Bar No. 24049084 San Antonio, Texas 78209
Three Galleria Tower (210) 775-0882 – Telephone
13155 Noel Road, Suite 1000 (210) 826-0075 – Fax
Dallas, Texas 75240 sam@hdappeals.com
(972) 934-9100 – Telephone
(972) 934-9200 – Fax
breese@feesmith.com
jlee@feesmith.com

ATTORNEYS FOR APPELLANTS
DENNIS RAYNER AND JOE TEX XPRESS, INC.
ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties to this appeal and the names and

addresses of those parties’ counsel:

APPELLANTS/DEFENDANTS APPELLATE COUNSEL
Dennis Rayner Samuel V. Houston, III
Joe Tex Xpress, Inc. HOUSTON DUNN, PLLC
4040 Broadway, Suite 440
San Antonio, Texas 78209

TRIAL/APPELLATE COUNSEL
Bryan P. Reese
Jennifer M. Lee
FEE, SMITH, SHARP & VITULLO, L.L.P.
Three Galleria Tower
13155 Noel Road, Suite 1000
Dallas, Texas 75240

APPELLEE/PLAINTIFF APPELLATE COUNSEL
Krista Dillon John Mercy
MERCY CARTER TIDWELL, L.L.P.
1724 Galleria Oaks Drive
Texarkana, Texas 75503

TRIAL/APPELLATE COUNSEL
Brent Goudarzi
GOUDARZI & YOUNG, L.L.P.
P.O. Drawer 910
Gilmer, Texas 75644
 TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ..................................................... i
TABLE OF CONTENTS ................................................................................. ii
TABLE OF AUTHORITIES .......................................................................... iv
STATEMENT OF THE CASE ....................................................................... vi
STATEMENT REGARDING ORAL ARGUMENT....................................... vii
ISSUE PRESENTED ................................................................................... vii
STATEMENT OF FACTS ............................................................................... 1
I. This Appeal Arises Out of an Accident Between Dennis
Rayner and Krista Dillon in Sulphur Springs. ............................ 1
II. Joe Tex Operates a Trucking Operation Out of Mount
Vernon; Dennis Rayner, an Experienced Commercial Truck
Driver, Was One of Its Drivers. .................................................. 2
III. Ms. Dillon Sues Joe Tex and Dennis; Dennis Accepts
Responsibility for the Accident; and a Judgment Is
Rendered in Ms. Dillon’s Favor. ................................................. 3
SUMMARY OF THE ARGUMENT................................................................ 5
ARGUMENT.................................................................................................. 6
I. A Heightened Evidentiary Standard Applies to Gross
Negligence That Is Reflected in the Standard of Review. ........... 6
A. Exemplary Damages Findings Must Be Supported By
Clear and Convincing Evidence......................................... 6
B. Gross Negligence Findings Are Subject to a Heightened
Standard of Review. .......................................................... 7
II. Legally Insufficient Evidence Supports the Gross Negligence
Findings; Evidence of Simple Negligence Is Not Enough. ......... 8
A. Dennis Rayner Was Not Operating His Truck in a Grossly
Negligent Manner on the Day of the Accident. ................. 8
1. Legally insufficient evidence supports the objective
element of gross negligence. .................................... 9

ii
 2. Legally insufficient evidence supports the subjective
element of gross negligence. ................................... 11
B. Joe Tex Was Not Grossly Negligent in Entrusting Dennis
with a Truck. .................................................................... 11
1. Legally insufficient evidence supports the
objective element of gross negligence. .................... 11
2. Legally insufficient evidence supports the
subjective element of gross negligence. ................. 13
C. Joe Tex’s and Dennis’s Purported “Bad Acts” Cannot
Support the Gross Negligence Findings Because They
Have No Causal Connection to the Harm Suffered by
Ms. Dillon. ....................................................................... 14
D. Log Book Errors Are No Evidence That Dennis and Joe
Tex Were Grossly Negligent in Causing the Accident
Underlying This Appeal. ..................................................15
1. The alleged violation of a federal regulation does
not establish that a defendant has been grossly
negligent. ................................................................ 17
2. A log book error does not prove that Dennis was
fatigued under any evidentiary standard. ............... 17
3. The standard of review requires the Court to
consider the evidence proving that Dennis was not
fatigued. ................................................................. 19
III. The Evidence is Factually Insufficient to Support the Gross
Negligence Findings Against Dennis and Joe Tex. ................... 19
IV. Conclusion and Prayer.............................................................. 20
CERTIFICATE OF COMPLIANCE .............................................................. 22
CERTIFICATE OF SERVICE....................................................................... 22
APPENDIX ....................................................................................................A

iii
 TABLE OF AUTHORITIES

Page
CASES
Barnes v. United Parcel Serv., Inc.,
395 S.W.3d 165 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) ........15
Bennett v. Reynolds, 315 S.W.3d 867 (Tex. 2010) .......................................15
Boerjan v. Rodriguez, 436 S.W.3d 307 (Tex. 2014) (per curiam) ....... 7, 9, 12
Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925 (Tex. 1993) .................... 17
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ............................ 8, 19
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue,
271 S.W.3d 238 (Tex. 2008) ...................................................................... 8
Dalworth Trucking Co. v. Bulen,
924 S.W.2d 728 (Tex. App.—Texarkana 1996, no pet.) ............................15
Diamond Shamrock Refining Co. v. Hall,
168 S.W.3d 164 (Tex. 2005) .............................................................. 7, 8, 15
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) .......................... 17
In re J.F.C., 96 S.W.3d 256, 265 (Tex. 2002) ............................................. 20
JSC Neftegas-Impex v. Citibank, N.A.,
365 S.W.3d 387 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) ....... 18
Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001) ................. 9
Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001) ............................................. 17
Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003) ............................ 17
McDorman ex rel. Connelly v. Texas-Cola Leasing Co.,
288 F. Supp. 2d 796 (N.D. Tex. 2003) ................................................ 13, 14
N. Am. Van Lines, Inc. v. Emmons,
50 S.W.3d 103 (Tex. App.—Beaumont 2001, pet. denied).............. 9, 10, 12
Perez v. Arredondo,
452 S.W.3d 847 (Tex. App.—San Antonio 2014, no pet.) ........................ 12

iv
Reynolds & Huff v. White,
378 S.W.2d 923 (Tex. Civ. App.—Tyler 1964, no writ) ............................. 11
Rivas v. City of Houston, 17 S.W.3d 23
(Tex. App.—Houston [14th Dist.] 2000, pet. denied) (op. on reh’g) ....... 18
Safeshred, Inc. v. Martinez, 365 S.W.3d 655 (Tex. 2012) ..................... 14, 15
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003)............ 14
Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607 (Tex. 2004) .................. 15, 18, 19
U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012) .......6, 7, 11, 14, 17
USA Truck, Inc. v. West,
189 S.W.3d 904 (Tex. App.—Texarkana 2006, pet. denied).................... 10
Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322 (Tex. 1993) ............. 12
Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex. 1998)............... 18

STATUTES
TEX. CIV. PRAC. & REM. CODE § 41.001 ........................................................... 7
TEX. CIV. PRAC. & REM. CODE § 41.003 ..........................................................15

REGULATIONS
49 C.F.R. § 395.3 .................................................................................... 15, 16
49 C.F.R. 395.8 ............................................................................................ 16

v
 STATEMENT OF THE CASE

Nature of the Case:

Krista Dillon sued Joe Tex Xpress, Inc. and its driver, Dennis Rayner,

seeking actual and exemplary damages for injuries sustained in an accident on

Interstate 30. CR 2901-07. After a multi-day trial, the jury found Dennis and

Joe Tex negligent and grossly negligent, and it awarded actual and exemplary

damages. CR 3006, 3020.

