Sarah Gregory and New Prime, Inc. v. Jaswinder Chohan and Alma J. Perales

AFFIRMED; Opinion Filed November 30, 2020

S
Court of Appeals
In The

Fifth District of Texas at Dallas
No. 05-18-00167-CV

SARAH GREGORY AND NEW PRIME, INC., Appellants
V.
JASWINDER CHOHAN, INDIVIDUALLY AND AS NEXT FRIEND AND
NATURAL MOTHER OF G.K.D., H.S.D., AND A.D., MINORS, AND AS
REPRESENTATIVE OF THE ESTATE OF BHUPINDER SINGH DEOL,
DARSHAN SINGH DEOL, JAGTAR KAUR DEOL, GUILLERMO
VASQUEZ, WILLIAM VASQUEZ, INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF ALMA B. (“BELINDA”)
VASQUEZ, ALMA J. PERALES, INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF HECTOR PERALES AND AS
NEXT FRIEND OF MINOR N.P., Appellees

On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-15-02925-E

EN BANC OPINION
Before the Court En Banc1
Opinion by Justice Reichek
Sarah Gregory and New Prime, Inc. appeal a judgment awarding damages to

the Estate of Bhupinder Singh Deol and his wife, children, and parents in connection

1
The Court En Banc consists of the 13 current justices as well as the Honorable Martin Richter, Justice,
Court of Appeals, Fifth District of Texas as Dallas, Retired, who sat by assignment on the original panel.
with Deol’s death following a multi-vehicle collision on Interstate 40 in Texas.2 In

twelve issues,3 Gregory and New Prime challenge the sufficiency of the evidence to

support various jury findings and assert instances of error in the jury charge and in

the striking of designated responsible third parties. For the reasons set out below,

we overrule the twelve issues presented and we affirm the trial court’s judgment.

BACKGROUND4

This appeal involves a multi-vehicle accident that occurred in the early

morning hours of November 23, 2013, on an unlit portion of Interstate 40, after

Gregory jackknifed a tractor-trailer she was driving for New Prime. Four people

died, and others were injured, as a result of the accident.

The tractor-trailers and the vehicles involved in the accident were traveling

east on Interstate 40 near the New Mexico–Texas state line. That portion of

Interstate 40 is a four-lane highway, two lanes in each direction, with right and left

shoulders, and grassy medians between the east- and west-bound lanes and between

the shoulders and service roads.

2
One of the vehicles involved in the collision was a van driven by Guillermo Vasquez. He and several
family members, identified herein as the Vasquez/Perales family, were also parties to this suit and the
judgment included various damage awards to them. During the pendency of this appeal, Gregory and New
Prime settled the Vasquez/Perales family’s claims and the Vasquez/Perales family released their judgment.
Accordingly, this opinion will address Gregory and New Prime’s complaints as they relate to the Deol
family only.
3
Initially, Gregory and New Prime asserted thirteen issues. One of those issues, issue eleven,
concerned the Vasquez/Perales family only. Because Gregory and New Prime have settled the
Vasquez/Perales family’s claims, we do not consider that issue. TEX. R. APP. P. 47.1.
4
Justice Schenck was the original author of this opinion. The background facts and portions of the
analysis in this en banc opinion were adapted from his original opinion.
–2–
 As Gregory drove the New Prime tractor-trailer east on Interstate 40, she saw

the brake lights of two passenger vehicles one-half mile to one mile ahead. She

applied the brakes in a firm fashion and the truck slid on a patch of ice. Gregory lost

control, and the tractor-trailer jackknifed across the roadway. When it finally came

to rest, the cab was partially on the left shoulder with the trailer at an angle, blocking

all of the left lane and half of the right lane of traffic. Gregory abandoned the truck

without activating its emergency flashers or setting out any reflective triangles or

flares despite instructions to do so contained in an “Accident Checklist” in the cab.

She returned to the truck when she realized her co-driver, 22-year-old Aaron Ellison,

was in the cab’s sleeping berth.5 Gregory roused Ellison, and together they walked

through the center median toward the westbound traffic to get to a safe area.

Soon afterwards, six tractor-trailers and two passenger vehicles crashed into

or around the New Prime truck, the first being a Maryland Trucking Company

tractor-trailer driven by Deol. Deol managed to maneuver his truck around the New

Prime truck, but was clipped on the right rear side by a Danfreight Systems’ tractor-

trailer. Deol stopped his tractor-trailer on the right shoulder and the Danfreight

System’s tractor-trailer stopped in the grassy area between the right shoulder and the

service road.

5
New Prime hired Gregory approximately three months prior to the accident at issue in this case. After
some training, she obtained a commercial driver’s license. She spent several more weeks driving tractor-
trailers under the oversight of certified instructors. At the time of the accident, Gregory was classified as a
B1 driver, meaning she had to be paired with a certified instructor or an experienced driver. There was
evidence adduced at trial that Ellison was only marginally more experienced than Gregory.
–3–
 An ATG Transportation tractor-trailer then arrived. Its driver steered hard to

the right to avoid the New Prime truck, overturning in the process so that the cab

was on the grassy area beyond the right shoulder and the back of the trailer protruded

onto the right shoulder. At that point, the accident scene appeared as follows with

the New Prime tractor-trailer jackknifed, the ATG Transportation tractor-trailer on

its side, the Maryland tractor-trailer on the right shoulder, and the Danfreight tractor-

trailer ahead on the right grassy median.6

6
The accident scene depictions in this opinion are extracted from exhibits admitted at trial.
–4–
–5–
 Moments later, Guillermo Vasquez, his wife Belinda, their adult son William,

their adult daughter Alma Perales, Alma’s husband Hector Perales, and one of the

Perales’ sons approached the accident scene in their Chevy van. They were traveling

at approximately 30 miles per hour. As Vasquez approached the accident site, he

took his foot off the pedal and steered left. The van slid and hit the New Prime truck

at approximately 10 miles per hour. No one was injured in that collision. Shortly

thereafter, a silver Prius going more than 70 miles per hour came upon the scene. It

collided with the rear of the ATG trailer and remained on the right shoulder. Three

of the Prius passengers had time to get out of the car and were attempting to extract

the fourth. While they were doing so, a P&O Transportation tractor-trailer, driven

by Orland Ferrer, arrived on the scene. Ferrer saw the Prius and steered left in an

effort to avoid it. At that point, he saw the unlit New Prime trailer jackknifed across

the road, but he could not brake quickly enough on the icy road to avoid striking the

Vasquezes’ van that was stopped in front of it.

After colliding with the Vasquezes’ van, the P&O truck itself was then struck

by two other tractor-trailers, one belonging to D.O.D. Reynolds and the other to

CDO Express Diversified. All three of the tractor-trailers ended up in the center

median. The final accident scene appeared as follows with the New Prime truck on

the left shoulder and center median, the Prius and Vasquez van near the Maryland

truck, and the Reynolds, P&O, and CDO Express trucks on the center median.

–6–
–7–
 When state troopers arrived at the scene, they discovered multiple people had

been killed or seriously injured, including Deol who was lying on the roadway.

Accident reconstruction experts concluded that when the P&O truck struck the

Vasquez van, it caused the van to roll and run over Deol, killing him.

Deol’s wife, Jaswinder Chohan, individually and on behalf of her and Deol’s

three children, together with Deol’s estate and Deol’s parents, who lived with Deol’s

family, sued Gregory, New Prime, and others for negligence. In addition to claiming

New Prime was vicariously liable for Gregory’s negligence, the Deol family asserted

direct claims of negligence against New Prime for negligent entrustment,

supervision, and training. The Deol family settled their claims against all of the

defendants other than Gregory and New Prime.

Before trial, Gregory and New Prime designated P&O Transport, ATG

Transportation, Danfreight Systems, and their respective drivers as responsible third

parties. The Deol family moved to strike these designations, and the trial court

granted the motion. The court stated it would reconsider its ruling before submitting

the case to the jury.

At trial, Gregory and New Prime requested that the trial court instruct the jury

on the concepts of sudden emergency, unavoidable accident, and new and

independent cause. The trial court granted Gregory and New Prime’s request as to

the sudden emergency instruction, but denied their request as to the unavoidable-

accident and new-and-independent cause instructions. Ultimately, the trial court
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asked the jury to decide whether the negligence of Gregory, New Prime, the P&O

driver, and Deol proximately caused Deol’s death. The trial court did not ask the

jury to consider any negligence on the part of ATG Transportation or Danfreight

Systems. The jury answered affirmatively as to causation with respect to Gregory,

New Prime, and the P&O driver, and negatively as to Deol himself. The jury

apportioned responsibility for Deol’s death as follows: fifty-five percent to Gregory,

thirty percent to New Prime, and fifteen percent to the P&O driver.

The jury awarded almost $17 million in economic and non-economic damages

to the estate and family of Deol, including $500,000 for Deol’s pain and mental

anguish. The trial court entered a final judgment stating, in part, the following:

At trial it was undisputed that Defendant Sarah Gregory was an
employee of Defendant New Prime, Inc. d/b/a Prime, Inc., operating
within the course and scope of her employment at the time of the
accident. Therefore, Defendant New Prime, Inc. d/b/a Prime, Inc. is
vicariously liable for the negligence of Defendant Sarah Gregory and
her percentage of responsibility is attributed to Defendant New Prime,
Inc. d/b/a Prime, Inc.

The judgment awarded the Deol family “actual damages in the sum of sixteen

million four hundred forty-seven thousand two hundred seventy-two dollars and

thirty-one cents ($16,447,272.31), reflecting settlement credits of four hundred

seventy-eight thousand eight hundred thirty dollars and no cents ($478,830.00), from

Defendants Sarah Gregory and New Prime, Inc. d/b/a Prime, Inc., which are jointly

and severally liable for the entire amount of such sum.” Gregory and New Prime

then brought this appeal.

