COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
DENNIS EDWARD RAYNER,
§
EVEN BETTER LOGISTICS, LLC, and
No. 08-20-00145-CV
MICHELLE CORA CROOM,
§
Appeal from the
Appellants,
§
353rd District Court
v.
§
of Travis County, Texas
RONNIE CLAXTON and
§
SANDRA CLAXTON,
(TC# D-1-GN-19-000281)
§
Appellees.
CONCURRING AND DISSENTING OPINION
I concur in part and dissent in part. I agree with the majority’s conclusions with one notable
exception, which I discuss more fully. Differing from the majority, I would conclude there is
sufficient evidence that EBL’s independent acts of ordinary negligence caused Claxton’s injuries,
thus supporting the jury’s finding of joint and several liability and the award of compensatory
damages. For this reason, I disagree with the majority’s conclusion number “2,” which reverses
the trial court’s judgment and renders judgment in favor of EBL regarding any individual acts of
negligence. I would affirm the judgment holding EBL directly liable for negligence and awarding
compensatory damages in favor of the Claxtons.
To prevail on their negligent maintenance claim, the Claxtons had to prove that EBL failed
to properly maintain its vehicle, and that such failure proximately caused Claxton’s injuries. Serv-
Air, Inc. v. Profitt, 18 S.W.3d 652, 657 (Tex.App.—San Antonio 1999, pet. dism’d by agr.). The
majority concludes the evidence showed EBL clearly breached its duty of care owed to the
Claxtons; and it was foreseeable that the poorly maintained vehicle, with several out-of-service
violations, would pose a dangerous hazard to other drivers on the road such that it could cause
accidents and even loss of life. Despite these conclusions, the majority ultimately concludes that,
although it was a foreseeable risk of harm, EBL’s failure to maintain its vehicle was not the cause-
in-fact of Claxton’s injuries.
Here, the jury was instructed on the definition of proximate cause:
“Proximate cause” means a cause that was a substantial factor in bringing about an
occurrence, and without which cause such occurrence 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 occurrence or some
similar occurrence might reasonably result therefrom. There may be more than one
proximate cause of an occurrence.
As the ending line of the instruction states, there can be more than one proximate cause of
an occurrence. It is well recognized that “[t]here can be concurrent proximate causes of an
accident.” Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). To be the proximate cause
of an injury, the actor’s breach need not be the last cause or even the cause committed immediately
preceding the injury. Gregory v. Chohan, 615 S.W.3d 277, 295 (Tex.App.—Dallas 2020, pet.
filed). Rather, “[a]ll persons whose negligent conduct contributes to the injury, proximately
causing the injury, are liable.” Travis, 830 S.W.2d at 98.
Unlike the majority, I agree with Appellees’ argument that Rayner’s negligent acts were
simply a continuing and cooperating cause of the injuries sustained by the Claxtons, along with
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EBL’s original acts of negligence. In other words, EBL’s failure to maintain the vehicle coexisted
with the additional acts of Rayner such that EBL cannot excuse its own negligence by pointing
solely at Rayner as a new and independent cause of the injuries. Here, Rayner’s negligent driving
was one proximate cause of the crash, acting concurrently with another cause: that is, EBL’s failure
to maintain a safe vehicle. See Travis, 830 S.W.2d at 98.
There is no dispute that EBL should never have allowed Rayner to leave their yard with
the vehicle having deficiencies including a defective brake and several worn tires. Officer Flippin
testified he had noted seven out-of-service violations, explaining they were “serious or hazardous
enough that a vehicle cannot be allowed or should not be allowed to continue down the highway.”
Rayner’s negligence was not a new or independent cause that intervened between EBL’s breach
and Claxton’s injuries such as to disrupt the chain of causation. Stanfield v. Neubaum, 494 S.W.3d
90, 97–98 (Tex. 2016). Rayner taking a wrong route or failing to pull over or turn around only
contributed to the already existing danger created by EBL’s conduct.
The majority concludes, because there was no expert or lay testimony evidencing when
Rayner applied the brakes, “the jury would have to make assumptions about the timeline of the
accident that were not developed at trial and which the evidence directly contradicts.” I disagree
that such testimony was needed for Claxton to otherwise establish that EBL’s negligence had
operated concurrently with Rayner’s negligence. Based on the instruction given to the jury on
proximate cause, and the deference we are required to give to jury findings, I would conclude the
evidence was sufficient to support the jury’s verdict. See Osterberg v. Peca, 12 S.W.3d 31, 55
(Tex. 2000)(holding we must view the evidence in the light most favorable to the verdict in the
context of the unchallenged definitions and instructions submitted to the jury); Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)(holding appellate courts may not
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substitute its judgment for the fact finder's, even if it would reach a different answer on the
evidence). Here, the evidence was sufficient for the jury to determine within a reasonable degree
of probability that Claxton’s injuries would not have occurred but for EBL’s negligence. See
Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970).
Lastly, the Appellants did not present a complaint, at trial or on appeal, on the broad-form
of the jury charge. Rather, Appellants ask this Court to render a take-nothing judgment on all direct
liability claims but to remand for a new trial on all surviving, vicarious liability claims. (ant br,38)
However, because I would conclude the evidence was sufficient to support an affirmative finding
of EBL’s negligence through a negligent maintenance theory, I would affirm the trial court’s
judgment against EBL on direct negligence. I otherwise agree with the majority’s conclusion to
reverse and render a take-nothing judgment as to the claims against Croom, the gross negligence
claim against EBL, and the gross negligence claim against Rayner.
GINA M. PALAFOX, Justice
August 31, 2022
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