Trial Court:

The Honorable Will Biard, Judge of the 62nd District Court, Hopkins

County, Texas presided over the jury trial.

Trial Court Disposition:

After applying the statutory caps on exemplary damage awards, the trial

court rendered a judgment consistent with the jury’s verdict. CR 3031. The

compensatory damages were paid shortly after the judgment was entered.

vi
 STATEMENT REGARDING ORAL ARGUMENT

Given recent decisions from the Texas Supreme Court clarifying the

standard of review to be applied to gross negligence claims and the clear and

convincing evidentiary standard, oral argument could assist the Court in

resolving the appeal.

ISSUE PRESENTED
Appellants believe this case presents the following issue:

Legally and factually insufficient evidence supports the jury’s
gross negligence findings against Dennis Rayner and Joe Tex
Xpress, Inc.

vii
TO THE HONORABLE SIXTH COURT OF APPEALS:

Appellants Dennis Rayner and Joe Tex Xpress, Inc. respectfully present

this brief requesting that the Court reverse the trial court’s judgment finding

that Dennis and Joe Tex were grossly negligent and awarding exemplary

damages to appellee Krista Dillon.

STATEMENT OF FACTS

I. This Appeal Arises Out of an Accident Between Dennis Rayner
and Krista Dillon in Sulphur Springs.
The events leading up to the accident are largely undisputed. On Friday,

July 23, 2010, Ms. Dillon was returning home on Interstate 30 following a

shopping trip to Wal-Mart. 5 RR 106. Ms. Dillon was traveling in the right lane

and intended to leave the interstate at exit 127. 5 RR 108. At around 1:30 p.m.,

a commercial truck driven by Dennis Rayner moved into the right lane and hit

the driver side, rear portion of Ms. Dillon’s car. 5 RR 108, 283-84, 292. The

impact caused Ms. Dillon’s car to leave the interstate; it came to rest in the

grassy median between the interstate and the service road. 5 RR 109.

Dennis did not see Ms. Dillon’s car before he began moving into the right

lane. 5 RR 282, 284. He was in the left lane because he had passed a car that

had slowed to exit the interstate, and he needed to get back into the right lane

because a commercial truck should not stay in the left lane. 5 RR 282. He was

not aware of Ms. Dillon’s presence until he observed her car leaving the

interstate and going into the median. 5 RR 284. Having witnessed this, Dennis
pulled over because he did not know what had happened. 5 RR 285-86. The

truck did not sustain any damage following its contact with Ms. Dillon’s car. 5

RR 76.

The police and EMS responded at the accident scene. 5 RR 110. Ms.

Dillon did not request medical treatment at that time. 5 RR 111, 152. Her car

was towed away, and she left the scene with a friend who took her to the

wrecker yard so that she could get her belongings out of the car. 5 RR 1. The

friend then took Ms. Dillon home. 5 RR 111. Dennis and Ms. Dillon did not

communicate at the accident scene. 5 RR 152.

The responding police officers conducted an investigation at the scene.

Dennis was cited for changing lanes when unsafe. 9 RR PX:17; 5 RR 82.

Consistent with that citation, the responding officer completed an accident

report, concluding that Dennis caused the accident by making an improper

lane change. 5 RR 83; 9 RR PX:17. The officer did not find that driver fatigue

was a contributing factor to the accident. 5 RR 83; 9 RR PX:17; 17 RR DX:50.

Following the accident, Dennis took a drug test, which was negative for

drugs and alcohol. 2 RR 208; 5 RR 76-77.

II. Joe Tex Operates a Trucking Operation Out of Mount Vernon;
Dennis Rayner, an Experienced Commercial Truck Driver,
Was One of Its Drivers.
Joe Tex is a company based out of Mount Vernon. See 17 RR DX:17. It

began operating in June 2004. 3 RR 49. Dennis Rayner started driving for Joe

Tex in 2007. 5 RR 265.

2
 Dennis submitted an employment application in April 2007. 2 RR 192;

17 RR DX:7. At that time, Dennis had over 3 decades of experience operating a

commercial truck. 5 RR 263, 265; 2 RR 202. He held (and continues to

maintain) a commercial driver’s license as well as a Department of

Transportation medical card. 5 RR 266. As part of the hiring process, Dennis

successfully completed a road test with a Joe Tex employee. 2 RR 190-91; 17

RR DX:1. Dennis was also subjected to a pre-employment drug test, which he

passed. 2 RR 196.

Dennis voluntarily left Joe Tex in March 2011, citing a need to be closer

to Houston and his wife, who was suffering from health complications. 5 RR

266, 267; 16 RR PX:87.

During his nearly 4 years as a Joe Tex driver, he was involved in 3

accidents other than the one giving rise to this appeal. Of these four accidents,

however, fault was only assigned to him in the Sulphur Springs accident and

one occurring three years earlier in Greenwood, Louisiana. 16 RR PX:87. No

injuries were reported for any of the accidents. 16 RR PX:87. Injuries,

however, would ultimately be claimed by Ms. Dillon for the accident that

occurred in Sulphur Springs. CR 2906-07.

III. Ms. Dillon Sues Joe Tex and Dennis; Dennis Accepts
Responsibility for the Accident; and a Judgment Is Rendered
in Ms. Dillon’s Favor.
In March 2012, Ms. Dillon filed suit against Dennis and Joe Tex seeking

damages for injuries sustained in the Sulphur Springs accident. CR 24. Ms.

3
Dillon asserted a negligence claim against Dennis, and a claim for negligent

entrustment against Joe Tex. CR 26-27. In addition to seeking actual damages,

Ms. Dillon eventually amended her pleadings to include gross negligence

allegations against both Dennis and Joe Tex. CR 2905-06.1

A jury trial commenced in October 2014. Dennis accepted 100%

responsibility for the accident. CR 285-86. Consistent with Dennis’s position,

Joe Tex confirmed that it would accept responsibility for the accident. 2 RR

318; 5 RR 16.

The jury found Dennis and Joe Tex liable for Ms. Dillon’s injuries. CR

3009. The jury awarded $1,110,629.76 in actual damages for past and future

medical expenses, past and future physical pain and suffering, and future

physical impairment. CR 3011-13. The jury also found Dennis and Joe Tex

grossly negligent, assessing Dennis with $2,000.00 in exemplary damages and

Joe Tex with $3,000,000.00 in exemplary damages. CR 3014-15, 3022-23.

With the exception of the exemplary damage award against Joe Tex, a

final judgment was rendered on the jury’s verdict. CR 3031. After applying the

damage caps in Chapter 41 of the Texas Civil Practice and Remedies Code, the

trial court reduced the exemplary damages assessed against Joe Tex from

1
Ms. Dillon’s negligence and gross negligence claims against Joe Tex were based upon a
number of theories. CR 2904-06. But the only specific negligence theory submitted to the
jury was that Joe hired and continued to employ “an incompetent, unfit and/or reckless
driver.” CR 2905.