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 DISCUSSION

I. Sufficiency of the Evidence – Negligence

In their first issue, Gregory and New Prime assert the evidence is legally and

factually insufficient to prove Gregory was negligent. Gregory and New Prime’s

legal sufficiency challenge requires us to view the evidence “in the light most

favorable to the verdict, and indulge every reasonable inference that would support

it.” City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The evidence is

legally sufficient if “more than a scintilla of evidence exists.” Browning–Ferris, Inc.

v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993). More than a scintilla of evidence exists

if the evidence furnishes some reasonable basis for differing conclusions by

reasonable minds about a vital fact’s existence. Litton Loan Servicing, L.P. v.

Manning, 366 S.W.3d 837, 840 (Tex. App.—Dallas 2012, pet. denied). The final

test for legal sufficiency must always be whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review. Del Lago

Partners, Inc. v. Smith, 307 S.W.3d 762, 770 (Tex. 2010). In reviewing Gregory

and New Prime’s factual-sufficiency challenge, we “consider and weigh all the

evidence, and we should set aside the verdict only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust.” Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Negligence means a failure to use ordinary care, which is failing to behave as

a person of ordinary prudence would have under the same or similar circumstances.
–10–
Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 896 (Tex. 2016). We conclude the

testimony presented at trial from Gregory, Ellison, New Prime’s safety supervisor,

the P&O driver, a meteorologist, a motor carrier expert, an accident

reconstructionist, and others is legally and factually sufficient to establish Gregory

was negligent in multiple ways.

The evidence showed this fatal trip began with Gregory and her 22-year-old

teammate, Ellison, driving to California to drop off cargo and pick up a load of beer

to deliver to North Carolina. Gregory relieved Ellison as driver in Santa Rosa, New

Mexico. She had to backtrack several hours in the opposite direction to a casino in

Sky City, New Mexico, because Ellison had left his wallet there. Gregory then

encountered snow on the way back to Santa Rosa. She experienced problems with

the windshield-wiper fluid, causing difficulty seeing out the windshield because of

freezing ice. She stopped in Moriarty, New Mexico, to have the problem fixed and

then proceeded to travel east toward Amarillo, Texas.

Gregory checked the weather while in Moriarty but did not make any effort

to obtain updates thereafter. The National Weather Service issued a winter weather

advisory covering the relevant time and area, warning of snow, sleet, or freezing rain

that could create slippery roads. The temperature was 23 degrees, and there was

light freezing drizzle and sleet. The freezing and icy conditions extended west all

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the way to the state line.7 Despite the weather conditions and running behind

schedule, Gregory approached the accident site with the truck’s cruise control set at

58 miles per hour. Experts testified cruise control should not be used when there is

precipitation or indications of ice. Gregory acknowledged, and others confirmed,

that, if it was precipitating, her speed was in violation of the applicable standard of

care, that is to say, not a speed at which a person of ordinary prudence would travel.

Gregory testified she lost control of the New Prime truck when she applied a

“hard stop” and hit a patch of ice. The jury heard from a safety expert who testified

a prudent driver would not apply maximum braking pressure under the conditions

Gregory faced.8 One of the other truck drivers involved in the accident testified that,

when attempting to stop or slow down, drivers should stab the brake, then let up,

stab again, then let up again, because holding the brakes down locks everything up

causing the driver to lose control of the vehicle. Significantly, Gregory admitted

that, in losing control of the rig, she failed to meet the standard of care required in

operating a tractor-trailer. Accordingly, in addition to establishing Gregory failed

to recognize adverse weather conditions and drove at an unsafe speed, the evidence

7
Three years after the accident, some of the witnesses did not recall inclement weather at the time of
the accident. The jury was free to weigh their testimony against that of the meteorologist and the fact that
the evidence showed Gregory encountered ice at the time of the accident. Leibovitz v. Sequoia Real Estate
Holdings, L.P., 465 S.W.3d 331, 351 (Tex. App.—Dallas 2015, no pet.) (factfinder is sole judge of
credibility and weight to be given testimony).
8
The expert explained that because there is a tractor and a separate trailer, coupled with a fifth wheel,
there is a brake lag, which means there is roughly a half-second delay between when the driver of the tractor
applies the brakes and when the brakes are actually applied throughout the entire vehicle.
–12–
supported a finding that Gregory was negligent in braking in a manner that caused

the trailer to jackknife upon encountering ice on the roadway.

The evidence regarding negligence addressed not only Gregory’s actions

resulting in her truck blocking the roadway, but also her actions after her truck

became disabled that were material to creating the resulting pile up. If a parked or

disabled vehicle obstructs the road, the operator of the vehicle must act with

reasonable promptness to warn other motorists of the vehicle’s presence and to

remove the vehicle from the road. Lofton v. Norman, 508 S.W.2d 915, 919 (Tex.

App.—Corpus Christi–Edinburg 1974, writ ref’d n.r.e.); McClellan v. Lee, 426

S.W.2d 635, 638 (Tex. App.—Houston [1st Dist.] 1968, no writ). Gregory did

neither. She failed to activate the truck’s emergency warning flashers, failed to set

out reflective triangles or flares, and abandoned her truck in its jackknifed condition

on the dark, icy highway blocking most of the eastbound lanes even though she knew

that oncoming motorists would have to “fend for themselves, with respect to the

hazard [she] created.” Gregory acknowledged that by abandoning the truck she

violated the standard of care that New Prime wanted her to follow.

Gregory and New Prime contend evidence that the other tractor-trailer drivers

who were involved in the accident did not activate any warning systems shows she

did not violate the standard of care. Many of the other tractor-trailers, however,

managed to clear the roadway and were stopped in a way that did not create a hazard

to oncoming traffic. More importantly, the standard of care is determined
–13–
objectively by what a person of ordinary prudence would have done under the same

or similar circumstances. See 20801, Inc. v. Parker, 249 S.W.3d 392, 398 (Tex.

2008). Accordingly, the conduct of the other drivers does not conclusively establish

that Gregory did not violate the objective standard of care. Finally, while the

evidence showed Gregory had time to exit her truck, walk away, return to retrieve

Ellison, and then again walk to safety, the record does not show that the drivers

whose vehicles came upon the scene later and were forced to stop in a manner that

blocked the road had the same amount of time to activate a warning system before

the fatal events occurred.

Gregory attempts to rely on the defense of sudden emergency. The sudden-

emergency doctrine applies only if the sudden emergency was not proximately

caused by any negligence of the defendant and, after the emergency arises, the

defendant acts as a person of ordinary prudence would have acted under the same or

similar circumstances. Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 432 n.4 (Tex.

2005). As noted above, the evidence established Gregory’s actions before and after

her tractor-trailer encountered ice on the roadway were negligent because she failed

to recheck the weather, drove with the cruise control activated at an unsafe speed,

applied a hard stop as her truck hit the ice, and then failed to warn oncoming traffic

of the hazard she created when a reasonably prudent person would have done so.

Accordingly, the jury had more than sufficient evidence to reject Gregory and New

Prime’s sudden-emergency defense.
–14–
 Considering and weighing all of the evidence in the record pertinent to the

finding of negligence, we determine that there is more than a scintilla of competent

evidence to support the jury’s finding, and the finding is not contrary to the

overwhelming weight of all the evidence as to be clearly wrong and unjust.

Accordingly, we conclude the evidence is legally and factually sufficient to support

the jury’s finding Gregory was negligent.

II. Sufficiency of the Evidence – Proximate Cause

In their fourth issue, Gregory and New Prime also contend the evidence is

legally and factually insufficient to support the jury’s finding that Gregory’s conduct

proximately caused Deol’s death. Proximate cause has two sub-elements, cause-in-

fact and foreseeability. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).

Negligence is a cause-in-fact of an injury if (1) the injury would not have occurred

without the negligence and (2) the negligence is a substantial factor in causing the

injury. Miller v. Lone Star HMA, L.P., No. 05-17-00954-CV, 2018 WL 3991191, at

*2 (Tex. App.—Dallas Aug. 21, 2018, pet. denied) (mem. op.). Foreseeability

requires that the negligent actor, as a person of ordinary intelligence, anticipate, or

should have anticipated, the danger their negligence created for others. See Nixon

v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549–50 (Tex. 1985).

To proximately cause an injury, an actor need not be the last cause, nor

commit the act immediately preceding the injury. J. Wigglesworth Co. v. Peeples,

985 S.W.2d 659, 663 (Tex. App.—Fort Worth 1999, pet. denied) (citing Tex. Power
–15–
& Light Co. v. Stone, 84 S.W.2d 738, 740 (Tex. App.—Eastland 1935, writ ref’d)).

Moreover, there can be more than one proximate cause of an accident. Travis v. City

of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). When the new cause or agency concurs

with the continuing and co-operating original negligence in working the injury, the

original negligence remains a proximate cause of the injury, and the fact that the new

concurring cause or agency may not have been reasonably foreseeable should not

relieve the wrongdoer of liability. Bell v. Campbell, 434 S.W.2d 117, 122 (Tex.

1968). Thus, it is no defense that a third person’s negligent act intervened to cause

the injury to the plaintiff if the new act cooperates with the still-persisting original

negligence of the defendant to bring about the injury. See Rodriguez v. Moerbe, 963

S.W.2d 808, 819 (Tex. App.—San Antonio 1998, pet. denied).

Gregory and New Prime claim Gregory’s negligence was not a cause-in-fact

of the collision that killed Deol because the initial accident had come to a rest and

intervening conduct became the proximate cause of Deol’s death. Gregory and New

Prime also argue that Gregory merely created a condition in which the accident

occurred and thus Gregory’s actions were not a proximate cause under controlling

Texas law.

