Dennis Edward Rayner, Even Better Logistics, LLC, and Michelle Cora Croom v. Ronnie Claxton and Sandra Claxton

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

DENNIS EDWARD RAYNER, §
EVEN BETTER LOGISTICS, LLC, and
MICHELLE CORA CROOM, § No. 08-20-00145-CV

Appellants, § Appeal from the

§ 353rd District Court
v.
§ of Travis County, Texas
RONNIE CLAXTON and
SANDRA CLAXTON, § (TC# D-1-GN-19-000281)

Appellees. §

OPINION

Appellants, Dennis Edward Rayner, Even Better Logistics, LLC (EBL), and Michelle Cora

Croom, appeal the trial court’s judgment against them for personal injury and exemplary damages

arising out of an accident involving a truck carrying an over-height load, colliding with a highway

overpass, injuring Appellee, Ronnie Claxton, who was traveling behind the truck on the roadway.

Claxton and his wife, Appellee Sandra Claxton, sued for personal injury damages under various

theories of direct negligence and vicarious liability against Rayner, the driver of the truck carrying

the over-height load; EBL, Rayner’s employer and the owner of the truck; and Croom, a fifty

percent owner and member-manager of EBL. Following a trial, the jury found Rayner, Croom,

and EBL each partially responsible for causing the accident and awarded economic damages to
Appellees, as well as exemplary damages against each Appellant for gross negligence.

Appellants filed a motion for judgment notwithstanding the verdict and motion for new

trial, alleging legal and factual insufficiency of the evidence to support the jury’s findings of

liability against each defendant, to include the findings of gross negligence. Appellants also argued

the damages amounts were unsupported by the evidence, and the evidence was unconstitutional.

We reverse and render judgment in favor of Croom on all theories of liability alleged

against her and reverse and render in favor of EBL on Appellees’ claims for negligent entrustment;

negligent maintenance; and negligent hiring, training, and supervising. We likewise reverse and

render in favor of Rayner on Appellees’ gross negligence claim. We also reverse and remand for

new trial on Appellees’ claims against Rayner and their claim for respondeat superior against EBL

based on inadequate jury instruction and improper submission of jury questions on liability and in

the interest of justice.

FACTUAL BACKGROUND

Accident Facts

On April 5, 2017, Rayner, a truck driver for EBL, was hauling an oversized load of oilfield

spools from Dayton to Midland. The Texas Department of Transportation (TxDOT) requires

oversized loads to obtain a special permit, which contains a specific route the driver must take. As

Rayner approached Austin heading west on U.S. 290, he mistakenly took the exit going east on

U.S. 183 instead of west as the TxDOT directions required. He drove several miles in the wrong

direction on U.S. 183 before he realized his mistake. Once he realized his error, Rayner was

required to pull to the shoulder of the road, exit the roadway, or turn around. However, according

to Rayner, construction in the area eliminated the shoulder from the roadway and he was unable

to pull over. The construction also prevented him from turning around, per his recollection. As he

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continued eastbound on U.S. 183, part of the oversized load struck the underside of an overpass

for State Highway 71. Rayner did not notice the bridge or the height sign on the bridge until it was

“too late.” Rayner stepped on the brakes, which engaged, but he was unable to avoid the load

hitting the overpass. A part of the load came off the trailer and struck the windshield of Appellee

Ronnie Claxton’s passenger truck, who was driving behind Rayner’s truck.

Procedural History

Appellees filed their original petition against Appellants on January 15, 2019, seeking

damages for personal injury. They later filed an amended petition, which was Appellees’ live

pleading at the time of trial. In their amended petition, Appellees asserted the following claims:

• Respondeat superior against EBL and Croom, alleging EBL and Croom were
responsible for all acts or omissions of their agents;

• Negligence against all three Appellants for various failures in the use of ordinary care
in operating a vehicle;

• Negligence per se against all three Appellants for violations of Texas state law in failing
to adhere to restrictions related to overweight and over-height loads;

• Negligent entrustment against EBL for entrusting its vehicle to Rayner despite his
alleged incompetence to operate the vehicle safely;

• Single business enterprise/joint venture against all three Appellants, claiming the three
“integrated their resources to achieve a common business purpose,” out of which arose
the accident which is the subject of the suit;

• Gross negligence against all three Appellants, alleging their “operat[ion] [of] a motor-
vehicle with reckless disregard of the rights of others . . . was a proximate cause of the
damages suffered by [Appellees].”

Appellees sought personal injury damages for past and future physical pain, past and future

emotional suffering and mental anguish, past and future disfigurement, future medical expenses,

past lost wages, future loss of earning capacity, past and future physical impairment, past and

future loss of enjoyment of life, loss of consortium, and loss of household services. Appellees also

pleaded for exemplary damages against Rayner and Croom, individually, and EBL. Against

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Rayner, Appellees alleged his failure to exercise due care in avoiding a collision with the bridge

involved an extreme degree of risk to Claxton and others, and his driving at the time

“demonstrate[d] a conscious indifference to the rights, welfare, and safety of others.” Against

Croom and EBL, Appellees alleged their failure to exercise due care in hiring drivers and training

or supervising employees involved an extreme degree of risk. They claim this extreme risk

proximately caused the damages suffered by the Appellees.

Trial on the Merits

The case proceeded to trial on the merits beginning on January 13, 2020. The parties

collectively obtained the testimony of nineteen witnesses; of those, only a few are pertinent to the

issues we reach on appeal. We include a very brief summary of the pertinent testimony here, with

more detailed accounts in our following discussion of the issues.