4
$3,000,000.00 to $1,679,295.52. CR 3032. The final judgment also assessed

prejudgment interest and costs against Dennis and Joe Tex. CR 3031-32.

Four days after the judgment was signed, Joe Tex tendered to Ms.

Dillon’s counsel payment for $1,216,609.06, the compensatory damages

awarded in the final judgment. CR 3037. In tendering the compensatory

damages, Dennis and Joe advised Ms. Dillon that they intended to appeal the

jury’s gross negligence findings and exemplary damage awards. CR 3037.

Dennis and Joe Tex then perfected this appeal.

SUMMARY OF THE ARGUMENT
Gross negligence requires the plaintiff to prove something more than

simple negligence. But the record in this case reflects, at most, only simple

negligence flowing from Dennis’s lane change. As a result, the gross negligence

findings must be reversed.

The record does not present clear and convincing evidence of gross

negligence. The accident itself is rather unremarkable. Dennis made a lane

change without knowledge that Ms. Dillon was in the right lane and in his

blind spot. There is nothing in the record to suggest that Dennis was grossly

negligent in making this lane change. As for Joe Tex, the record does not

demonstrate that Dennis was an incompetent or reckless driver, which is what

Ms. Dillon was required to prove by clear and convincing evidence in order to

hold Joe Tex liable for grossly negligent entrustment.

5
 A successful plaintiff must point to aggravating circumstances or other

bad acts to prove gross negligence. But a defendant cannot be punished for

purported “bad acts” that have no connection to the plaintiff’s harm. Ms.

Dillion implicitly acknowledged that she had to prove something more than

negligence. To that end, Ms. Dillon suggested through the entire trial that

driver fatigue must have caused the accident because Dennis’s log books

contained errors. The record, however, is clear: fatigue had nothing to do with

the accident. Thus, any evidence of Dennis’s or Joe Tex’s other “bad acts”

cannot support the judgment because they have no causal relationship to the

accident.

Ms. Dillon failed to meet her burden to prove—by clear and convincing

evidence—that Dennis and Joe Tex were grossly negligent. Accordingly, the

judgment must be reversed with respect to gross negligence and exemplary

damages.

ARGUMENT

I. A Heightened Evidentiary Standard Applies to Gross
Negligence That Is Reflected in the Standard of Review.

A. Exemplary Damages Findings Must Be Supported By
Clear and Convincing Evidence.
Exemplary damages are “‘exceptional’” and may only be awarded in

limited situations. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 140 (Tex.

2012). Gross negligence requires proof to support both objective and

subjective elements. Id. at 137; see also TEX. CIV. PRAC. & REM. CODE §

6
41.001(11). The evidentiary standard is clear and convincing. Diamond

Shamrock Refining Co. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005). “‘Clear and

convincing’ means the measure or degree of proof that will produce in the

mind of the trier of fact a firm belief or conviction as to the truth of the

allegations sought to be established.” TEX. CIV. PRAC. & REM. CODE § 41.001(2).

The objective element requires the plaintiff to prove that “when viewed

objectively from the defendant’s standpoint at the time of the event, the act or

omission involved an extreme degree of risk, considering the probability and

magnitude of the potential harm to others.” U-Haul Int’l, Inc., 380 S.W.3d at

137. “An extreme risk is ‘not a remote possibility of injury or even a high

probability of minor harm, but rather the likelihood of serious injury to the

plaintiff.’” Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014) (per

curiam) (citation omitted).

The subjective element requires proof that “the defendant had actual,

subjective awareness of the risk involved, but nevertheless proceeded with

conscious indifference to the rights, safety, or welfare of others.” U-Haul Int’l,

Inc., 380 S.W.3d at 137. “‘[A]ctual awareness means the defendant knew about

the peril, but its acts or omissions demonstrated that it did not care.’” Boerjan,

436 S.W.3d at 311 (citation omitted).

B. Gross Negligence Findings Are Subject to a Heightened
Standard of Review.

7
 Because gross negligence has a heightened burden of proof, the Court

applies a heightened standard of review. See Columbia Med. Ctr. of Las

Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008); see also City of

Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005). In reviewing the legal

sufficiency of the evidence supporting the gross negligence finding, the court

of appeals looks at all of the evidence in the record, not just the evidence

supporting the finding. Diamond Shamrock Refining Co., 168 S.W.3d at 170.

While the evidence must be viewed in the light most favorable to the findings,

the court must consider undisputed evidence that does not support the

findings. Id. Ultimately, a challenge to the legal sufficiency of the evidence

must be sustained if the appellate court determines no reasonable jury “‘could

form a firm belief or conviction that the matter that must be proven is true.’”

Id. (citation omitted).

II. Legally Insufficient Evidence Supports the Gross Negligence
Findings; Evidence of Simple Negligence Is Not Enough.

A. Dennis Rayner Was Not Operating His Truck in a Grossly
Negligent Manner on the Day of the Accident.
The rather unremarkable facts surrounding the accident do not support

the jury’s gross negligence finding. Ms. Dillon’s trial presentation focused little

upon the accident itself. The only direct evidence regarding the accident is

found in Dennis’s trial testimony, Ms. Dillion’s trial testimony, and the

investigating officer’s report. The accident only occurred because Dennis did

8
not realize that Ms. Dillon was in his blind spot before he changed lanes. 2 RR

210-11.
1. Legally insufficient evidence supports the objective
element of gross negligence.
The evidence does not prove that Dennis’s driving on the day of the

accident created the likelihood of serious injury to Ms. Dillon. See Boerjan,

436 S.W.3d at 311. The mere fact that Dennis did not observe Ms. Dillon

before moving into the right lane is not conduct that creates an extreme risk

necessary to prove gross negligence. See N. Am. Van Lines, Inc. v. Emmons,

50 S.W.3d 103, 128 (Tex. App.—Beaumont 2001, pet. denied). While some

may argue that Dennis was careless because he did not see Ms. Dillon before

moving into the right lane, “behavior that is merely thoughtless or careless is

not malicious or grossly negligent.” Id.; see also Lee Lewis Constr., Inc. v.

Harrison, 70 S.W.3d 778 (Tex. 2001) (“Some evidence of simple negligence is

not evidence of gross negligence.”).

Aggravating circumstances are required to transform simple negligence

into gross negligence. The objective element is not satisfied simply because the

activity at issue can be dangerous. See id. at 786. In concluding that a driver’s

conduct did not meet the objective element, the court of appeals in Emmons

explained that the record showed the driver “was not driving appreciably

faster than other vehicles on the highway, and a witness noticed nothing

erratic or unusual about his driving before the collision.” Emmons, 50 S.W.3d

at 128. The evidence only showed that the driver failed to see that the

9
plaintiff’s vehicle had come to a stop. Id. Thus, there was legally insufficient

evidence to show that the driver’s conduct created an extreme risk. Id.

In stark contrast to Emmons and the evidence in this appeal, this Court

discussed a number of aggravating circumstances that led it to affirm a gross

negligence finding against a driver in USA Truck, Inc. v. West, 189 S.W.3d 904

(Tex. App.—Texarkana 2006, pet. denied). In West, a truck driver was

attempting to back his loaded eighteen-wheel tractor-trailer into his driveway.

Id. at 906. In order to do this, however, the driver had to back across two lanes

of traffic on a four-lane urban highway. Id. at 909. The plaintiff apparently did

not realize the lanes were obstructed, and he collided with the driver’s trailer.