In support of their contention that the accident had run its course at the time

Deol was struck and killed by the Vasquez van, Gregory and New Prime rely on Bell

v. Campbell. In Bell, a vehicle pulling a trailer on a highway rear-ended another

vehicle. Bell, 434 S.W.2d at 119. During the accident, the trailer broke off and came
–16–
to rest on the highway. Id. Passers-by then stopped to help move the trailer to the

side of the road. Id. As they were doing so, they were struck by another automobile,

the driver of which had ignored or failed to see a person flashing a warning signal.

Id. The estates of two of the passers-by sued the owner of the trailer for negligence.

On appeal, the Texas Supreme Court agreed with the determination by the jury that

the negligence of the owner of the trailer did not constitute legal causation. The

court stated “[t]he active and immediate cause of the second collision . . . was an

entirely independent agency . . . . All forces involved in or generated by the first

collision had come to rest, and no one was in any real or apparent danger therefrom.”

Id. at 120. The court further held that the defendant’s negligence “did not actively

contribute in any way to the injuries . . . . It simply created a condition which

attracted [plaintiffs] to the scene . . .” Id. at 122.

We observe that while the facts in Bell and this case are similar in part, there

are critical differences. The record before us establishes Gregory’s negligence did

not merely create a condition which “attracted” Deol to the scene. Rather, Gregory’s

negligence caused Deol to take evasive action and then have his truck struck by

another tractor-trailer. He was in the zone of danger created by Gregory and that

persisted unabated thereafter because of her failure to signal any warning. Thus,

unlike the warning provided in Bell before the second driver hit the good Samaritans,

here there was no warning before the P&O driver approached the scene colliding

with the Vasquez van and pushing it into Deol, causing his death. The jury in this
–17–
case could readily conclude that the potential danger created by Gregory’s

negligence in jackknifing the trailer and in failing to warn oncoming traffic,

continued and remained active. Her actions and failure to act continued to create a

danger to which those already involved in the accident and those that encountered

the scene were exposed. Thus, Gregory’s negligence “actively contributed” to

Deol’s peril in the critical time frame.

Gregory and New Prime also rely on Union Pump v. Allbritton, 898 S.W.2d

773 (Tex. 1995). That case involved a fire at a Texaco facility, which had been

caused by a machine manufactured by Union Pump. Id. at 774. Allbritton, a Texaco

employee, assisted in extinguishing the fire. When leaving the scene, Allbritton

walked over a pipe rack which was wet with water or foam. Id. She slipped on the

rack and injured herself. Id. Allbritton stated the route she took over the pipes was

the shorter route but not the safer route. Id. Allbritton admitted she chose the less-

safe route because she had a “bad habit” of doing so. Id. Relying on the above-

quoted language in Bell, the court held that the negligence of Union Pump was too

remote to constitute proximate cause of Allbritton’s injury. Id. at 776.

Again, the facts of Union Pump are materially different from those presented

here in that the plaintiff in Union Pump was not injured by the danger created by the

defendant’s negligence because that danger had ceased to exist. In contrast,

Gregory’s negligence in jackknifing the trailer and in failing to warn oncoming

traffic created an active danger that continued to exist and contributed to Deol’s
–18–
death. We further note there are several cases factually similar to this case from this

Court and other courts of appeals that likewise distinguish Bell, Union Pump, or

both. See, e.g., In re Molina, 575 S.W.3d 76, 82 (Tex. App.—Dallas 2019, orig.

proceeding) (driver’s conduct in darting across roadway did not merely furnish

condition that made accident possible, it forced another driver to slow down, which

in turn caused collision); Westfreight Sys., Inc. v. Heuston, No. 04-14-00124-CV,

2015 WL 3772397, at *4 (Tex. App.—San Antonio June 17, 2015, pet. denied)

(mem. op.) (driver’s initial negligence in backing 18-wheeler across darkened

highway continued to pose danger even after he began moving truck forward);

Homeland Express, L.L.C. v. Seale, 420 S.W.3d 145, 150–51 (Tex. App.—El Paso

2012, no pet.) (driver’s negligence in parking 18-wheeler on part of lane of travel

and failing to set out warning devices was proximate cause of collision that occurred

thereafter; dangerous situation caused by parking 18-wheeler never abated and

forces generated by driver’s conduct had not come to rest at time of collision);

Longoria v. Graham, 44 S.W.3d 671, 676 & n.6 (Tex. App.—Houston [14th Dist.

2001, no pet.) (rejecting argument that plaintiff should have stayed in car instead of

exhibiting good Samaritan conduct); Peeples, 985 S.W.2d at 664 (holding that by

negligently causing his truck to become disabled on interstate highway and block

traffic, defendant was legal cause of subsequent collision; evidence “clearly”

established that defendant’s negligence and effects thereof, i.e., traffic backup, had

not come to rest); J.D. Abrams, Inc. v. McIver, 966 S.W.2d 87, 94 (Tex. App.—
–19–
Houston [1st Dist.] 1998, pet. denied) (defendant highway contractor negligently

restricted lanes of traffic, creating slowdowns or stoppages, and causing rear-end

collisions; held that effects of its negligence, though negligence apparently had been

committed hours earlier, had not ended and caused accident in much more direct

sequence than in Bell and Union Pump); Almaraz v. Burke, 827 S.W.2d 80, 82 (Tex.

App.—Fort Worth 1992, writ denied) (defendant negligently lost control of vehicle,

leaving it sideways and disabled in overpass; distinguishing Bell, court held

defendant was a proximate cause of second collision, which occurred ten minutes

after first, because defendant could reasonably foresee his wrecked vehicle causing

subsequent collision before preventative action could be taken).

We believe the cited cases from our Court and sister courts of appeals are

materially on point and are faithful to the guiding principles of law provided by the

supreme court that the negligence must be a substantial factor in bringing about the

plaintiff’s harm. “The word ‘substantial’ is used to denote the fact that the

defendant’s conduct has such an effect in producing the harm as to lead reasonable

[people] to regard it as a cause, using that word in the popular sense, in which there

always lurks the idea of responsibility . . . .” Lear Siegler, Inc. v. Perez, 819 S.W.2d

470, 472 (Tex. 1991) (quoting RESTATEMENT (SECOND) OF TORTS § 431 cmt. 1

(1965)).

We conclude, based on the evidence presented at trial, the jury could have

reasonably concluded that Gregory’s initial negligence in jackknifing the trailer and
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abandoning the vehicle on a dark, icy highway without warning to oncoming traffic,

continued to pose a danger to all motorists who approached the scene thereafter and

until the injuries at issue here occurred. All forces involved in or generated by

Gregory’s actions had not come to a rest, and others were still in real danger

therefrom.

III. Apportionment of Liability

In their second issue, Gregory and New Prime urge that the apportionment of

only fifteen percent responsibility to the P&O driver is against the great weight and

preponderance of the evidence. They contend that the finding ignores the fact that

no one was hurt until the P&O truck arrived on the scene.

The jury is given wide latitude in performing its duty to serve as factfinder in

allocating responsibility for an accident pursuant to section 33.003 of the Texas Civil

Practice and Remedies Code. Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643,

659 (Tex. App.—Dallas 2002, pet. denied). Even if the evidence could support a

different percentage allocation of responsibility, an appellate court may not

substitute its judgment for that of the jury so long as there was evidence before the

jury that can rationally support its conclusions. Samco Props., Inc. v.

Cheatham, 977 S.W.2d 469, 478 (Tex. App.—Houston [14th Dist.] 1998, pet.

denied).

The jury in this case heard evidence over the course of a three-week trial that

Gregory lost control of the tractor-trailer she was driving after hard-braking on ice
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which resulted in the truck jackknifing. Gregory then abandoned the truck on the

highway, leaving it blocking most of both lanes of travel on a dark evening without

activating or setting out any warning system or device. By the time the P&O truck

arrived on the scene, the ATG Transportation truck and the truck driven by Deol

were on the right-side shoulder and grassy area because of the hazard created by

Gregory’s abandoned vehicle. Because Gregory failed to activate any warning

system, the P&O driver did not see the New Prime trailer until he was nearly upon

it. The accident reconstructionist testified none of the collisions, including the P&O

truck’s collision with the Vasquez van, would have occurred if Gregory’s trailer had

not been blocking the roadway. Based upon this evidence, we cannot find reversible

error in the jury’s allocation of only fifteen percent of the responsibility to P&O.

IV. Responsible Third Parties

In their third issue, Gregory and New Prime contend the trial court erred in

striking their designation of ATG Transportation and Danfreight Systems as

potentially responsible third parties. Texas law allows a tort defendant to designate

a person as a “responsible third party.” TEX. CIV. PRAC. & REM. CODE §33.004(a).

The designation’s purpose is to have facts relating to that third party submitted to

the trier of fact as a possible cause of, or contributing factor to, the claimant’s alleged

injury. See id. § 33.003. This may reduce the percentage of responsibility attributed

to the defendant, thus ultimately reducing its liability to the claimant. Id. § 33.013.

–22–
 Once a responsible third party has been designated, and after an adequate time

for discovery has passed, a party may move to strike the designation “on the ground

that there is no evidence that the designated person is responsible for any portion of

the claimant’s alleged injury or damage.” Id. § 33.004(l); In re Yamaha Golf-Car

Co., No. 05-19-00292-CV, 2019 WL 1512578, at *1 (Tex. App.—Dallas Apr. 8,

2019, orig. proceeding) (mem. op.). When confronted with a motion to strike, a

defendant must produce sufficient evidence to raise a genuine issue of fact regarding

the designated person’s responsibility for the claimant’s injury. In re Yamaha, 2019

WL 1512578, at *1. A trial court may not submit a question to the jury regarding

the conduct of any person without sufficient evidence to support the submission. Id.

§ 33.003(b).

A party has produced sufficient evidence to support submission of a question

to the jury when it provides more than a scintilla of evidence of potential

responsibility for the claimed injury. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.

1992) (citing Roy v. Howard-Glendale Funeral Home, 820 S.W.2d 844, 846 (Tex.