Timothy Case

Timothy Case, an officer with the Austin Police Department, served as an officer with the

Commercial Vehicle Enforcement division, and prepared the crash report for the incident

involving the parties in this case. According to his notes, Mr. Rayner deviated from the TxDOT-

permitted route, and while off route, his oversized load struck a bridge. In his report, Officer Case

indicated the oversized load was the only contributing factor in the collision. The chains securing

the load broke off and went through the windshield of Mr. Claxton’s pickup truck and struck

another vehicle as well. He testified alternate routes existed where Mr. Rayner could have exited

or turned around after he began going the wrong direction. Protocol for the driver of an oversize

load who discovers he is off route is to stop in “a safe spot” and call TxDOT for a reroute. Officer

Case testified he did not have any information Mr. Rayner knew he was off course until he hit the

bridge. He testified the height of the bridge is marked on the bridge.

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 Nathan Flippin

Nathan Flippin is an officer with the Austin Police Department and serves in the

Commercial Vehicle Enforcement Unit. He participated in the inspection of the EBL truck

following its collision with the overpass. In his inspection, he found twenty violations, seven of

which should have put the EBL vehicle out of service. Among the violations, the vehicle’s two

brakes were out of adjustment, and one was defective.

Officer Flippin opined the vehicle should not have been on the roadway prior to the

accident occurring and the issues should have been discovered in a pre-trip inspection; however,

he was not sure if the brake’s defects specifically would be a required item to check in a pre-trip

inspection. In his opinion, the defective brake would likely not have worked during the incident.

He testified despite the other noted violations, EBL was only cited for being over-height.

Michelle Croom

Croom is the corporate representative, a managing member, and fifty percent owner of

EBL. Prior to Rayner’s collision with the bridge, EBL drivers had never been involved in a

collision. Croom personally owned the trailer involved in the crash.

Croom testified Rayner was an employee of EBL, who was hired as a driver. When she

hired Rayner, Croom pulled a copy of his driving record and reviewed it, noting he did not have

any prior infractions according to his driving history. She does not recall how long Rayner held a

commercial driver’s license (CDL) before working for EBL but was aware “it was very long.” She

did not know whether his license had ever been suspended or revoked based on his driving record,

which does not contain that information.

EBL did not have a company-specific safety manual. However, a copy of the Federal Motor

Carrier Safety Administration (FMCSA) manual was kept in the break room of EBL’s office. EBL

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did not have a fleet safety program or written driver standards. EBL relied on verbal discussions

with its employees regarding safety issues.

EBL dispatched its trucks through personal cell phones. The company did not have a policy

related to drivers using cell phones in their trucks. She was aware Rayner used a flip phone and

might have to do more than one touch to answer his phone. She acknowledged answering a phone

using more than one touch causes a driver to be distracted from the roadway, thus putting the

public at risk. She testified Rayner had a headset and Bluetooth capability in the truck. However,

she was not sure whether he was using either during the time leading up to the incident.

Byron Scott was the safety coordinator for EBL. Scott is Croom’s husband. She did not

know what background Scott had in truck safety training when she hired him and later testified he

did not have any truck safety background training prior to his employment with EBL. Scott was

the only person at EBL who performed driving tests on new drivers. Other than an initial driving

test, EBL did not provide other training to their drivers, including safety training, rules-of-the-road

training, or defensive driving.

For Rayner to transport the oversized load, he was required to carry an oversized-load

permit from TxDOT. The oversized-load permit is valid only on the TxDOT-approved route. The

requirement for a permit is to ensure the vehicle carrying the load fits under all the bridges along

the route of travel. Drivers are not permitted to deviate from the TxDOT-approved route.

Ms. Croom agreed if Rayner stayed on course, the crash would not have occurred. She also agreed

Rayner is supposed to be aware of federal regulations for motor carriers. She agreed drivers of

oversized loads are supposed to pull over or turn around if they find themselves off route, and if

Rayner had done so, the incident would have been prevented. Rayner did not contact EBL after he

discovered he was off course but before the collision with the bridge. Croom agreed as a

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professional driver, he should know if he travels off the assigned route. She agreed even if he did

not know until he hit the bridge he was off the assigned route, “[he was] still in the wrong for

having missed [the route] so badly[.]” She agreed Rayner’s driving off the assigned route was

“way below the standard [she] would expect from [EBL’s] truck drivers” and was “reckless[.]”

She confirmed the truck Rayner drove should not have been on the road based on the issues

with the tires and brakes. One of the other violations on the truck was improper brake lights. Three

violations involved the brakes on the truck. The inspection sticker on the vehicle was also expired.

Croom testified EBL allowing Rayner’s vehicle on the roadway with an expired inspection sticker

was dangerous and reckless.

She testified she took responsibility “as a person [and as owner of] my company” for the

crash. In her deposition, she placed sole blame on Rayner for getting off the assigned route.

However, at trial she testified she and EBL were also to blame but did not elaborate further. She

confirmed Rayner was in the course and scope of his employment with EBL during the incident.

She also agreed Rayner going off the assigned route was the sole cause of the incident.

Byron Scott

Scott did not have a formal title of “safety coordinator” with EBL; he did what Croom

asked of him. Scott agreed formal safety training of employees was not “in [his] lane” as an EBL

employee. He testified he was responsible for safety issues involving EBL vehicle mechanics in

addition to “ensuring that the person assigned to the piece of equipment knows how to operate it.”