Id. at 906.

In finding the evidence sufficient to show an extreme risk, the Court

observed that the driver chose to make this maneuver on “a dark and

moonless night,” sometime after midnight. Id. at 908. According to an expert

witness, the maneuver would take 30 to 40 seconds to complete. Id. But a

driver such as the plaintiff only had 20 seconds of visibility given a curve in the

road and other visual obstructions. Id. Further, the driver made the decision

to obstruct the road after having driven 14 hours without taking the breaks

required by federal regulations. Id.

The evidence in the record does not prove that Dennis’s driving created

an extreme risk. Indeed, the mere fact that an accident occurred “is not of

itself evidence of negligence.” Reynolds & Huff v. White, 378 S.W.2d 923, 929

10
(Tex. Civ. App.—Tyler 1964, no writ). There are no aggravating circumstances

capable of transforming purported negligent acts into grossly negligent acts.

The accident only occurred because Dennis did not see Ms. Dillon prior to

making the lane change. 5 RR 283-85.

2. Legally insufficient evidence supports the subjective
element of gross negligence.
Ms. Dillon did not prove that Dennis had actual, subjective knowledge of

the extreme risk posed by his driving, but he nevertheless decided to drive on

the day of the accident in conscious disregard of this knowledge. See U-Haul

Int’l, Inc., 380 S.W.3d at 137, 139. There is no evidence that Dennis’s driving

posed an extreme risk. But even assuming that it did, there is no evidence that

Dennis had knowledge of the extreme risk and was consciously indifferent to

it. See id.

Dennis had a full night’s sleep the night before the accident. 5 RR 289,

303. As for the day of the accident, he had been driving only 2 to 3 hours by

the time the accident occurred. 5 RR 281, 292. The accident occurred only

when Dennis sought to get back into the right lane after passing a car that was

exiting the interstate. 5 RR 282, 288. Dennis simply did not see Ms. Dillon’s

vehicle when he made the lane change. 5 RR 283-84.

B. Joe Tex Was Not Grossly Negligent in Entrusting Dennis
with a Truck.

1. Legally insufficient evidence supports the objective
element of gross negligence.

11
 There is not an extreme risk of serious harm simply because Joe Tex

entrusted a commercial truck to Dennis. See Wal-Mart Stores, Inc. v.

Alexander, 868 S.W.2d 322, 327 (Tex. 1993). The mere possibility of a serious

injury resulting from an accident is not enough to support a gross negligence

finding. See id.; Boerjan, 436 S.W.3d at 312. Further, a defendant is not

grossly negligent simply because there is the mere possibility that its driver

might be in an accident. See Emmons, 50 S.W.3d at 129. Rather, as is made

clear by case law, gross negligence requires egregious facts. See Perez v.

Arredondo, 452 S.W.3d 847, 857 (Tex. App.—San Antonio 2014, no pet.). The

evidence in this case falls short.

The record does not demonstrate that a trucking company in Joe Tex’s

position would have created an extreme risk by entrusting Dennis with a

commercial truck. When he was hired, Dennis was a licensed commercial

truck driver with over 30 years of experience. 5 RR 263. He successfully

passed a pre-employment road test and drug test, and he continues to

maintain a valid commercial driver’s license. 5 RR 266, 269.

While he was not a perfect driver while employed at Joe Tex, the record

does not show Dennis to be an incompetent or reckless driver.2 He was

involved in 4 accidents in the nearly 4 years that he worked at Joe Tex,

2
The jury charge defined negligence by entrusting a vehicle to a driver who was “unlicensed
or incompetent or reckless.” CR 3008. The evidence shows that at all relevant times Dennis
was a licensed driver. See 5 RR 266; 17 RR DX:7. Thus, the analysis focuses upon whether
Dennis was incompetent or reckless.

12
including the accident in Sulphur Springs giving rise to this appeal. 16 RR

PX:87. But other than the accident in Sulphur Springs, none of the other

accidents involved injuries. 16 RR PX:87. Further, fault was attributed to Joe

Tex in only 2 of the 4 accidents. 16 RR PX:87.

A plaintiff cannot sustain a gross negligence finding simply because the

defendant’s driver was involved in an accident. See McDorman ex rel.

Connelly v. Texas-Cola Leasing Co., 288 F. Supp. 2d 796, 809 (N.D. Tex.

2003). Given the state of the record, the evidence is insufficient to show that

entrusting a truck to Dennis created the likelihood of serious injury to Ms.

Dillon.

2. Legally insufficient evidence supports the subjective
element of gross negligence.
The record does not show that Joe Tex actually knew that Dennis was an

incompetent or reckless driver, but it acted in a way that demonstrated it did

not care about the consequences that would result from his driving. As has

been demonstrated, nothing in the record indicates that Dennis was an

incompetent or reckless driver. The mere fact that a driver had been in prior

accidents is not enough to demonstrate gross negligence as a matter of law.

See Perez, 452 S.W.3d at 854. The record certainly does not present the sort of

egregious facts that show conscious indifference on the part of the defendant.

“[A] party cannot be liable for gross negligence when it actually and

subjectively believes that circumstances pose no risk to the injured party, even

13
if they are wrong.” U-Haul Int’l, Inc., 380 S.W.3d at 141. Joe Tex

representatives testified that Dennis came to Joe Tex with decades of

experience and that they believed he was a competent, safe driver. 2 RR 202; 5

RR 27, 88. This testimony included that of Craig Skidmore, a person with over

30 years’ experience in trucking and the former owner of a trucking company.

5 RR 64. Without any evidence to show that Joe Tex knew that allowing

Dennis to drive a truck created an extreme risk of an accident or that it did not

care that other drivers’ safety was compromised by Dennis’s driving, Joe Tex’s

challenge to the jury’s findings must be sustained. See McDorman ex rel.

Connelly, 288 F. Supp. 2d at 809-10 (finding no evidence to support a gross

negligence claim based upon negligent entrustment).

C. Joe Tex’s and Dennis’s Purported “Bad Acts” Cannot
Support the Gross Negligence Findings Because They
Have No Causal Connection to the Harm Suffered by Ms.
Dillon.
“A defendant should be punished for the conduct that harmed the

plaintiff, not for being an unsavory individual or business.” State Farm Mut.

Auto. Ins. Co. v. Campbell, 538 U.S. 408, 423 (2003). This is precisely why the

conduct underlying the plaintiff’s claim for gross negligence “must have a

‘nexus to the specific harm suffered by the plaintiff’ in that case.” Safeshred,

Inc. v. Martinez, 365 S.W.3d 655, 663 (Tex. 2012) (citation omitted). To

prevail on her claim, the plaintiff must prove the defendant’s grossly negligent

conduct proximately caused her injury. See Barnes v. United Parcel Serv.,

14
Inc., 395 S.W.3d 165, 176 (Tex. App.—Houston [1st Dist.] 2012, pet. denied);

see also TEX. CIV. PRAC. & REM. CODE § 41.003(a)(3). Thus, conduct that did

not cause the plaintiff’s harm cannot support a gross negligence finding. See

Safeshred, Inc., 365 S.W.3d at 663; see also Bennett v. Reynolds, 315 S.W.3d

867, 874-75 (Tex. 2010); Dalworth Trucking Co. v. Bulen, 924 S.W.2d 728,

733 (Tex. App.—Texarkana 1996, no pet.). 3

D. Log Book Errors Are No Evidence That Dennis and Joe
Tex Were Grossly Negligent in Causing the Accident
Underlying This Appeal.
Simple negligence by a defendant—standing alone—is not sufficient to

establish that the defendant was grossly negligent. Diamond Shamrock

Refining Co., 168 S.W.3d at 171-72. Because something more is required, Ms.