App.—Houston [1st Dist.] 1991, writ denied)). This occurs when the evidence “rises

to a level that would enable reasonable and fair-minded people to differ in their

conclusions” concerning a party’s responsibility for an injury. King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex. 1997)). A party has produced less than a

scintilla of evidence “when the evidence is ‘so weak as to do no more than create a
–23–
mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650

S.W.2d 61, 63 (Tex. 1983)).

The trial court’s ruling on a motion to strike presents a legal question. Ham

v. Equity Residential Prop. Mgmt. Servs., Corp., 315 S.W.3d 627, 631 (Tex. App.—

Dallas 2010, pet. denied). Thus, our review is de novo. Molina, 575 S.W.3d at 80.

The Deol family moved to strike Gregory and New Prime’s designation of

ATG Transportation and Danfreight Systems, arguing there was no evidence these

parties proximately caused the death of Deol. When presenting evidence to a court

to defeat a motion to strike a designation of a responsible third party, a party must

specifically identify the supporting proof on file that it seeks to have considered by

the trial court. In re Transit Mix Concrete & Materials Co., No. 12-13-00364-CV,

2014 WL 1922724, at *5 (Tex. App.—Tyler May 14, 2014, orig. proceeding) (mem.

op.). Neither this Court nor the trial court is required to wade through a voluminous

record to marshal a party’s proof. Id.

First, Gregory and New Prime argue that, because the evidence established

Guillermo Vasquez and the P&O truck moved to the left to avoid colliding with the

ATG Transportation truck that had come to rest on the right grassy median, they

fulfilled their obligation to raise a genuine fact issue as to the cause of Deol’s death.

We disagree.

The evidence established the Vasquez van was traveling at a low rate of speed

when it approached the accident site. Because Gregory did not activate a warning
–24–
signal, Guillermo Vasquez had no notice of the presence of that truck until he came

upon it in the dark. The evidence showed that, but for Gregory’s vehicle blocking

the road with no hazard warning signal, Vasquez would have had ample space and

time to stop his vehicle and get off the road, notwithstanding the location of the ATG

Transportation truck. Because it was due to Gregory’s actions that the Vasquez van

was placed in the position it was before being pushed over Deol, the evidence is

insufficient to establish that any act or omission by ATG Transportation was a

substantial factor in causing Deol’s death. Consequently, the trial court did not err

in striking Gregory and New Prime’s designation of ATG Transportation as a

responsible third party.

As to Danfreight Systems, Gregory and New Prime contend that because (1)

the police report indicated the Danfreight truck took evasive action and struck the

Maryland truck after the Maryland truck, driven by Deol, began to slow down, (2)

Gregory and New Prime’s accident reconstructionist opined that the left side of the

Danfreight trailer collided with the right rear corner of the Maryland trailer, and (3)

the evidence established Deol exited his truck, there is some evidence Deol “might”

not have exited his truck and been run over by the Vasquez van, if his truck had not

been hit by the Danfreight truck. This claimed evidence is so weak as to do no more

than create a mere surmise or suspicion. In fact, the evidence showed Deol exited

his truck to check on other people who were involved in collisions caused by

–25–
Gregory’s conduct, not because his vehicle was struck.9 Accordingly, Gregory and

New Prime did not produce sufficient evidence to support a finding that an act or

omission of Danfreight Systems caused Deol’s death. Consequently, the trial court

did not err in striking Gregory and New Prime’s designation of Danfreight Systems

as a responsible third party.

V. Jury Instruction

In their fifth issue, Gregory and New Prime urge that, although the trial court

instructed the jury on sudden emergency,10 it improperly refused to instruct the jury

on the doctrine of unavoidable accident. A trial court has considerable discretion to

determine proper jury instructions, and we review a trial court’s decision to submit

or refuse a particular instruction for an abuse of discretion. Thota v. Young, 366

S.W.3d 678, 687 (Tex. 2012).

Unavoidable accident is an inferential rebuttal defense. Dillard, 157 S.W.3d

at 432. The purpose of the unavoidable-accident instruction is to advise the jurors

that “they do not have to place blame on a party to the suit if the evidence shows that

9
Gregory and New Prime did not object to testimony from witnesses stating they had been told Deol
exited his vehicle to check on others.
10
The trial court instructed the jury on sudden emergency as follows:
If a person is confronted by an “emergency” arising suddenly and unexpectedly, which was
not proximately caused by any negligence on his or her part and which, to a reasonable
person, requires immediate action without time for deliberation, his or her conduct in such
an emergency is not negligence or failure to use ordinary care if, after such emergency
arises, he or she acts as a person of ordinary prudence would have acted under the same or
similar circumstances.

–26–
conditions beyond the party’s control caused the accident.” Id. (citing Reinhart v.

Young, 906 S.W.2d 471, 472 (Tex. 1995)). An unavoidable accident is “an event

not proximately caused by the negligence of any party to it.” Reinhart, 906 S.W.2d

at 472. An instruction on unavoidable accident is “most often used to inquire about

the causal effect of some physical condition or circumstance such as fog, snow, sleet,

wet or slick pavement, or obstruction of view, or to resolve a case involving a very

young child who is legally incapable of negligence.” Id. The doctrine of sudden

emergency is subsumed by the broader doctrine of unavoidable accident. Id. at 474.

Thus, the trial court would have been required to submit an unavoidable accident

instruction only if the evidence showed the existence of an unavoidable accident that

was not a sudden emergency. See Columbia Rio Grande Healthcare, L.P. v. Hawley,

284 S.W.3d 851, 855 (Tex. 2009).

During deliberations, the jury sent a note asking “Does a degre[e of]

negligence or external factor not represented as a cause that contributed in question

2 get taken into account in determining losses?” Gregory and New Prime argue this

note suggests the jury wanted to factor black ice into its deliberations. Question 2

concerned the apportionment of responsibility of those found negligent in causing

the deaths of Belinda Vasquez and Hector Perales and the injuries to the Vasquez

and Perales parties. The jury’s inquiry was not tied to a negligence and proximate

cause question.

–27–
 Gregory and New Prime acknowledge that their primary line of defense was

their contention that black ice caused Gregory and others to lose control of their

vehicles. On appeal, Gregory and New Prime claim the sudden-emergency

instruction extended only to Gregory’s failure to take action once she was stopped

and facing traffic and did not cover their assertion that Gregory jackknifed the trailer

because of black ice. But Gregory and New Prime’s contention fails to recognize

that an unavoidable-accident instruction is proper only when there is evidence that

the event was not proximately caused by the negligence of any party to the

event. Hill v. Winn Dixie Tex., Inc., 849 S.W.2d 802, 803 (Tex. 1992). It is not error

to refuse or fail to give an unavoidable-accident instruction where the evidence

shows the accident was in fact avoidable in the exercise of due care. See W. W.

Allen, Annotation, Instructions on unavoidable accident, or the like, in motor

vehicle cases, 65 A.L.R.2d 12 (1959).

We conclude that the evidence in this case does not raise the issue of

unavoidable accident. While Gregory may have encountered ice on the roadway,

the evidence established she was negligent before she encountered the ice. More

particularly, the evidence established she failed to safely operate her vehicle based

on conditions that existed at the time of the accident, she was traveling at a speed

–28–
that was excessive under the circumstances,11 she had the cruise control activated

when it was not appropriate to do so, and she hard-braked on the ice when she should

not have done so. The safety expert testified commercial drivers are expected to

understand the concept of black ice and to check the weather and avoid excessive

speed and reliance on cruise control because of the risks it poses.

Had Gregory checked the weather, maintained a proper speed, not activated

the cruise control, and not hard-braked, she could have avoided losing control of her

vehicle. Because Gregory did not take adequate precautions, she was precluded

from relying on “unavoidable accident” as a defense. See Hyatt Cheek Builders-

Eng’s Co. v. Bd. of Regents of Univ. of Tex. Sys., 607 S.W.2d 258, 266–67 (Tex.

App.—Texarkana 1980, writ dism’d) (trial court did not err in refusing to submit

instruction on unavoidable accident because reasonably prudent contractor should

have foreseen soil movement that led to pipe break); Otis Elevator Co. v. Shows, 822

S.W.2d 59, 63 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (“An

‘unavoidable accident’ is one that ordinary care and diligence could not have

prevented, or one which could not have been foreseen or prevented by the exercise

of reasonable precautions.”). Consequently, the evidence presented did not compel

the trial court to submit the question of whether a non-human factor proximately

11
The safety expert testified that truck drivers are to reduce their speed when adverse conditions exist.
The speed should be reduced one-third below the posted speed limit in rainy conditions, one-half the posted
speed limit in snowy conditions, and to a crawl in icy conditions.
–29–
caused the accident. In all events, an unavoidable-accident instruction would not

have impacted or exonerated Gregory’s failure to activate the emergency flashers or

set out warning devices after she allowed the trailer to jackknife, another basis upon

which the jury was entitled to find negligence. Accordingly, we conclude the trial

court did not abuse its discretion in refusing to instruct the jury on unavoidable

accident.

VI. New Prime’s Liability

The sixth, seventh, eighth, and ninth issues, concern the jury’s findings on the

Deol family’s claims against New Prime for alleged negligent entrustment,

supervision, and training. More particularly, New Prime contends there is no

evidence of negligent entrustment and the trial court abused its discretion in

instructing the jury it could find New Prime liable if it found it negligently

supervised Gregory or negligently trained Gregory. In addition, New Prime argues

the trial court erred in submitting the negligent entrustment and the defective

negligent supervision and negligent training claims without giving a separate blank

for each in the liability and apportionment questions, thereby making it impossible

to know on what claim the jury found New Prime liable, thereby violating Crown

Life Insurance Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000).