He was not aware of any written policies or procedures at EBL regarding the use of CBs or cell

phones.

Scott was trained on safe eighteen-wheeler operation in the Army. He has approximately

twenty years of truck maintenance and repair experience. Scott testified he had hours of operation

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training and extensive maintenance training on the inside and outside of trucks, as well as

inspection training. He obtained a CDL at the end of his training. He also received maintenance

training. He was also trained in inspections, which includes how to perform pre-trip inspections.

There is a pre-trip inspection checklist provided by the FMCSA included on the back of

the driving logs. Scott stated a driver would just check a box indicating a pre-trip inspection was

done; however, Scott performed more thorough inspections. He testified if he interviewed a driver

who did not appear to know how to perform a pre-trip inspection, his recommendation to Croom

would be not to hire that candidate. He confirmed he never trained an EBL driver to perform a pre-

trip inspection.

If an EBL vehicle experienced maintenance issues, Scott’s responsibility was to address

them. Scott did not provide training to EBL drivers on how to drive safely. Scott testified he had

“in-the-yard” sessions with drivers demonstrating they could operate the specific piece of assigned

equipment. He provided training on how to drive and operate the piece of machinery, but not on

the rules of the road, TxDOT regulations, or FMCSA regulations. He is not aware of company

policies regarding safety.

Scott stated if something was wrong with an EBL truck on the road, it was not necessarily

his responsibility. He said if something goes out of service on a vehicle as it is en route on the

road, it is acceptable under certain circumstances to continue to drive that truck regardless of the

out-of-service maintenance violations. He stated it is not appropriate to begin driving a vehicle

with known mechanical issues. Part of the pre-trip inspection is ensuring any existing issues on

the vehicle are discovered.

EBL drivers use a “DVIR,” which lists parts of the vehicle to be inspected. Scott testified

it was his responsibility to ensure EBL drivers adhered to requirements under the FMCSA

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pertaining to vehicle maintenance and operation. Scott agreed the deficiencies noted by Officer

Flippen on the EBL vehicle put travelers on the roadway at risk. Scott testified each tractor-trailer

had twelve sets of brakes, or twenty-four brake pads total. If a brake is out of adjustment, it will

still work. Scott agreed if Rayner followed the TxDOT route on the permit, the crash could have

been avoided.

Ronnie Claxton

On the afternoon of the accident, Claxton left work and was exiting Highway 71 to U.S.

183 south. He waited for Rayner’s vehicle to pass and then turned onto U.S. 183 behind the EBL

truck. Almost immediately after turning onto U.S. 183 behind Rayner, the EBL vehicle hit the

bridge. Claxton did not see any indication Rayner attempted to brake before hitting the bridge and

did not see any brake lights flash on. After the truck hit the bridge, Claxton recalls the EBL truck

started slowing down and ultimately came to a stop after passing under the second overpass bridge.

When the EBL truck hit the bridge, Claxton jerked his steering wheel because he believed the

bridge was falling. His windshield shattered and debris came into his truck through the windshield.

He saw a ratchet binder sitting in his front seat, which he believes entered through his windshield

and caused it to break.

Dennis Edward Rayner

Rayner has been a truck driver for forty-five years. He has not had any other job other than

being a truck driver. Some trucking companies he worked for gave him a road test prior to

employment. He occasionally also had to take written tests regarding operation of the vehicles and

rules of the road. He is familiar with the rules of the road.

When EBL hired Rayner, he did not take any written tests prior to employment. Rayner

testified he does not require corrective lenses and there are no restrictions on his commercial

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driver’s license or his medical card related to his vision. At the time of the incident, Rayner was

required per a medical exam and safety board examination to wear corrective lenses.

At the time of the crash, Rayner was driving as an employee of EBL. The truck he drove

was not equipped with GPS, but he purchased and used his own GPS system in the truck. It gave

audible directions, and it was on at the time of the incident. His only means of communication

with EBL while on a job was his personal cell phone with which he used a headset.

By federal law, he is required to perform a pre-trip inspection, or DVIR. The pre-trip

inspection includes walking around the truck and trailer and inspecting them, including checking

the tires and tread, the regular brakes and air brakes, the turn signals, the brake lights, air hoses,

fluids, and the body of the vehicle. He is also required to check the load is secure, including the

straps and chains. There are no exceptions to the federal requirement that issues discovered in a

pre-trip inspection must be repaired before the truck can be driven. Rayner testified he performed

a full and complete pre-trip inspection before leaving with the load in Dayton. He did not find any

deficiencies in that inspection. He was unsure why EBL had not provided a copy of his pre-trip

inspection DVIR list in response to discovery requests.

TxDOT determines which route a driver must take for an over-height load. Rayner used

TxDOT’s directions on this drive; his wife assisted him by phone, reading the TxDOT directions

from a copy she had. Rayner also had his GPS device on, but it did not give TxDOT-specific

directions. As he approached Highway 183, he understood his wife told him to go east on 183. She

subsequently informed him he was going the wrong way if he was travelling east on Highway 183.

After realizing he was on the wrong route, Rayner did not recall any exits along the way

where he could have turned the vehicle around. Once he realized he was going the wrong way, he

called his wife to ascertain what route to take. As he approached the bridge, he did not see any

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warning sign ahead of the bridge regarding height, nor any height sign on the bridge. He testified

his line of sight of the bridge was obstructed due to a curve in the road just before he crashed into

it. However, when shown a diagram of the area before the bridge, no curve in the road was pictured.