Dillon’s theory at trial was that Dennis was grossly negligent because he was

fatigued on the day of the accident. See CR 2905; 5 RR 206. As for Joe Tex,

Ms. Dillon’s theory was that Joe Tex was grossly negligent because it entrusted

a truck to an incompetent or reckless driver who regularly drove while

fatigued. See 5 RR 31.

The Federal Motor Carrier Safety Administration has promulgated

regulations for commercial truck drivers. See 49 C.F.R. 395.3. Among other

3
At the time the Court issued its opinion in Dalworth, gross negligence did not have to be
proved by clear and convincing evidence, and the Texas Supreme Court had not yet held
that a heightened standard of review applies when a gross negligence finding is challenged
on appeal. See 924 S.W.2d at 731 (noting that the “traditional no evidence standard applies
to gross negligence findings”). Thus, because a lower evidentiary standard was applied in
Dalworth, the Court’s sufficiency analysis does not apply in this appeal. See Sw. Bell Tel.
Co. v. Garza, 164 S.W.3d 607, 621 (Tex. 2004).

15
restrictions, the regulations limit the number of hours that a driver may

operate a commercial truck. See 49 C.F.R. 395.3. In general, a driver is

permitted to work for 14 hours a day, but he can only drive for 11 of those 14

hours. 49 C.F.R. § 395.3; 5 RR 207.4 In accordance with those restrictions, the

federal regulations require truck drivers to maintain a driver log. 49 C.F.R.

395.8.

Because there was no direct evidence that Dennis was fatigued on the

day of the accident or that fatigue played any role in the accident, Ms. Dillon

assumed that Dennis was fatigued because there were errors in his log books.

See, e.g., 2 RR 218, 233. In her opinion, the errors were not clerical errors.

Instead, these “errors” were intentional misrepresentations by Dennis to hide

the fact that he had exceeded the hours-of-service and was fatigued. See, e.g., 5

RR 46, 56. To prove this theory, Ms. Dillon’s counsel spent a significant

amount of time during trial examining witnesses about Dennis’s log books in

an effort to identify log book errors, even when the particular log book entries

had no connection, temporal or otherwise, to the July 23, 2010 accident. See,

e.g., 2 RR 163-64.

Ms. Dillon’s fatigued-driver theory fails for the following reasons.

4
In addition to the 14-hour period discussed above, there are restrictions upon the number
of consecutive days that a driver may operate a truck. See 49 C.F.R. § 395.3(b). But the
Court need not consider these restrictions given that there is no evidence that log books and
driver fatigue have any relationship to the accident underlying this appeal.

16
 1. The alleged violation of a federal regulation does not
establish that a defendant has been grossly negligent.
The “mere existence of federal regulations does not establish the

standard of care or establish gross negligence per se.” U-Haul Int’l, Inc., 380

S.W.3d at 139. The fact that a defendant may not have complied with a federal

regulation does not mean that he has been grossly negligent. Id. Thus,

Dennis’s alleged failure to comply with the Federal Motor Carrier Safety

Administration regulations does not establish that he or Joe Tex was grossly

negligent. See id.

2. A log book error does not prove that Dennis was fatigued
under any evidentiary standard.
A jury is not permitted to infer a fact from circumstantial evidence when

the inference is based on pure speculation. See Ford Motor Co. v. Ridgway,

135 S.W.3d 598, 601 (Tex. 2004); Browning-Ferris, Inc. v. Reyna, 865 S.W.2d

925, 928 (Tex. 1993) (“[W]hile circumstantial evidence may be used to

establish any material fact, we are not empowered to convert mere suspicion

or surmise into some evidence.”). Further, “a jury may not reasonably infer an

ultimate fact from meager circumstantial evidence ‘which could give rise to

any number of inferences, none more probable than another.’” Lozano v.

Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (describing the equal inference rule)

(citation omitted). Finally, a jury cannot find a fact that requires a stacking of

inferences. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003).

17
 The jury could not conclude that Dennis was fatigued on the day of the

accident simply because there were errors in his log book. To reach that

conclusion, the jury would first have to infer that Dennis intentionally

recorded false information because he was trying to hide the fact that he

violated the hours-of-service regulations. But that inference is equally

consistent with an inference that Dennis made simple mistakes in the logs and

was not actually trying to hide anything. 5 RR 36 (explaining that errors in a

log could be “paper work issues”), 294 (describing log book errors as

mistakes); see also Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936-

37 (Tex. 1998); Rivas v. City of Houston, 17 S.W.3d 23, 28 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied) (op. on reh’g).

Further, even if the jury could infer that Dennis was attempting to hide

hours-of-service violations, the jury would then have to infer that a violation

meant that Dennis was actually fatigued. The jury, however, could not reach

this conclusion because it requires a stacking of inferences. See Marathon

Corp., 106 S.W.3d at 728.

The foregoing establishes that there is no evidence of fatigue under the

preponderance-of-the-evidence standard. Given the heightened evidentiary

standard applied to gross negligence claims, it necessarily follows that the

evidence falls short under the clear and convincing standard. See Sw. Bell Tel.

Co. v. Garza, 164 S.W.3d 607, 621 (Tex. 2004). 5

5
The distinction between the preponderance of the evidence and clear and convincing

18
 3. The standard of review requires the Court to consider
the evidence proving that Dennis was not fatigued.
The standard of review demands that the Court consider all of the

evidence in the record; it is not required to disregard undisputed facts that do

not support the jury’s finding. City of Keller, 168 S.W.3d at 817; Sw. Bell Tel.

Co., 164 S.W.3d at 627. With the exception of the impermissible inferences

proposed by Ms. Dillon, the remainder of the uncontroverted evidence

affirmatively demonstrates that fatigue had nothing to do with the accident.

• The responding officer did not identify fatigue as a cause of the accident
and did not otherwise note that Dennis was fatigued. 5 RR 82-83; 9 RR
PX:17; 17 RR DX:50.

• Craig Skidmore talked with Dennis right after the accident and saw him
at the Mount Vernon office shortly after the accident. 5 RR 85-87. It was
clear to him that Dennis was not tired. 5 RR 86-87, 102-03.

• Dennis had only been driving for 2 to 3 hours on the day of the accident.
5 RR 281, 292, 297; see also 5 RR 289.

• Dennis denied that he was fatigued. 5 RR 227, 281.
Based upon the undisputed evidence in the record, no reasonable jury could

form a firm belief or conviction that fatigue had anything to do with the

accident.

III. The Evidence is Factually Insufficient to Support the Gross
Negligence Findings Against Dennis and Joe Tex.

standards is important. Evidence can be sufficient to support liability on a claim under the
lower standard but be insufficient under a clear and convincing standard. E.g., JSC
Neftegas-Impex v. Citibank, N.A., 365 S.W.3d 387, 423 (Tex. App.—Houston [1st Dist.]
2011, pet. denied) (finding evidence sufficient to prove fraud but insufficient to permit
award of exemplary damages).