In addition to asserting New Prime was negligent in entrusting a commercial

vehicle to Gregory and in its supervision and training of her, the Deol family claimed

New Prime was vicariously liable for Gregory’s actions. Under common law, an
–30–
employer is generally liable for the tort of its employee “when the tortious act falls

within the scope of the employee’s general authority in furtherance of the employer’s

business and for the accomplishment of the object for which the employee was

hired.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex.

2007) (internal quotation omitted). As stated in the trial court’s judgment, it was

undisputed at trial that Gregory was an employee of New Prime acting within the

scope of her employment when the collisions occurred. Indeed, in their proposed

jury charge, Gregory and New Prime stated:

Since NEW PRIME has admitted that its driver was in the course and
scope of her employment at the time of the alleged accident and is thus
vicariously liable for her negligence, if any, Plaintiffs’ claims against
NEW PRIME for respondeat superior and their direct negligence
claims for negligent training, supervision, entrustment, and other
alleged acts or omissions on the part of NEW PRIME have been
rendered moot.12

Consequently, New Prime is jointly and severally liable with Gregory for the

damages awarded to the Deol family. See Pierre v. Swearingen, 331 S.W.3d 150,

154–55 (Tex. App.—Dallas 2011, no pet.) (employer’s vicarious liability derivative

of and commensurate with that of employee).

The trial court rendered judgment against New Prime as jointly and severally

liable with Gregory for the entire amount of the judgment based on the company’s

12
Because New Prime stipulated that Gregory was acting within the course and scope of her
employment, a vicarious liability question was not necessary. Cf. Diamond Offshore Mgmt. v. Gudry, 171
S.W.3d 840, 844 (Tex. 2005) (holding where evidence did not conclusively show employee was acting
within scope of employment, instruction or question submitting issue to jury is prerequisite to imposition
of vicarious liability).
–31–
vicarious liability for Gregory’s actions, not on the jury’s finding concerning the

company’s direct negligence for entrusting a commercial vehicle to Gregory and in

supervising and training her. Because we have already concluded Gregory was

properly found liable for negligence, and New Prime’s liability is commensurate

with Gregory’s, it is unnecessary for us to address the alternative bases upon which

the jury found New Prime liable.

VII. Pain and Mental Anguish

In their tenth issue, Gregory and New Prime claim no evidence supports a

conclusion that Deol experienced conscious pain and suffering in connection with

his death. The standard of review for legal sufficiency challenges is set forth earlier

in our discussion of Gregory and New Prime’s first issue. We need not address

Gregory and New Prime’s assertion that the Deol family’s expert on pain and

suffering’s testimony was not reliable because other evidence, including eyewitness

Ondre Reynolds’s testimony, supports the jury’s decision to compensate Deol’s

estate for his pain and mental anguish.

In Texas, a party may recover damages only for pain that is consciously

suffered and experienced by the deceased. SunBridge Healthcare Corp. v. Penny,

160 S.W.3d 230, 248 (Tex. App.—Texarkana 2005, no pet.). The presence or

absence of physical pain is an inherently subjective question. Id. We may infer pain

and suffering from proof that the deceased had severe injuries. Id. In addition, pain

and suffering may be established by circumstantial evidence. Id.
–32–
 The evidence established Deol died of massive blunt force trauma injuries.

His head and chest were flattened when the Vasquez van ran over him. Reynolds,

the driver of another tractor-trailer, testified that he saw Deol lying in the road. He

described Deol as being in “agonizing pain” and “convulsing.” Reynolds stated,

“He was, like, shaking and stuff. Like in pain. He was in pain . . . . He was just

rolling around in pain.” Reynolds also stated he saw Deol moving and heard him

say “Oh,” indicating consciousness. Reynolds’s testimony, together with the

evidence concerning the traumatic injuries Deol sustained, is more than a scintilla of

competent evidence to support the jury’s finding Deol experienced conscious pain

and suffering. We overrule Gregory and New Prime’s tenth issue.

VIII. Non-Economic Damages

In their twelfth issue, Gregory and New Prime challenge the non-economic

damages awarded to the Deol family as a result of his death. The jury awarded

Deol’s six family members, including his wife, his three children, and his parents,

non-economic damages totaling $15,065,000. This figure excludes the $500,000

awarded to the estate for Deol’s pain and mental anguish. Broken down by damage

category and family member, the jury awarded the following.

Wife Son Son Daughter Mother Father

Loss of past $350,000 $160,000 $160,000 $160,000 $160,000 $160,000
companionship

Loss of future $2,625,000 $1,200,000 $1,200,000 $1,200,000 $160,000 $160,000
companionship

–33–
 Past mental $525,000 $160,000 $160,000 $5,000 $160,000 $160,000
anguish

Future mental $3,937,500 $925,000 $925,000 $92,500 $160,000 $160,000
anguish

Total $7,437,500 $2,445,000 $2,445,000 $1,457,500 $640,000 $640,000

Gregory and New Prime concede the Deol family suffered grief and loss as a

result of Deol’s death. But they contend the jury awards of non-economic damages

suffer four problems. First, Gregory and New Prime claim the awards are excessive

because they are disproportionate to the economic damages awarded to these

individuals. Second, they contend the damages awarded were not individualized

because some of the awards for certain categories of damages were consistent for

every member of the Deol family. Third, they argue that the damages awarded were

excessive compared to damages awarded or upheld in other wrongful death cases.

Finally, they argue that there is not legally or factually sufficient evidence to support

these awards and the awards were the result of improper closing argument. We

address each of these arguments in turn.

A. Economic vs. non-economic damages

With respect to Gregory and New Prime’s claim that the awards are excessive

because they are disproportionate to the economic damages awarded,13 they cite no

controlling authority to support a proportionality requirement in wrongful death

13
The jury awarded Deol’s wife $925,200, his older son, H.D., $139,800, his younger son, A.D.,
$141,000, his daughter, G.D., $145,800, and his parents $1,200 each in pecuniary damages.
–34–
cases, and we have found none. Rather, they rely heavily on Bentley v. Bunton, 94

S.W.3d 561 (Tex. 2002) to support their argument. But Bentley is a defamation case

brought by a public official, which necessitated a careful review of the non-

economic damage award to ensure it did not have a chilling effect on First

Amendment-protected speech. As the court noted, “[d]amage awards left largely to

a jury’s discretion threaten too great an inhibition of speech protected by the First

Amendment.” Id. at 605. With this in mind, the court considered the plaintiff’s $7

million mental anguish award and the $150,000 reputation damage award, and

concluded that there was “no evidence” that the plaintiff suffered mental anguish in

the amount of $7 million, “more than 40 times the amount awarded him for damage

to his reputation.” Id. at 607.

In addition to Bentley, appellants also rely on three other cases: Exxon

Shipping v. Baker, 554 U.S. 471 (2008); Bishop Abbey Homes v. Hale, No. 05-14-

01137-CV, 2015 WL 9167799 (Tex. App. – Dallas Dec. 16, 2015, pet. denied)

(mem. op.); and Gordon v. Redelsberger, No.02-17-00461-CV, 2019 WL 619186

(Tex. App. – Fort Worth Feb. 14, 2019, no pet.) (mem. op.). But, like Bentley, these

are not wrongful death cases. Baker addressed questions of maritime law related to

the Exxon Valdez oil spill. Baker, 554 U.S. at 475–76. Hale involved faulty

construction of the plaintiffs’ “dream home,” and this Court determined the ratio

between pecuniary and non-pecuniary damages did not support the mental anguish

damages awarded to the two plaintiffs. Hale, 2019 WL 619186, at *19. And
–35–
Redelsberger involved a confrontation in a parking lot in which the plaintiff suffered

a gash above his eye. The court in Redelsberger affirmed the jury’s award for past

and future physical pain and mental anguish, but it suggested a remittitur of damages

awarded for past and future physical impairment based on a lack of evidence of

losses resulting from any physical impairment. Redelsberger, 2019 WL 619186, at

*14–15.

Death is different. In wrongful death cases, the emotional impact of the loss

of a beloved person is the most significant damage suffered by surviving relatives.

Moore v. Lillebo, 722 S.W.2d 683, 685 (Tex. 1986). One can experience crushing

mental anguish and loss of companionship from the death of a family member even

without experiencing significant pecuniary loss. One has little, if anything, to do

with the other. As shown in our review of the evidence below, the focus is on the

relationship between the decedent and the survivor. Given that mental anguish and

loss of companionship are heavily dependent on the relationship between the

deceased and the beneficiary, we reject Gregory and New Prime’s proportionality

argument.14

14
We acknowledge that our sister court invoked a proportionality requirement in Lane v. Martinez, 494
S.W.3d 339 (Tex. App. – Eastland 2015, no pet.), a wrongful death case. The Lane court, however, based
its excessiveness determination on its conclusion that the jury simply picked numbers and put them in the
blanks. Id. at 350. Although it did refer to proportionality between pecuniary and non-pecuniary damages
as a “benchmark,” it considered proportionality alongside several other factors that supported its ultimate
conclusion that the non-pecuniary damages at issue in that case were improper because they were not the
result of an individualized analysis. Id. at 351. We also note that Lane is not binding on this Court, and to
the extent it suggests that courts of appeal should consider the ratio between economic and non-economic
damage in determining excessiveness of non-economic damages in wrongful death cases, we disagree; such

–36–
 B. Individualization of Awards

Next, Gregory and New Prime contend the damages awarded were not

individualized because some of the awards for certain categories of damages

awarded were consistent for every member of the Deol family. But, under some

circumstances, it may be proper to award similarly situated individuals like amounts.

See, e.g., JBS Carriers, Inc. v. Washington, 513 S.W.3d 703, 718 (Tex. App.—San

Antonio 2017) (rejecting defendants’ criticism that jury awarded all three adult

children “the same amount” for mental anguish and loss of companionship from their

mother’s death), rev’d on other grounds, 564 S.W.3d 830 (Tex. 2018).