He testified because he had just come around the curve, he did not see the bridge sign on the bridge

until he was “right up on it and it was too late[,]” which is why he collided with the bridge.

He understood he caused the crash by going off the assigned route; however, he believes

the accident could have been avoided if bridge signage had been better. Traffic conditions at the

time of the accident were busy. Before Rayner’s truck hit the bridge, he “stepped on the brake[,]”

which engaged. He did not believe he downshifted the truck to slow his speed. After he had already

gone under both bridges of Highway 71, he brought the truck to a stop on the shoulder of the road.

Claxton also stopped his vehicle after going under both bridges.

Rayner testified he was not using his phone during the incident. He estimated he was

traveling approximately twenty miles per hour when he hit the bridge; he stated he was driving

slowly because he was looking to turn around. It was an accident that caused him to take the wrong

turn onto 183; in addition, he was not sure where he was or where he was going.

The Verdict

After deliberating, the jury returned a verdict in favor of Appellees. They answered “yes”

to the question of whether the negligence of each of Appellant proximately caused the incident.

The jury apportioned Appellant’s responsibility as follows: fifteen percent to Rayner, seventy

percent to EBL, and fifteen percent to Croom. For damages to Mr. Claxton, the jury awarded

$121,676 in loss of earning capacity in the past, $90,083 for loss of earning capacity in the future,

and $1,049,555 for future medical expenses. For each remaining category of damages, including

past and future physical pain, mental anguish, disfigurement, and physical impairment, the jury

11
did not award any damages. For Mrs. Claxton, the jury awarded $35,000 for loss of household

services in the future. The jury did not award Mrs. Claxton any other damages.

The jury answered affirmatively on the gross negligence questions for Rayner, EBL, and

Croom. It awarded $100,000 in exemplary damages to Mr. Claxton from Rayner, $5,000,000 in

exemplary damages to Mr. Claxton from EBL, and $1,000,000 in exemplary damages to Mr.

Claxton from Croom.

Post-Trial Motions

On February 11, 2020, Appellees filed a form for proposed judgment based on the verdict

rendered by the jury. On March 2, 2020, Appellants filed a response opposing the proposed

judgment to “inform the Court of critical errors in the proposed judgment before any judgment

against [Appellants] is rendered.” On March 13, 2020, the trial court entered judgment against

Appellants based on the jury’s findings and awards as follows:

• The trial court found and apportioned responsibility per the jury’s findings, assigning
fifteen percent responsibility each to Rayner and Croom, and seventy percent to EBL;

• The trial court ordered Appellees to recover from Rayner $194,447.10 in compensatory
damages, representing his percent of responsibility, and $100,000 in exemplary
damages;

• The trial court ordered Appellees to recover from EBL $1,296,314, finding EBL jointly
and severally liable for the full amount of the judgment since EBL was determined to
be more than fifty percent responsible for the occurrence, and $2,592,628.00 in
exemplary damages after statutory caps on exemplary damages were applied. See
TEX.CIV.PRAC.& REM.CODE ANN. § 41.008;

• The trial court ordered Appellees to recover from Croom $194,447.10 in compensatory
damages, representing her percent of responsibility, and $1,000,000 in exemplary
damages; and

• The trial court ordered Appellees to recover from each Appellant their proportionate
amount of prejudgment interest owed, and costs of court jointly and severally.

On April 9, 2020, Appellants timely filed a motion to disregard and for judgment

notwithstanding the verdict (JNOV)(hereafter, motion for JNOV). See Commonwealth Lloyd’s Ins.

12
v. Thomas, 825 S.W.2d 135, 141 (Tex.App.—Dallas 1992), writ granted w.r.m., 843 S.W.2d 486

(Tex. 1993).1 The same day, Appellants also filed a motion for new trial.

In the motion for JNOV, Appellants claim the jury’s finding that Rayner proximately

caused the occurrence “is immaterial and supported by legally insufficient evidence” and should

be disregarded. Their contention is based on their position, among other things, Rayner did not

breach a duty owed to Appellees, legally insufficient evidence exists showing Rayner failed to

exercise ordinary care, and there is legally insufficient evidence showing any alleged breach by

Rayner was a proximate cause of the accident. Appellants make the same assertions regarding EBL

and Croom, arguing the jury’s responses to Question 1 should be set aside. Additionally, regarding

Croom, Appellants argue she owed Appellees no duty as a matter of law, and Appellees failed to

plead or prove any viable theory of liability against Croom, in her individual capacity. Appellees

also argued the jury’s answers to Question 2 should be “rendered immaterial” because of the

insufficient evidence supporting their answers to Question 1. Appellants argue the jury’s responses

to Question 4 regarding damages are immaterial and should be disregarded because they are not

supported by legally sufficient evidence. Finally, Appellants argue the jury’s responses to

Questions 5, 6, 7, 8, 9, and 10, regarding gross negligence of the Appellants and the amount of

exemplary damages awarded, are immaterial and should be disregarded. They allege the evidence

is legally insufficient to support a finding of gross negligence or the amount of exemplary damages