19
 Where the factual sufficiency of the evidence is challenged on appeal, the

appellate court “must give due consideration to evidence that the factfinder

could reasonably have found to be clear and convincing.” In re J.F.C., 96

S.W.3d 256, 266 (Tex. 2002). The primary inquiry is “‘whether the evidence is

such that a factfinder could reasonably form a firm belief or conviction about

the truth of the’” plaintiff’s allegations. Id. (citation omitted). Where there is

disputed evidence, the appellate court “should consider whether disputed

evidence is such that a reasonable factfinder could not have resolved that

disputed evidence in favor of its finding.” Id. The factually sufficiency

challenge must be sustained “[i]f, in light of the entire record, the disputed

evidence that a reasonable factfinder could not have credited in favor of the

finding is so significant that a factfinder could not reasonably have formed a

firm belief or conviction, then the evidence is factually insufficient.” Id.

For the same reasons that the evidence is legally insufficient to support

the gross negligence findings against Dennis and Joe Tex, the evidence is also

factually insufficient to support those gross negligence findings.

IV. Conclusion and Prayer.

The evidence is legally and factually insufficient to support the gross

negligence findings against Dennis and Joe Tex. At most, the accident giving

rise to this appeal involves only simple negligence. Neither Joe Tex nor Dennis

was grossly negligent. Accordingly, the judgment must be reversed.

20
 WHEREFORE, PREMISES CONSIDERED, Appellants Dennis Rayner

and Joe Tex Xpress, Inc. respectfully pray that the Court reverse the trial

court’s judgment ordering the award of exemplary damages and grant other

and further relief to which they may be justly and equitably entitled.

Respectfully submitted,

/s/ Samuel V. Houston, III
SAMUEL V. HOUSTON, III
State Bar No. 24041135
HOUSTON DUNN, PLLC
4040 Broadway, Suite 440
San Antonio, Texas 78209
Telephone: (210) 775-0882
Fax: (210) 826-0075
sam@hdappeals.com
Bryan P. Reese
State Bar No. 00789791
Jennifer M. Lee
State Bar No. 24049084
FEE, SMITH, SHARP & VITULLO, L.L.P.
Three Galleria Tower
13155 Noel Road, Suite 1000
Dallas, Texas 75240
Telephone: (972) 934-9100
Fax: (972) 934-9200
breese@feesmith.com
jlee@feesmith.com
ATTORNEYS FOR APPELLANTS

21
 CERTIFICATE OF COMPLIANCE

In accordance with Texas Rule of Appellate Procedure 9.4, the
undersigned certifies that the foregoing computer-generated brief contains 5,182
words.

/s/ Samuel V. Houston, III
SAMUEL V. HOUSTON, III

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing document
has been served in accordance with the Texas Rules of Appellate Procedure on
the 17th day of August, 2015, to the following:

John Mercy Via email/eservice
MERCY CARTER TIDWELL, L.L.P.
1724 Galleria Oaks Drive
Texarkana, Texas 75503
jmercy@texarkanalawyers.com

Brent Goudarzi Via email/eservice
GOUDARZI & YOUNG, L.L.P.
P.O. Drawer 910
Gilmer, Texas 75644
brent@goudarzi-young.com

/s/ Samuel V. Houston, III
SAMUEL V. HOUSTON, III

22
 APPENDIX
A. Final Judgment

B. Jury Charge (First Phase of Trial)
C. Jury Charge (Second Phase of Trial)

A
Appendix A
Appendix B
KRIST A DILLON §
§
v. §
§
DENNIS RAYNER AND §
JOE TEX XPRESS, INC. § 62ND JUDICIAL DISTRICT

CHARGE OF THE COURT

LADIES AND GENTLEMEN OF THE JURY:

After the closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.

Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or conduct
any research. Do not look up any words in dictionaries or on the Internet. Do not post information
about the case on the Internet. Do not share any special knowledge or experiences with the other
jurors. Do not use your phone or any other electronic device during your de liberations for any reason.
l will give you a number where others may contact you in case of an emergency.

Any notes you have taken are for your own personal use. You may take your notes back into
the jury room and consult them during deliberations, but do not show or read your notes to your
fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on
your independent recollection of the evidence and not be influenced by the fact that another juror has
or has not taken notes.

You must leave your notes with the bailiff when you are not deliberating. The bailiff will
give your notes to me promptly after collecting them from you. I will make sure your notes arc kept
in a safe, secure location and not disclosed to anyone. After you complete your deliberations, the
bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly
destroy your notes so that nobody can read what you wrote.

Here are the instructions for answering the questions.

1. Do not let bias, prejudice, or sympathy play any part in your decision.

2. Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was not

Charge of the Court Page I

3006
 admitted in the courtroom.

3. You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters of
law, you must follow all of my instructions.

4. Ifmy instructions use a word in a way that is different from its ordinary meaning, use
the meaning I give you, which will be a proper legal definition.

5. All the questions and answers are important. No one should say that any question or
answer is not important.

6. Answer "yes" or "no" to all questions unless you are told otherwise. A "yes" answer
must be based on a preponderance of the evidence unless you are told otherwise.
Whenever a question requires an answer other than "yes" or "no," your answer must
be based on a preponderance of the evidence unless you are told otherwise.

The term "preponderance of the evidence" means the greater weight of credible
evidence presented in this case. If you do not find that a preponderance of the
evidence supports a "yes" answer, then answer "no." A preponderance of the
evidence is not measured by the number of witnesses or by the number of documents
admitted in evidence. For a fact to be proved by a preponderance of the evidence,
you must find that the fact is more likely true than not true.

7. Do not decide who you think should win before you answer the questions and then
just answer the questions to match your decision. Answer each question carefully
without considering who will win. Do not discuss or consider the effect your
answers will have.

8. Do not answer questions by drawing straws or by any method of chance.

9. Some questions might ask you for a dollar amount. Do not agree in advance to
decide on a dollar amount by adding up each juror's amount and then figuring the
average.

I 0. Do not trade your answers. For example, do not say, "I will answer this question
your way if you answer another question my way."

11. Unless otherwise instructed, the answers to the questions must be based on the
decision of at least I 0 of the 12 jurors. The same I 0 jurors must agree on every
answer. Do not agree to be bound by a vote of anything less than I 0 jurors, even if it
would be a majority.

Charge of the Court Page 2

3007
 As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would waste
your time and the parties' money, and would require the taxpayers of this county to pay for another
trial. If a juror breaks any of these rules, tell that person to stop and report it to me immediately.

DEFINITIONS

"Proximate cause" means that cause which, in a natural and continuous sequence, unbroken
by any new and independent cause, produces an event, and without which cause such event would
not have occurred. In order to be a proximate cause, the act or omission complained of must be such
that a person using ordinary care would have foreseen that the event, or some similar event, might
reasonably result therefrom. There may be more than one proximate cause of an event.

"Negligence" means the failure to use ordinary care, that is, failing to do that which a person
or company of ordinary prudence would have done under the same or similar circumstances or doing
that which a person of ordinary prudence would not have done under the same or similar
circumstances. As to Joe Tex Xpress, Inc., "negligence" may also mean entrusting a vehicle to an
unlicensed, incompetent and/or reckless driver if Joe Tex Xpress, Inc. knew or should have known
that the driver was unlicensed or incompetent or reckless.