Moreover, the record belies appellants’ contention that the jury simply picked

numbers and put them in the blanks. Guillermo Vasquez, Alma Perales, and Deol’s

wife, Jaswinder, were the three surviving spouses in this lawsuit. While the jury

awarded the three spouses the same amounts in past mental anguish ($525,000) and

past loss of companionship ($350,000), they awarded Guillermo significantly less in

future mental anguish and loss of companionship compared with Alma and

Jaswinder, apparently accounting for Guillermo’s poor health and advanced age.

This difference in treatment reflects a careful and sensitive analysis on the part of

the jury. As for Alma and Jaswinder, the jury could have determined that both

practice is contrary to decades of jurisprudence observing that mental anguish and loss of companionship
damages are unliquidated and incapable of precise mathematical calculation. Thomas v. Uzoka, 290 S.W.3d
437, 454 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (collecting cases).
–37–
women were entitled to similar figures – both had been without their husbands for

the same amount of time, both of their husbands were killed in the same manner,

both learned of their husbands’ deaths in tragic ways, both were left as widows with

children to raise and without the primary source of their household’s income, and

both women testified compellingly about the closeness of their relationships with

their respective husbands.

Deol left behind three young children, A.D., H.D., and G.D. At the time of

trial, A.D. and H.D. were 12 and 14 years old, respectively, and G.D. was 4 years

old. All three children were awarded the same amounts in past and future loss of

companionship. A claim for loss of companionship and society asks “what positive

benefits have been taken away from the beneficiaries by reason of the wrongful

death?” Lillebo, 722 S.W.2d at 688. It is entirely reasonable for the jury to conclude

the positive benefits lost would be similar for three young children of the same

father, who had been without him, and would be without him in the future, the same

amount of time. The evidence at trial established that Deol was a doting father who

was heavily invested in all three of his children’s lives, and the jury could have

determined that they were deprived of the same benefits because of his death and

this deprivation would continue their entire lives.

In comparison, the jury did not award the children the same past and future

mental anguish awards. G.D., who was an infant when Deol was killed, was awarded

significantly less than her brothers. While her brothers were each awarded $160,000
–38–
in past mental anguish, the jury awarded G.D. only $5,000. And, although her

brothers were awarded $925,000 in future mental anguish, G.D.’s award was one-

tenth of this amount, $92,500. The jury clearly considered the differing

circumstances of the Deol children and factored them into the awards.

Deol’s father, Darshan, and his mother, Jagtar, were each awarded $160,000

across all categories of non-economic damages. The fact that the amounts are equal

does not mean they were random or a product of the jury failing to properly

deliberate on the amounts each party was entitled to recover. Instead, the equal

amounts may easily reflect the similarities of the parents’ situations including their

ages (71 and 75 at the time of trial) and that they both lived with Deol and his family

at the time of his death.

We accord respect to a jury’s award of non-economic damages when the

record demonstrates careful consideration of what amounts to assess. A jury

demonstrates this level of care where, as here, it awards different claimants different

amounts for different categories of non-economic damages. Serv. Corp. Int’l v.

Aragon, 268 S.W.3d 112, 121–22 (Tex. App. – Eastland 2008, pet. denied). Overall,

we find that the jury exercised the requisite level of care in determining the non-

economic damage amounts awarded to each member of the Deol family and we

reject Appellants’ argument that the jury simply picked numbers at random and filled

them in the blanks.

–39–
 C. Comparison with other wrongful death cases

Gregory and New Prime also argue that comparing the awards made in this

case with awards in similar cases confirms that these awards are excessive.

Appellants reference several cases involving “similar circumstances: the death of a

spouse, father, and adult child,” and argue generally that the awards at issue are

higher than the average awarded in those cases. But each award of non-economic

damages is a unique exercise of the jury’s discretion. Primoris Energy Servs. Corp.

v. Myers, 569 S.W.3d 745, 760 (Tex. App.—Houston [1st Dist.] 2018, no pet.)

(“‘Because the measure of damages in a personal injury case is not subject to precise

mathematical calculation, each case must be measured by its own facts, and

considerable latitude and discretion are vested in the jury . . . Therefore, comparison

with other cases or amounts of verdicts is ‘generally of little or no help.’” (quoting

U-Haul Int’l., Inc. v. Waldrip, 322 S.W.3d 821, 855-56 (Tex. App.—Dallas 2010),

rev’d in part, 380 S.W.3d 118 (Tex. 2012); see also Emerson Elec. Co. v. Johnson,

601 S.W.3d 813, 845 (Tex. App.—Fort Worth 2018, pet. granted) (mem. op.) (each

case must be measured by its own facts, and because appropriateness of award turns

on specific facts of case, “referencing the amounts awarded in other cases is of

limited help to a court reviewing the sufficiency of the evidence to support an

award.”); George Grubbs Enters., Inc. v. Bien, 881 S.W.2d 843, 858 (Tex. App.—

Fort Worth 1994) (comparisons with other cases or verdicts of little help because

same loss will result in different damages to different individuals), rev’d on other
–40–
grounds, 900 S.W.2d 337 (Tex. 1995); Harris v. Balderas, 949 S.W.2d 42, 44 (Tex.

App.—San Antonio 1997, no writ) (explaining there is no certain standard by which

personal injury damages can be measured; each case must stand on own facts and

circumstances, and comparison with other cases on amounts of verdicts is of little or

no help).

Other wrongful death cases are informative only insofar as those cases

identify relevant factors that can indicate a particular damage award is excessive in

light of the evidence presented. Critical Path Res., Inc. v. Cuevas, 561 S.W.3d 523,

568 (Tex. App.—Houston [14th Dist.] 2018, pet. granted, judgm’t vacated w.r.m.).

For example, an award of mental anguish damages may be considered excessive if

there is little evidence to show the nature, duration, or severity of the anguish. See

id. Because each award must be measured against its own supporting facts, however,

a simplistic comparison of the amounts awarded in this case to the amounts awarded

in other cases is of no analytical or persuasive value. See id. To successfully mount

a challenge to the amount of the award, appellants were required to apply the factors

identified in the cases they cite and explain how they show that the awards in this

case are excessive based on the facts presented. Id. Appellants made no attempt to

do this. The mere fact that the cases they cite are wrongful death cases involving

damage awards to family members does not, by itself, explain why the awards in

those cases dictate a lesser amount is appropriate here.

–41–
 D. Legal and Factual Sufficiency

Appellants claim that, rather than awarding damages based on specific

evidence presented, the jury appears to have started with the $39 million figure

counsel for the Vasquez/Perales family suggested in closing argument and worked

backwards. In his argument, counsel stated: “But if you don’t like any of the [earlier]

analysis with respect to damages, then think about it this way . . . [J]ust give them

your two cents’ worth . . . six cents a mile for the six hundred and fifty . . . million

miles they traveled in the year that they took these people’s lives. . . . Just give them

your two cents’ worth. That’s $39 million.” The jury awards to both the

Vasquez/Perales and Deol families totaled $38,801,775. We first address

appellants’ argument that the non-economic damage awards in this case were the

result of improper closing argument and then review the awards under the applicable

standard of review.

1. Counsel’s statement

The above statement, made by counsel for the Vasquez/Perales family, came

in without objection and without comment by counsel for Gregory and New Prime

during their closing argument. This statement was one of many arguments counsel

made concerning damages during closing argument, including, but not limited to,

the following:

The instruction is to compensate in this case. And that is your
juror’s call to action. The action required is to equalize the money
with the harms and the losses. The word “compensate” in trial
–42–
 means to balance. And the requirement to compensate means that
the weight of the harm must be balanced by the weight of the
compensation. And the law in every courthouse in America says
nothing goes on the scale but the losses and harms caused by
negligence, no outside reason. Your most important job is to
make sure everyone follows that law.

. . . This is important because if your verdict is for less than the
full and fair amount that equalizes the harms, if your verdict is
some symbolic amount or some token amount or anything less
than the full measure of losses and harms, if you take any outside
reason into account even a little, then the law has not been
fulfilled.

And what are the harms and losses in this case? You’ve heard the
evidence. You’ve met the family and heard about what used to
be, a wife and a mother gone, a husband and a father gone,
incredible pain, physical and emotional suffering, the loss of a
limb, the drastic changes to all of their lives.

And when I think of Guillermo and his injuries and when I think
of Guillermo and losing his wife and his son-in-law, and when I
think of William and Alma losing their mother, and when I think
of Alma losing her husband, and Noah and Elijah losing their
father and their grandmother and an entire generation, two
generations of family wiped out and a family destroyed and losses
that will go on for (unintelligible), in some cases a combined 50
years, I can’t imagine that you wouldn’t consider the total for
those losses somewhere between 30- and 40 million. But that is
my suggestion. It is my obligation to give you that. It is your
decision and your decision alone. You might think more; you
might think less. That would be your call, but that’s my suggestion
of awarding to these folks.

(Emphasis added).

Clearly then, although counsel for the Vasquez/Perales family made the

complained-of statement which culminated in a suggestion that the jury award $39

million, that statement must be considered in the context of counsel’s preceding
–43–
remarks that accurately set out the standards and factors applicable to non-economic

damages. Counsel’s comment regarding “six cents a mile” put into perspective the

$30 million to $40 million amount he suggested the plaintiffs were entitled to receive

based on the facts presented. In addition, counsel for appellees addressed the

appropriate factors relevant to non-economic damages during both voir dire and

opening statements. Finally, the jury charge correctly instructed the jury on the law

to consider in awarding non-economic damages, and unless the record demonstrates

otherwise, we presume the jury followed these instructions. Golden Eagle Archery,

Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex. 2003). Appellants point to nothing in

the record nor any authority that would provide a rational basis for us to conclude

that the complained-of statement led the jury to make its decisions on an improper

basis or affected the jury’s award of non-economic damages in this case.