1
We recognize a split in authority on when a motion for JNOV is considered timely. See, e.g., Thomas, 825 S.W.2d
at 141 (stating motion for JNOV must be filed within thirty days after signing of judgment); BCY Water Supply Corp.
v. Residential Inv., Inc., 170 S.W.3d 596, 604–05 (Tex.App.—Tyler 2005, pet. denied)(stating motion for JNOV is
timely as long as trial court retains jurisdiction over the case); Needville Indep. Sch. Dist. v. S.P.J.S.T. Rest Home, 566
S.W.2d 40, 42 (Tex.App.—Beaumont 1978, no writ)(stating motion for JNOV can be filed after judgment is entered
but before it becomes final). Here, Appellants filed their motion less than thirty days after the judgment was signed,
while the trial court retained plenary power over the case. See TEX.R.CIV.P. 329b(d)(“The trial court . . . has plenary
power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment
is signed.”). Accordingly, it was timely by any of the intermediate courts’ precedent on the issue. See, e.g., Thomas,
825 S.W.2d at 141; BCY Water Supply Corp., 170 S.W.3d at 604–05; Needville Indep. Sch. Dist., 566 S.W.2d at 42.

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awarded based on the nature of the wrong alleged, the character of the conduct involved, the degree

of culpability of each Appellant, and each Appellant’s net worth, among other things. For the

reasons alleged, Appellants requested the trial court set aside its judgment and render judgment in

favor of the Appellants.

Similarly, in their motion for new trial, Appellants posit the evidence is factually

insufficient to support the jury’s findings, and a new trial is warranted. For each of the reasons

raised in the motion for JNOV regarding the legal insufficiency of the evidence, Appellants’

motion for new trial extends the same arguments to the factual sufficiency of the evidence. They

asked the court to set aside its judgment and grant Appellants a new trial.

Appellants’ motion for JNOV and motion for new trial were overruled by operation of law

on May 27, 2020. See TEX.R.CIV.P. 329b(c). This timely appeal followed.

DISCUSSION

Appellants raise the following five issues:

1. Whether an LLC member can be held personally liable for the obligations of the LLC
or its employees where (a) the member owed no independent legal duty as a matter of
law, (b) Appellees failed to plead, prove, or obtain jury findings on vicarious liability
theories of alter ego, respondeat superior, single business enterprise, joint venture, or
negligent entrustment, and (c) the evidence is legally and factually insufficient to prove
an act or omission by the member caused the occurrence or damages claimed by the
Appellees;

2. Whether an LLC can be independently responsible, jointly and severally liable, and
responsible for exemplary damages when (a) the evidence is legally and factually
insufficient to prove the LLC’s tortious acts caused the occurrence or damages claimed
by the Appellees, and (b) Appellees failed to request or obtain jury instructions
regarding ratification or authorization of an employee’s alleged gross negligence or a
vice-principal’s alleged gross negligence;

3. Whether legally and factually sufficient evidence under a clear and convincing standard
supports imposing exemplary damages;

4. Whether a new trial is proper because the jury’s excessive damage award reflects
passion, prejudice, or improper motive rather than actual compensation; and

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 5. Alternatively, if this Court does not remand for a new trial or render judgment for
Appellants, whether the exemplary damages awards are legally, statutorily, or
constitutionally excessive.

Legal and Factual Sufficiency Standards of Review

A legal sufficiency or “no evidence” challenge will only be sustained on appeal if the

record demonstrates: (1) the complete absence of a vital fact; (2) the court is barred by rules of law

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

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

the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); Dallas

Nat. Ins. Co. v. Morales, 394 S.W.3d 826, 831 (Tex.App.—El Paso 2012, no pet.); Region XIX

Serv. Ctr. v. Banda, 343 S.W.3d 480, 484 (Tex.App.—El Paso 2011, pet. denied); El Paso Indep.

Sch. Dist. v. Pabon, 214 S.W.3d 37, 41 (Tex.App.—El Paso 2006, no pet.). When conducting a

legal sufficiency review, we consider the evidence in the light most favorable to the verdict,

crediting favorable evidence if a reasonable juror could, and disregarding contrary evidence unless

a reasonable juror could not. City of Keller, 168 S.W.3d at 810; Region XIX Serv. Ctr., 343 S.W.3d

at 485. “[A]n appellate court conducting a legal sufficiency review cannot ‘disregard undisputed

evidence that allows of only one logical inference.’” City of Keller, 168 S.W.3d at 814 (citing St.

Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519–20 (Tex. 2002)). 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. City of Keller, 168 S.W.3d at 827.

When reviewing the factual sufficiency of evidence, we examine all the evidence and set

aside a finding only if the evidence supporting the jury finding is so weak as to be clearly wrong

and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Under both a legal and

factual sufficiency review, we are mindful that the jury, as fact finder, is the sole judge of the

credibility of the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d
15
at 819. We may not substitute our judgment for the fact finder's, even if we would reach a different

answer on the evidence. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.

2003). However, “proper review [by an appellate court] also prevents jurors from substituting their

opinions for undisputed truth. When evidence contrary to a verdict is conclusive, it cannot be

disregarded.” City of Keller, 168 S.W.3d at 817.

Issue No. 1: Liability of Croom, Individually

In its first issue, Appellants argue Croom cannot be held personally responsible for

Appellees’ damages because she is shielded from individual liability for EBL or Rayner’s actions

based on her role as a member–manager of the LLC. Appellants further assert Appellees failed to

plead, prove, or secure jury findings on any theory of vicarious liability, which could impute

another’s actions to Croom, and the theories of liability Appellees did plead against her were

unsupported by the evidence. Finally, Appellants claim the evidence at trial does not support a

finding Croom owed any independent duty to the Appellees, and the evidence was legally and

factually insufficient to support a finding any action taken by her proximately caused the

occurrence. For these reasons, Appellants ask this Court to reverse the trial court’s judgment and

render judgment in Croom’s favor.