"Ordinary care" means that degree of care that would be used by a person or company of
ordinary prudence under the same or similar circumstances.

Charge of the Court Page 3

3008
 QUESTION NO. 1

Did the negligence, if any, of those named below proximately cause the occurrence in question?

Answer "Yes" or "No" for each of the following:

a. Krista Dillon No
b. Dennis Rayner

c. Joe Tex Xprcss, Inc.

Charge of the Court Page4

3009
Answer Question No. 2 only if you answered "Yes" to Question No. I as to more than one of the
persons or entities named below. Otherwise, do not answer Question No. 2.

QUESTION NO. 2

What percentage of the negligence that caused the occurrence do you find to be attributable to
each of those listed below and found by you, in your answer to Question No. I, to have been
negligent?

Assign percentages of responsibility only to those you found caused or contributed to cause the
occurrence. The percentages you find must total I 00 percent. The percentages must be
expressed in whole numbers. The percentage of responsibility attributable to any one is not
necessarily measured by the number of acts or omissions found. The percentage attributable to
any one need not be the same percentage attributed to that one in answering another question.

a. Krista Dillon B %

b. Dennis Rayner 1~J2 %

c. Joe Tex Xpress, Inc. ~lf_Q_%
Total 100 %

Charge of the Court Page 5

3010
 Answer Question No. 3 if you answered "Yes" for Dennis Rayner or Joe Tex Xpress, Inc.
to Question No. 1 and answered:

I. "No" for Krista Dillon to Question No. I, or
2. 50 percent or less for Krista Dillon to Question No. 2.

Otherwise, do not answer Question No. 3.

QUESTION NO. 3

What sum of money, if paid now in cash, would fairly and reasonably compensate Krista
Dillon for her injuries, if any, that resulted from the occurrence in question?

Consider the elements of damages listed below and none other. Consider each element
separately. Do not award any sum of money on any element if you have otherwise, under some other
element, awarded a sum of money for the same loss. That is, do not compensate twice for the same
loss, if any. Do not include interest on any amount of damages you may find.

Do not include any amount for any condition not resulting from the occurrence in question.

Do not include any amount for any condition existing before the occurrence in question,
except to the extent, if any, that such other condition was aggravated by any injuries that resulted
from the occurrence in question.

Do not include any amount for any condition resulting from the failure, if any, of Krista
Dillon to have acted as a person of ordinary prudence would have done under the same or similar
circumstances in caring for and treating ~injuries, if any, that resulted from the occurrence in
.
question.
f...c.r .....,,
·,..

Answer separately, in dollars and cents, for damages, if any.

A. Medical Expenses

Answer in dollars and cents for damages, if any, that

(a) Were sustained in the past:

ANSWER:

(b) In reasonable probability will he sustained in the future:

ANSWER: $ \\~COO. 00
J

Charge of the Court Page 6

3011
 B. Physical Pain and Suffering

Answer in dollars and cents for damages, if any, that

(a) Were sustained in the past:

ANSWER: $ \ D'd) (')()Q' DO
(b) In reasonable probability will be sustained in the future:

ANSWER: $ 1-foO I Ot) o, oo
~.

C. Mental Anguish

Answer in dollars and cents for damages, if any, that

(a) Were sustained in the past:

ANSWER: $ _ _ __,,,e/,,_,,._
_ __

(b) In reasonable probability will be sustained in the future:

ANSWER: $_~g __
D. Physical Impairment

Answer in dollars and cents for damages, if any, that

(a) Were sustained in the past:

ANSWER: $-~~i?f'=-------
(b) In reasonable probability will be sustained in the future:

ANS wER:
1
$ _ _ _--1-'--'o=-.-,....o-""o'-"o:_:.:____
)
E. Disfigurement

Answer in dollars and cents for damages, if any, that

(a) Were sustained in the past:

ANSWER: $ , W"
Charge of the Court Page 7

3012
 (b) In reasonable probability will be sustained in the future:

ANSWER: $ ,£

Charge of the Court Page 8

3013
 Answer Question No. 4 only if you unanimously answered "Yes" to Question No. 1 regarding
Dennis Rayner. Otherwise, do not answer Question No. 4.

You are instructed that, in order to answer "Y cs" to the following question, your answer must
be unanimous. You may answer "No" to the following question only upon a vote of ten or more
.1urors. Otherwise, you must not answer that part of the following question.

QUESTION NO. 4:

Do you find by clear and convincing evidence that the harm to Krista Dillon resulted from
gross negligence attributable to Dennis Rayner?

"Clear and convincing evidence" means the measure or degree of proof that produces a firm
belief or conviction of the truth of the allegations sought to be established.

"Gross negligence" means an act or omission by a defendant:

a. which, when viewed objectively from the standpoint of the defendant at the time of its
occurrence involves an extreme degree of risk, considering the probability and magnitude of the
potential harm to others; and

b. of which the defendant has actual, subjective awareness of the risk involved, but
nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Answer "Yes~~ or '"No":

ANSWER:

Charge of the Court Page 9

3014
 Answer Question No. 5 only if you unanimously answered "Yes" to Question No. I regarding
Joe Tex Xpress, Inc. Otherwise, do not answer Question No. 5.

You arc instructed that, in order to answer "Yes" to the following question, your answer must
be unanimous. You may answer "No" to the following question only upon a vote of ten or more
Jurors. Otherwise, you must not answer that part of the following question.

QUESTION NO. S:

Do you find by clear and convincing evidence that the harm to Krista Dillon resulted from
gross negligence attributable to Joe Tex Xpress, Inc.?

"Clear and convincing evidence" means the measure or degree of proof that produces a firm
belief or conviction of the truth of the allegations sought to be established.

"Gross negligence" means an act or omission by a defendant:

a. which, when viewed objectively from the standpoint of the defendant at the time of its
occurrence involves an extreme degree of risk, considering the probability and magnitude of the
potential harm to others; and

b. of which the defendant has actual, subjective awareness of the risk involved, but
nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Answer "Yes" or "No:

ANSWER:
I .

I. When you go into the jury room to answer the questions, the first thing you will need

Charge of the Court Page 10

3015
 to do is choose a presiding juror.

2. The presiding juror has these duties:

a. have the complete charge read aloud if it will be helpful to your deliberations;

b. preside over your deliberations, meaning manage the discussions, and see that
you follow these instructions;

c. give written questions or comments to the bailiff who will give them to the
judge;

d. write down the answers you agree on;

e. get the signatures for the verdict certificate; and

f. notify the bailiff that you have reached a verdict.

Do you understand the duties of the presiding juror? If you do not, please tell me now.

Instructions for Signing the Verdict Certificate:

l. You may answer the questions on a vote of l 0 jurors. The same l 0 jurors must agree
on every answer in the charge. This means you may not have one group of I 0 jurors
agree on one answer and a different group of l 0 jurors agree on another answer.

2. If I 0 jurors agree on every answer, those 10 jurors sign the verdict.

If 11 jurors agree on every answer, those 11 jurors sign the verdict.

If all 12 of you agree on every answer, you are unanimous and only the presiding
juror signs the verdict.

3. All jurors should deliberate on every question. You may end up with all 12 of you
agreeing on some answers, while only I 0 or 1 I of you agree on other answers. But
when you sign the verdict, only those 10 who agree on every answer will sign the
verdict.