2. Sufficiency of the Evidence

In determining whether damages are excessive,15 we employ a factual

sufficiency analysis. Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986) (per curiam);

Balbuena v. Balbuena ex rel. Balbuena, No. 05-02-00459-CV, 2002 WL 31646678,

at *3 (Tex. App.—Dallas Nov. 25, 2002, no pet.) (not designated for publication).

We can set aside a verdict only if it is so contrary to the overwhelming weight of the

15
Appellants concede that members of the Deol family experienced some mental anguish and loss of
companionship such that these questions were correctly submitted to the jury. Appellants challenge only
the amounts of the awards contending they were excessive.
–44–
evidence that the verdict is clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d

770, 772 (Tex. 1996). The nebulous issues of mental anguish and loss of

companionship and society are “inherently somewhat imprecise.” Uzoka, 290

S.W.3d at 454. Because these damages are unliquidated and incapable of precise

mathematical calculation, once the existence of non-economic loss is established,

the jury is given significant discretion in fixing the amount of the award. Id. We

take that into account when we conduct a meaningful review of the quantum of any

such award. Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.

1996). Juries must find an amount that would fairly and reasonably compensate for

the plaintiffs’ loss.

Damages at Issue

In wrongful death cases, mental anguish damages and loss of companionship

and society damages both compensate for non-economic losses. Lillebo, 722

S.W.2d at 687. Mental anguish is concerned not with the benefits the claimants have

lost, but with the direct emotional suffering experienced as a result of the death. Id.

at 688. Compensation for mental anguish can be awarded only for such anguish that

causes “substantial disruption in daily routine” or “a high degree of mental pain and

distress.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). However,

in wrongful death cases, proof of mental anguish does not require evidence of

physical symptoms such as sleeplessness, weight loss, nervousness, personality

changes, and the like. Lillebo, 772 S.W.2d at 686–87. Proof of the familial
–45–
relationship alone “constitutes some evidence” of the mental anguish a surviving

family member experiences when another member dies. Id. at 686.

While mental anguish focuses on the negative impact the wrongful death had

on the beneficiaries, a claim for loss of companionship and society asks “what

positive benefits have been taken away from the beneficiaries by reason of the

wrongful death?” Id. at 688. Damages for loss of companionship and society are

intended to compensate the beneficiary for the positive benefits flowing from the

love, comfort, companionship, and society that the beneficiary would have received

had the decedent lived. Id. at 687–88. In awarding damages for mental anguish and

loss of companionship in a wrongful death case, the jury may consider (1) the

relationship between husband and wife or a parent and child; (2) the living

arrangements of the parties; (3) any absence of the deceased from the beneficiary for

extended periods; (4) the harmony of family relations; and (5) common interests and

activities. Id. at 688. The jury charge in this case properly instructed the jury on

these factors.

Trial Testimony Relevant to the Awards

The evidence presented at trial established Deol was 45 years old at the time

of his death and his life expectancy was 78.4 years. Accordingly, had Deol survived

the accident, he was expected to live another 33 years. Deol’s wife, Jaswinder,

testified regarding the effect of Deol’s death on her and her family members and

–46–
about the positive influences Deol had on them.16 See Woodruff, 901 S.W.2d at 444

(mental anguish evidence can come from testimony of third parties).

Counsel’s questioning of Jaswinder spans over fifty pages of the reporter’s

record. Jaswinder testified that she and Deol first met in India when she was 16 or

17 years old. Deol courted her for a year before she would speak to him and they

began dating. Eventually, Jaswinder’s family moved to Canada and Deol’s family

moved to the United States. Jaswinder’s parents wanted an arranged marriage for

her with someone else, but she and Deol loved each other and fought for their

relationship. She stated that, throughout her and Deol’s struggle for acceptance with

her family, she knew they were meant to be.

Jaswinder and Deol had three children together, and she described their family

as very close. They enjoyed many activities and traveling together. Jaswinder

worked part-time, and Deol was the primary financial provider for their extended

family that included Deol’s parents, who lived with them. Deol “did everything” for

the family. He loved cooking and working in the garden, and he would help out

around the house. Jaswinder and Deol were “very, very close.” He was “everything”

to her and was her “best friend.” Even when he was on the road working, Jaswinder

would call and consult with him about “every single thing.” Even now, when she’s

16
Jaswinder testified the children were at home in Bakersfield, California with their grandparents. She
explained she did not bring the children to court because she did not want them to hear about the accident.
She stated it was hard for her to be there.
–47–
stressed, she finds herself talking to Deol. Deol had been excited to experience their

children’s milestones, and she misses Deol every time her children do something

memorable, like when G.D. crawled for the first time. She stated she “misses

everything” about her husband.

The night of the accident Jaswinder tried calling Deol a “hundred times.” She

was concerned because he always answered her calls on the first ring. The following

evening, Jaswinder arrived home from work to find the house full of relatives. The

police had earlier informed Deol’s father that Deol had been killed, but the family

did not want to tell Jaswinder because they were afraid she would become hysterical

in front of the children. When Jaswinder learned the police had come by, she became

worried. She began calling hospitals in Texas looking for Deol. Eventually she

found a business card with the phone number for the local police, and she called and

left a message. Shortly thereafter, someone returned her call and told her that Deol

had been killed. She described that moment as “the saddest moment of her life.”

She has no memory of what happened next, and she doesn’t remember how her

children learned their father was dead. At the funeral she “was out of [her] mind.”

She stated she could not recall the funeral or how she got there.

Consistent with tradition, Jaswinder and the family traveled to India to spread

Deol’s ashes in a river. Although it is also tradition to pass out the deceased’s

clothing to the poor, Jaswinder could not bring herself to part with Deol’s

–48–
belongings, and she bought new clothes for the poor instead. Jaswinder stated she

saved all of Deol’s belongings, including his electric razor that still has his hair in it.

Since Deol supported the family, they could not afford to keep their house

after his death. Jaswinder was forced to relocate the family from Maryland to

California so that she could work for Deol’s brother. She stated they can no longer

pay for the things they used to enjoy.

Jaswinder began taking anti-depressant medication, which she was still taking

at the time of trial. She described Deol as “the love of her life,” and she misses him

“every single moment.” She said the home environment is “very sad” and Deol’s

death “destroyed” her family. They no longer celebrate birthdays and she sometimes

misses parent-teacher conferences because they are too difficult without Deol.

When the children learned of Deol’s passing, H.D., the oldest, sat with

Jaswinder and held her. A.D. went to his room and would not talk to anyone. H.D.

and A.D. were very attached to Deol, whom Jaswinder described as a loving father.

Before Deol’s death, H.D. was happy. Now he is in pain and very quiet. He does

not talk much and stays to himself. Jaswinder stated he no longer has a role model.

H.D. was given two tickets to his middle school graduation. He brought one ticket

home telling Jaswinder “we do not need two.” He then went to his room and cried.

Deol and H.D. used to play video games, ride bikes, and play basketball. Deol used

to put H.D. and A.D. to bed, and he would stay with them until they fell asleep.

–49–
 Since Deol’s death, A.D. has gained a lot of weight. He was more active

before Deol’s death because he and Deol often did things together. Now A.D. just

sits with Jaswinder and reads. He seems depressed most days and frequently talks

about his dad. A.D. was in a gifted program in Maryland, but after they moved to

California, advanced classes were no longer an option because of the expenses

involved. Jaswinder stated they also do not travel anymore because she does not

like to drive on the highway and they do not have enough money. Both boys

continue to cry out for their father.

G.D. was seven months old when Deol died. Deol loved G.D. deeply, and

when she was born he would not allow other family members to hold her. Jaswinder

testified that G.D. notices other children have fathers and she asks frequently about

hers. G.D. sees pictures of Deol in the house and asks when he’s coming home, and

whether they are going to go pick him up from the airport. Jaswinder stated she

can’t bring herself to face G.D. when she asks about her dad and, when G.D. notices

that her questions make Jaswinder sad, she will stop asking. According to Jaswinder,

G.D. recognizes the family is struggling financially and when she sees things in the

store that she wants, she will say it is too expensive, even when Jaswinder is willing

to buy it for her.

At the time of Deol’s death, Deol’s mother, Jagtar, was 71 years old and his

father, Darshan, was 75. Deol and Jagtar were very close. They used to cook and

garden together. Since Deol’s death, she cries multiple times every day. Darshan
–50–
learned of his son’s death from the police officer who visited the house. He arranged

to have his son’s body transported back to Maryland for the funeral, and he traveled

with Jaswinder to India to spread his son’s ashes. While Darshan does not cry in

front of Jaswinder, she explained that since Deol’s death, the entire family’s living

environment is sad and everything has changed.

Jury Instructions

The jury instructions defined loss of companionship and society to mean “the

loss of the positive benefits flowing from the love, comfort, companionship, and

society that [each Deol family member], in reasonable probability, would have

received from Bhupinder Singh Deol had he lived.” The instructions also defined

mental anguish as “the emotional pain, torment, and suffering experienced by [each

Deol family member] because of the death of Bhupinder Singh Deol.” The trial

court further instructed the jury that it could consider the relationship between Deol

and each Deol family member, their living arrangements, any extended absences

from one another, the harmony of their family relations, and their common interests

and activities. See Lillebo, 722 S.W.2d at 688 (describing these elements for jury’s

consideration in wrongful death cases). The trial court also instructed the jury not

to include damages for one element in the others.

Under Golden Eagle Archery, we must presume that the jury followed these

instructions and did not award damages for one element more than once unless the

record shows otherwise. 116 S.W.3d at 771. Thus, in determining the damages, the
–51–
jury charge permitted the jury to make its own determination of how to categorize

and compensate the Deol family based on the evidence presented about the damages

caused to the family because of Deol’s death. Id. at 770.