Appellees counter Croom was personally liable to Appellees as a result of her own acts of

negligence and gross negligence, not acts of the business which were imputed to her. Appellees

also contend Appellants waived any objection to Croom’s submission to the jury on the question

of liability because Appellants failed to object to her submission in the charge conference and

included her name in the apportionment of liability question on their own version of the proposed

charge. We consider the waiver assertion first.

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 Waiver of Error

Whether a defendant owes a plaintiff a legal duty of care is a threshold issue which the

plaintiff must prove to succeed on a negligence claim. See Nabors Drilling, U.S.A., Inc. v. Escoto,

288 S.W.3d 401, 404 (Tex. 2009); Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex.

2017). Where no duty exists, a defendant cannot be liable in tort. Kroger Co. v. Elwood, 197

S.W.3d 793, 794 (Tex. 2006). The existence of a duty is typically a question of law. Nabors

Drilling, 288 S.W.3d at 404. In very rare cases, where a duty has not previously been recognized

in the factual circumstances present in a case, a fact finder may be called upon to resolve factual

questions that could determine whether a duty should exist. Pagayon, 536 S.W.3d at 503–04.

However, “such cases are unusual.” Id. at 504 (citing Humble Sand & Gravel, Inc. v. Gomez, 146

S.W.3d 170, 182 (Tex. 2009)(noting only one instance where a fact finder had to resolve fact issues

determinative of whether a duty should be imposed)).

Appellees cite Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) for the proposition, that

failure to object to a legal issue before it is submitted to a jury waives any argument on appeal

the issue should have been decided differently by the trial court. Id. In Osterberg, the Supreme

Court considered whether this Court should have considered the sufficiency of the evidence on a

standard of compliance related to campaign expenditure reporting which was different than the

standard of compliance question submitted to the jury. See id. at 54–55 (“The Osterbergs could

instead be arguing that when a court submits a defective issue to the jury, an appellate court should

review the sufficiency of the evidence against the question and instruction that the trial court

should have submitted . . . even if the defect was never brought to the court’s attention and the

question or instruction never requested.”)(Emphasis added.) There, the appellants failed to object

to the standard submitted to the jury on the charge, and the standard they contended should have

been submitted to the jury was never requested. Id. at 55. The court in Osterberg and the Appellees
17
also cite to Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999). See Osterberg, 12

S.W.3d at 55. In Holland, the Supreme Court noted a trial court must “resolve a legal issue before

the jury [can] properly perform its fact-finding role[;]” a party’s failure to object to the issue and

thus apprise the trial court of potential error and give it time to cure the error waives any complaint

about the issue on appeal. 1 S.W.3d at 94. However, the Holland court also noted purely legal

questions are analogous to legal sufficiency challenges, which can be raised for the first time in a

motion for JNOV. Id.

Finally, Appellees cite Dao v. Garcia, 486 S.W.3d 618, 628 (Tex.App.—Dallas 2016, pet.

denied). There, the appellant submitted a proposed jury charge including her name in the

apportionment of responsibility question on a negligence case involving operation of a motor

vehicle. See id. at 627. Dao too involved allegations of direct and derivative liability against the

appellant after her friend borrowed her car and crashed while driving it. See id. at 620–21. On

appeal, the appellant claimed it was error for her name to be included in the apportionment of

responsibility question to the jury. Id. at 627. The court held because the appellant’s proposed

charge of court included her name in the apportionment question, the appellant invited the error

complained of. Id. at 627–28. Accordingly, the court found she waived the issue on appeal. Id. at

628.

In their reply brief, Appellants counter legal and factual insufficiency arguments regarding

the sufficiency of the evidence to submit a question to the jury may be raised for the first time after

the verdict. See TEX.R.CIV.P. 279. Citing to Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991),

they claim the motion for JNOV and motion for new trial preserved their claim Croom owed no

duty to Appellees as a matter of law. See id. (stating legal and factual sufficiency arguments may

be raised for the first time in a motion for new trial). Appellants further argue the proposed charge

18
they submitted to the trial court was done so prior to trial, and under the charge submitted to the

jury, the evidence, as a matter of law, is legally and factually insufficient to show Croom owed a

duty to Appellees.2

We must look at the substance of Appellants’ arguments regarding Croom’s individual

liability to determine whether they were properly preserved for appeal. Their arguments regarding

Croom’s individual liability are three-fold: (1) she owed no independent duty to Appellees as a

matter of law; (2) Appellees failed to plead or prove any theory of liability against Croom that

could impute the actions of another to her; and (3) the evidence is legally and factually insufficient

to prove Croom’s actions caused the harm alleged by the Appellees. We examine the alleged

waiver of each subargument in turn.