Charge of the Court Page 11

3016
 VERDICT CERTIFICATE FOR QUESTIONS Nos.1-3
Check one:

Our verdict is unanimous. All 12 of us have agreed to each and every answer. The
presiding juror has signed the certificate for all 12 of us.

Our verdict is not unanimous. Eleven of us have agreed to each and every answer in
questions 1-3 and have signed the certificate below.

t:__.,,.-" Our verdict is not unanimous. Ten of us have agreed to each and every answer in
questions 1-3 and have signed the certificate below.

NAME PRINTED

\\.

2.

3.

4.
~

5. N\Q \iS'\c,._ ~D\3nj00
6.

8.

9.

Charge of the Court Page 12

3017
 VERDICT CERTIFICATE FOR QUESTION NO. 4
Check one:

--~~~-, Our verdict is unanimous. All 12 of us have agreed to the answer in question 4. The
presiding juror has signed the certificate for all 12 of us.

~
Sifoature of Presiding Juror

Our verdict is not unanimous. Eleven of us have agreed to the answer in question 4
and have signed the certificate below.

Our verdict is not unanimous. Ten of us have agreed to the answer in question 4 and
have signed the certificate below.

SIGNATURE NAME PRINTED

I.

2.

3.

4.

5.

6.

7.

8.

9.

I 0.

1I.

Charge of the Court Page 13

3018
 VERDICT CERTIFICATE FOR QUESTION NO. 5
Check one:

~ Our verdict is unanimous. All 12 of us have agreed to the answer in question 5. The
presiding juror has signed the certificate for all 12 of us.

Signature of Presiding Juror

Our verdict is not unanimous. Eleven of us have agreed to the answer in question 5
and have signed the certificate below.

Our verdict is not unanimous. Ten of us have agreed to the answer in question 5 and
have signed the certificate below.

SIGNATURE NAME PRINTED

I.

2.

3.

4.

5.

6.

7.

8.

9.

I 0.

I I.

Charge of the Court Page 14

3019
Appendix C
 F./J
1
CAUSE NO. CV40921
~~tr
9.oO a.,,.,..
FI l r:
·~"""" £)
2014 ocr
KRIST A DILLON § IN THE DISTRICT co~'fli I: 05
§ P4rmc1,, , _
f1n_...fll$ Ir::ifi"'· LJ_UF(//ER
v. § OF HOPKINS COV.l'f[.l'.!1,CLERk
..,,,_,, ); /'f"·
§ -·oAS
DENNIS RAYNER AND §
JOE TEX XPRESS, INC. § 62ND JUDICIAL DISTRICT

CHARGE OF THE COURT

LADIES AND GENTLEMEN OF THE JURY:

After the closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.

Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or conduct
any research. Do not look up any words in dictionaries or on the Internet. Do not post information
about the case on the Internet. Do not share any special knowledge or experiences with the other
jurors. Do not use your phone or any other electronic device during your deliberations for any reason.
I will give you a number where others may contact you in case of an emergency.

Any notes you have taken arc for your own personal use. You may take your notes back into
the jury room and consult them during deliberations, but do not show or read your notes to your
fellow jurors during your deliberations. Your notes are not evidence_ Each of you should rely on
your independent recollection of the evidence and not be influenced by the fact that another juror has
or has not taken notes.

You must leave your notes with the bailiff when you are not deliberating. The bailiff will
give your notes to me promptly after collecting them from you. I will make sure your notes are kept
in a safe, secure location and not disclosed to anyone_ After you complete your deliberations, the
bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly
destroy your notes so that nobody can read what you wrote_

Here are the instructions for answering the questions.

l. Do not let bias, prejudice, or sympathy play any part in your decision.

2. Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that

Charge of the Court Page I

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f
 was not admitted in the courtroom.

3. You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters of
law, you must follow all of my instructions.

4. If my instructions use a word in a way that is different from its ordinary meaning, use
the meaning I give you, which will be a proper legal definition.

5. All the questions and answers are important. No one should say that any question or
answer is not important.

6. Do not decide who you think should win before you answer the questions and then
just answer the questions to match your decision. Answer each question carefully
without considering who will win. Do not discuss or consider the effect your
answers will have.

7. Do not answer questions by drawing straws or by any method of chance.

8. Some questions might ask you for a dollar amount. Do not agree in advance to
decide on a dollar amount by adding up each juror's amount and then figuring the
average.

9. Do not trade your answers. For example, do not say, "I will answer this question
your way if you answer another question my way."

10. In discharging your responsibility on this jury, you will observe all the instructions
that have been previously given to you

As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would waste
your time and the parties' money, and would require the taxpayers of this county to pay for another
trial. If a juror breaks any of these rules, tell that person to stop and report it to me immediately.

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 QUESTION NO. 6

You are instructed that you must unanimously agree on the amount of any award of
exemplary damages.

What sum of money, if any, should be assessed against Dennis Rayner and awarded to Krista
Dillon as exemplary damages for the conduct found in response to Question No. 4 in the previous
Charge of the Court?

"Exemplary damages" means any damages awarded as a penalty or by way of punishment
but not for compensatory purposes. Exemplary damages includes punitive damages.

Factors to consider in awarding exemplary damages, if any, are -

(a) The nature of the wrong.
(b) The character of the conduct involved.
(c) The degree of culpability of the wrongdoer.
(d) The situation and sensibilities of the parties concerned.
(e) The extent to which such conduct offends a public sense of justice and propriety.
(f) The net worth of Dennis Rayner

Answer in dollars and cents, if any.

ANSWER: ) (\OQ.

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 QUESTION NO. 7

You are instructed that you must unanimously agree on the amount of any award of
exemplary damages.

What sum of money, if any, should be assessed against Joe Tex Xpress, Inc. and awarded to
Krista Dillon as exemplary damages for the conduct found in response to Question No. 5 in the
previous Charge of the Court?

"Exemplary damages" means any damages awarded as a penalty or by way of punishment
but not for compensatory purposes. Exemplary damages includes punitive damages.

Factors to consider in awarding exemplary damages, if any, are -

(a) The nature of the wrong.
(b) The character of the conduct involved.
(c) The degree of culpability of the wrongdoer.
(d) The situation and sensibilities of the parties concerned.
(e) The extent to which such conduct offends a public sense of justice and propriety.
(f) The net worth of Joe Tex Xpress, Inc.

Answer in dollars and cents, if any.

ANSWER:

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Presiding Juror:

I. When you go into the jury room to answer the questions, the first thing you will need
to do is choose a presiding juror.

2. The presiding juror has these duties:

a. have the complete charge read aloud ifit will be helpful to your deliberations;

b. preside over your deliberations, meaning manage the discussions, and see that
you follow these instructions;

c. give written questions or comments to the bailiff who will give them to the
judge;

d. write down the answers you agree on;

e. get the signatures for the verdict certificate; and

f. notify the bailiff that you have reached a verdict.

Do you understand the duties of the presiding juror? If you do not, please tell me now.

Instructions for Signing the Verdict Certificate:

I. You must answer the questions on a vote of 12 jurors.

Do you understand these instructions? lfyou do not, please tell me now.

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 VERDICT CERTIFICATE FOR OUESTION NO. 6

We, the jury, have answered the above and foregoing question as herein indicated, and
herewith return same into court as our verdict/