Jaswinder

The jury awarded Jaswinder $350,000 in loss of past companionship,

$2,625,000 in loss of future companionship, $525,000 in past mental anguish, and

$3,937,500 in future mental anguish, for a total of $7,437,500 in non-economic

damages. Appellants do not specify which of these awards they believe to be

excessive, nor do they specify in what respect the evidence is lacking to support

these different awards. Appellants did not subject Jaswinder to cross-examination,

nor did they address any of the plaintiffs’ damages in their closing argument.

Appellants’ motion for judgment notwithstanding the verdict simply alleged there

was “no evidence” to support each category of damages for each plaintiff.

The evidence presented established Jaswinder had a long and loving

relationship with Deol, and she was dependent on him both financially and

emotionally. From the evidence presented, the jury could have found Jaswinder and

Deol had an extremely harmonious relationship and shared the love of their family

and the nurturing and education of their children. In addition, the evidence supports

a finding that Jaswinder has suffered tremendous grief and depression since Deol’s

death, and that her grief had not waned over the years. Gregory and New Prime

concede that the way Jaswinder learned of her husband’s demise was tragic. Her
–52–
testimony established she was left to wonder for over a day where he was and what

had happened to him and that she was devastated when she learned of Deol’s death.

The evidence showed Deol’s death significantly and permanently changed

Jaswinder’s life. She no longer has Deol to provide emotional and financial support.

The jury could have reasonably concluded Jaswinder and Deol had a very special,

symbiotic relationship, the loss of which is likely to leave long-lasting emotional

devastation. See, e.g., Transco Leasing Corp. v. United States, 896 F.2d 1435, 1453

(5th Cir.), amended on other grounds on rehearing, 905 F.2d 61 (5th Cir. 1990).

Accordingly, we conclude the evidence supporting Jaswinder’s mental anguish and

loss of companionship damages more than satisfies the Lillebo factors for reviewing

awards for excessiveness. Jaswinder’s testimony was thorough, detailed, non-

conclusory, and compelling, and the jury’s awards were not so contrary to the

overwhelming weight of the evidence that the verdicts were clearly wrong and

unjust.

Deol’s Children17

A.D. was 8 years old and H.D. was 10 years old when Deol died. According

to the trial record, Deol was very close to both his sons. Both boys have

demonstrated significant and continuing grief over Deol’s death. The boys no longer

17
It is unclear which non-economic damage awards appellants challenge, but in their opening brief
appellants complain that there was no evidence revealing “true mental anguish” for Deol’s children. In
their supplemental briefing, appellants complain that the lost companionship awards for Deol’s children
were identical and the jury gave the same amount for their mental anguish damages.
–53–
enjoy their father’s guidance and companionship, and they cannot afford to do the

things they used to do. From the evidence presented, the jury could have reasonably

concluded Deol’s death had a profound and lasting impact on H.D. and A.D. Again,

the evidence developed at trial supports the Lillebo factors, and the jury’s awards to

H.D. and A.D. of $160,000 for loss of past companionship, $160,000 for past mental

anguish, $925,000 for future mental anguish, and $1,200,000 for loss of future

companionship were not so contrary to the overwhelming weight of the evidence as

to be clearly wrong and unjust.

With respect to G.D., while she was situated differently than her brothers

because she was an infant at the time of Deol’s death, there was evidence that she

has experienced mental anguish and loss of companionship due to the loss of her

father. Jaswinder testified Deol was extremely protective of G.D. from the time she

was born. The jury could infer from this that G.D. bonded with Deol and he provided

a sense of security that was no longer present after he died. Along with the evidence

that G.D. was aware of, and troubled by, the absence of her father, the jury was free

to consider the emotional turmoil and other disruption that Deol’s death caused in

the home. While the evidence concerning G.D.’s mental anguish was not as fully

developed as it was for her brothers, the jury’s award of only $97,500 in past and

future mental anguish accounted for this.

As to loss of companionship and society, the record established Deol was a

loving father and provided financial and emotional support to his family and
–54–
promoted the education of his children. While G.D. was young at the time of Deol’s

death, the jury could have reasonably concluded her loss of the companionship and

society of Deol was no less than that of her brothers. Accordingly, we conclude the

jury’s award of $1,360,000 to G.D. for past and future loss of companionship and

support is not clearly wrong or manifestly unjust.

Deol’s Parents

The evidence established Deol’s parents lived with Deol and his family. Four

years after Deol’s death, his mother still cries every day. Given the manner in which

Deol died, the closeness between Deol and Jagtar, and the severe emotional distress

she exhibited, we conclude a reasonable jury could conclude she suffered significant

mental anguish and a loss of companionship as a result of Deol’s death.

While we acknowledge there was less testimony specific to Deol’s father, the

jury was free to consider the general testimony about how the whole family was

living together in one house and that the household as a whole was “destroyed” by

Deol’s death. In addition, the jury heard how Darshan was the first to learn of his

son’s death from the police officer who visited the house and how he felt he had to

keep this information from Jaswinder. It was Darshan who arranged to have his

son’s body transported back to Maryland, and he made the long trip with Jaswinder

to India for the solemn purpose of spreading Deol’s ashes. Because Deol was the

family’s primary caretaker, the entire family was forced to move cross-country so

that Jaswinder could find full-time work. Finally, Darshan has had to watch his wife
–55–
cry multiple times a day, every day, since their son was killed. The fact that Deol’s

father may not have expressed his grief in the same manner as the other members of

his family, did not preclude the jury from finding he has suffered, and will continue

to suffer, equally.

It is uniquely the province of the jury to quantify matters of non-economic

damages. See United Rentals N. Am., Inc. v. Evans, No. 05-18-00665-CV, 2020 WL

4783190, at *12 (Tex. App.—Dallas Aug. 18, 2020, pet. filed). “As long as there is

sufficient probative evidence to support the jury’s verdict, this Court will not

substitute its judgment for that of the jury.” Id. In the absence of a showing that

passion, prejudice, or other improper motive influenced the jury, the amount

assessed by it will not be set aside as excessive. Id. A large award, in and of itself,

does not show that the jury was influenced by passion, prejudice, sympathy, or other

circumstances not in evidence. Id. For us to reverse an award, it must be flagrantly

outrageous, extravagant, and so excessive that it shocks the judicial conscience.

None of the awards at issue here meet this criteria. We conclude the evidence

supports the amounts awarded to each member of the Deol family.

IX. Cumulative Error

In their final issue, Gregory and New Prime contend the cumulative effects of

the matters they assert as the trial court’s errors in this case requires reversal and

remand for a new trial. Texas courts recognize the doctrine of cumulative error,

wherein a reviewing court may reverse a lower-court judgment when the record
–56–
shows a number of instances of error, “no one instance being sufficient to call for a

reversal, yet all the instances taken together may do so.” Sproles Motor Freight

Lines, Inc. v. Long, 168 S.W.2d 642, 645 (Tex. 1943). To support reversal based on

cumulative error, a complaining party must show that “based on the record as a

whole, but for the alleged errors, the jury would have rendered a verdict favorable

to it.” Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 570 (Tex.

App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998).

Here, Gregory and New Prime contend that the combination of the trial court’s

striking responsible third parties, failing to submit a charge instruction on

unavoidable accident, and submitting improper broad form jury questions on

negligent entrustment, negligent training, and negligent supervision, probably

caused the rendition of an improper verdict. As discussed above, we have concluded

there is no error in regard to Gregory and New Prime’s complaints. When there are

no errors to be considered as a combined whole for purposes of evaluating harm, we

reject cumulative error arguments. In re BCH Dev., LLC, 525 S.W.3d 920, 930 (Tex.

App.—Dallas 2017, orig. proceeding) (citing Caro v. Sharp, No. 03-03-00108-CV,

2003 WL 21354602, at *8 (Tex. App.—Austin June 12, 2003, pet. denied) (mem.

op.)).

–57–
 CONCLUSION

We overrule Gregory and New Prime’s first through tenth and twelfth through

thirteenth issues. We affirm the trial court’s judgment.

/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE

Whitehill, J., concurring in part and dissenting in part, joined by Richter, J.

Schenck, J., concurring in part and dissenting in part, joined by Browning, J. and
Richter, J.

180167F.P05

–58–
 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

SARAH GREGORY AND NEW On Appeal from the County Court at
PRIME, INC., Appellants Law No. 5, Dallas County, Texas
Trial Court Cause No. CC-15-02925-
No. 05-18-00167-CV V. E.
Opinion delivered by Justice
JASWINDER CHOHAN, Reichek. Court sitting en banc.
INDIVIDUALLY AND AS NEXT
FRIEND AND NATURAL
MOTHER OF G.K.D., H.S.D., AND
A.D., MINORS, AND AS
REPRESENTATIVE OF THE
ESTATE OF BHUPINDER SINGH
DEOL, DARSHAN SINGH DEOL,
AND JAGTAR KAUR DEOL,
GUILLERMO VASQUEZ,
WILLIAM VASQUEZ,
INDIVIDUALLY AND AS
ADMINISTRATOR OF THE
ESTATE OF ALMA B.
(“BELINDA”) VASQUEZ, ALMA
J. PERALES, INDIVIDUALLY
AND AS ADMINISTRATOR OF
THE ESTATE OF HECTOR
PERALES AND AS NEXT FRIEND
OF MINOR N.P., Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

–59–
It is ORDERED that appellees JASWINDER CHOHAN, INDIVIDUALLY AND
AS NEXT FRIEND AND NATURAL MOTHER OF G.K.D., H.S.D., AND A.D.,
MINORS, AND AS REPRESENTATIVE OF THE ESTATE OF BHUPINDER
SINGH DEOL, DARSHAN SINGH DEOL, AND JAGTAR KAUR DEOL
recover their costs of this appeal and the full amount of the trial court’s judgment
from appellants SARAH GREGORY AND NEW PRIME, INC. and from Atlantic
Specialty Insurance Company as surety on appellants, supersedeas bond.

Judgment entered November 30, 2020

–60–