First, we hold Croom did not waive her no-duty argument by failing to object to the jury

charge based on the nature of her complaints on appeal. If she were arguing the trial court erred in

submitting her name in the apportionment of liability question, she would have waived this

complaint by failing to object at the formal charge conference and by inviting error when she

included her name in the general negligence question on Appellants’ proposed charge of court. See

United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 482 (Tex. 2017)(“We have acknowledged that

a defendant may invite error and waive its argument on appeal when it persuades a trial court to

2
Regarding Appellants’ alleged failure to object to Croom’s inclusion on the apportionment of liability, in the
discussion between the parties’ counsel and the trial court regarding questions for submission to the jury, counsel for
Appellees moved for directed verdict “on the issue of negligence as to each of the defendants,” as well as the issue of
gross negligence. Appellants’ counsel objected, arguing the issues should “still go[] to the jury” because there was
“still a question of facts and [Appellants] disagree on [Appellees’ counsel’s] interpretation of the evidence.” The trial
court granted the motion for directed verdict, stating, “[O]ur jury charge leads straight to causation -- proximate cause,
rather, which I think is fine. So I will grant that directed verdict at this time.” Following this exchange, the trial court
held its “formal charge conference” in which it explained it submitted a version of a charge to the parties for review
and asked if either side disagreed with its submission to the jury. Neither side lodged an objection. In the jury charge,
there was no question submitted to the jury regarding whether Croom was negligent; rather, the first question asked
of the jury was whether the negligence of Rayner, EBL, or Croom proximately caused the occurrence in question.
Thus, while Appellants lodged an objection to the directed verdict on the issue of each Appellant’s negligence, they
did not object to the submission of each Appellant’s name in the apportionment of responsibility question.

19
adopt a jury charge that it later alleges supports an improper theory of recovery.”)(citing Del Lago

Partners, Inc. v. Smith, 307 S.W.3d 762, 775–76 (Tex. 2010)). However, Croom did not object to

the charge as submitted on the general negligence question. Rather, her no-duty argument reflects

her legal sufficiency challenge, in which she argues a complete absence of a vital fact—that is, the

existence of an independent duty owed to the Appellees. City of Keller, 168 S.W.3d at 810. As

stated previously, legal and factual sufficiency arguments may be raised for the first time in a

motion for new trial. See Cecil, 804 S.W.2d at 510–11. Here, Appellants’ complaint regarding the

legal and factual sufficiency of the evidence against Croom in their motion for JNOV and motion

for new trial. Accordingly, she preserved error on the sufficiency grounds regarding existence of

a legal duty. Id.

We need not determine whether she preserved the issue of Appellees’ failure to plead or

prove vicarious liability against her. Appellees argue they were not required to plead or prove

vicarious liability against Croom because they “did not seek to hold Croom liable for the acts of

either Rayner or EBL, but for her own negligence and gross negligence.” Accordingly, to the extent

their amended petition asserted vicarious liability against Croom, those claims were abandoned at

the time of trial. See Wingert v. Devoll, No. 03-09-00440-CV, 2010 WL 3271744, at *1 (Tex.

App.—Austin Aug. 20, 2010, pet. denied)(recognizing that claims may be abandoned by the

claimant during the trial).

Finally, we find Croom did not waive her argument regarding the legal and factual

sufficiency of the evidence regarding causation. See Cecil, 804 S.W.2d at 510–11 (indicating legal

and factual sufficiency arguments may be raised for the first time in a motion for new trial). Here,

Appellants complained of the legal and factual sufficiency of the evidence against Croom as to

causation in their motion for JNOV and motion for new trial. Accordingly, she preserved error on

20
the sufficiency grounds as they pertain to proximate cause. Id.

We find Croom preserved error on her complaints regarding the legal and factual

sufficiency of the evidence regarding the elements of duty and proximate cause. We proceed to

our analysis of the merits of Appellants’ first issue on appeal.

Sufficiency of Evidence Proving Croom’s Individual Liability

In its first issue, Appellants argue Croom cannot be held personally responsible for

Appellees’ damages because she is shielded from individual liability for EBL or Rayner’s actions

as a member–manager of the LLC. She also argues Appellees failed to plead, prove, or secure jury

findings on any theory of vicarious liability, which could impute another’s actions to her, and the

theories of liability they did plead were unsupported by the evidence. Finally, Croom claims the

evidence does not support a finding she owed any independent duty to Appellees, and the evidence

was legally and factually insufficient to support a finding any action taken by her proximately

caused the occurrence.

We have already determined Appellees abandoned any claims of vicarious liability against

Croom. Accordingly, our analysis of Croom’s first issue is limited to (1) the sufficiency of the

evidence regarding what, if any, duty(ies) Croom owed to Appellees under the theories of

individual liability pleaded against Croom, and if necessary, (2) the sufficiency of the evidence

regarding Croom’s negligence as to the proximate cause of the occurrence.

Appellees argue Croom was personally liable for her own acts of negligence and gross

negligence, not acts of the business which were imputed to her. However, they further cite to case

law in support of the theory; “a corporate officer may be held individually liable for the tortious

acts of the corporation if he directed, participated in, or had knowledge of or assented to, the

wrongful conduct.” Luna v. State, No. 03-96-00555-CV, 1997 WL 334955, at *3 (Tex.App.—

21
Austin June 19, 1997, no pet.)(citing Leyendecker & Assoc., Inc. v. Wechter, 683 S.W.2d 369, 375

(Tex. 1984)). They also cite to several cases which found a member of an LLC is liable for his or

her own tortious actions. See State v. Morello, 547 S.W.3d 881, 888 (Tex. 2018); Deaton v.

Moreno, No. 02-16-00188-CV, 2017 WL 4683940, at *5 (Tex.App.—Fort Worth Oct. 19, 2017,

pet. denied)(mem. op.); Key v. Richards, No. 03-14-00116-CV, 2016 WL 240773, at *2

(Tex.App.—Austin Jan. 13, 2016, no pet.) (mem. op.); Sanchez v. Mulvaney, 274 S.W.3d 708, 712

(Tex.App.—San Antonio 2008, no pet.); Miller v. Keyser, 90 S.W.3d 712, 717 (Tex. 2002);

Coleman v. Savoie, No. 03-97-00548-CV, 1998 WL 305322, at *3 (Tex.App.—Austin June 11,

1998, no pet.); Kerr v. Lambert, No. 03-19-00359-CV, 2020 WL 6266005, at *9 (Tex.App.—

Austin Oct. 23, 2020, no pet.)(mem. op.); Chico Auto Parts & Serv., Inc. v. Crockett, 512 S.W.3d

560, 575 (Tex.App.—El Paso 2017, pet. denied). However, we find none of the authority relied

upon by Appellees in support of this position is instructive.3

3 In Luna v. State, Luna, the officer and director of a corporation, was found individually liable for conversion and
breach of fiduciary duty because he personally “wrongfully assum[ed] and exercise[ed] dominion over the tax money
collected to the exclusion of the State and in a manner inconsistent with the State’s rights in the property.” Luna, 1997
WL 334955, at *3. Although the tax monies were collected by the corporation for which he worked, Luna was still
liable in his individual capacity as the wrongful actor who converted the monies. See id.
In State v. Morello, Morello was the single member of an LLC which owned property that was subject to various
environmental law compliance obligations mandated by the Texas Commission on Environmental Quality and the
Texas Water Commission. Morello, 547 S.W.3d at 883. TCEQ notified Morello and his LLC that they were in
violation of the compliance plan and pursued enforcement of the plan and subsequently sued the LLC and Morello
individually. Id. The Texas Supreme Court ultimately determined Morello was personally liable for the civil penalties
assessed for the violations based on the Water Code’s provision allowing the penalties to be assessed against “a
person.” Id. at 885–86 (applying the plain meaning of “person,” which includes an individual, where the term was not
defined in the Water Code).
In Deaton v. Moreno, Deaton was an attorney who was not shielded from liability for his own alleged negligence in
committing legal malpractice and breach of fiduciary duties. Deaton, 2017 WL 4683940, at *2, 5. In Key v. Richards,
the Austin court of appeals reiterated the tenet “an entity’s agent is personally liable for his own fraudulent or tortious
acts.” Key, 2016 WL 240773, at *2. That case involved corporate officers who committed a fraudulent transfer of
assets to avoid payment on a judgment. Id. at *1–2.
In Sanchez v. Mulvaney, the San Antonio court reversed a summary judgment where the trial court erroneously found
the plaintiffs were required to pierce the corporate veil to find the individual defendants liable for non-contract—that
is, tortious—claims against them. Sanchez, 274 S.W.3d at 712. While the court of appeals did not make a finding
against the corporation’s agents, it noted agents are personally responsible for their own tortious conduct even when
acting in the course and scope of their employment. Id. (citing Miller v. Keyser, 90 S.W.3d 712, 717 (Tex. 2002)).

22
 We recognize the rule relied upon by Appellees in which an individual can be liable for his

or her own tortious actions even when they are committed in the course and scope of their

employment or at the direction of their employer. See, e.g., Chico Auto Parts, 512 S.W.3d at 575.

However, we also recognize the long-standing rule that the judgment must conform to the

pleadings. See TEX.R.CIV.P. 301. As our sister court in Houston wrote:

A court's jurisdiction to render judgment is invoked by the pleadings, and a
judgment unsupported by the pleadings is erroneous. Therefore, a trial court's
judgment must conform to the pleadings. In determining whether the judgment
conforms to the pleadings, we must view the pleadings as a whole. A general prayer
for relief will support any relief raised by the evidence that is consistent with the
allegations and causes of action stated in the petition. Absent trial by consent, a
claimant may not be granted a favorable judgment on an unpleaded cause of action.

Moran v. Williamson, 498 S.W.3d 85, 93–94 (Tex.App.—Houston [1st Dist.] 2016, pet.

denied)(emphasis added)(internal citations omitted).

In considering the sufficiency of the evidence regarding what, if any, duties Croom owed

Appellees under the theories of individual liability pleaded against her, we must first look to the

pleadings to ascertain the theories of individual liability raised in the pleadings. See Marrs & Smith

P’ship v. D.K. Boyd Oil and Gas Co., Inc., 223 S.W.3d 1, 18 (Tex.App.—El Paso 2005, pet.

denied)(citing Oil Field Haulers Ass’n v. R.R. Comm’n, 381 S.W.2d 183, 191 (Tex. 1964))(noting

that judgment may not be granted on an unpled cause of action); see also TEX.R.CIV.P. 301. The

theories of liability alleged against Croom are respondeat superior, alleging she was responsible

for all acts or omissions of her agent(s); negligence for various failures to use ordinary care in

Likewise, in Miller, the Supreme Court noted the same principle applies to corporate agents who make
misrepresentations in the course and scope of their duties for the corporation. Miller, 90 S.W.3d at 717; see also Kerr,
2020 WL 6266005, at *9 (stating corporate agent can be liable for his own misrepresentations); Chico Auto Parts, 512
S.W.3d at 575 (stating corporate “affiliate” can be personally liable for his torts, such as fraud by misrepresentation).
In Coleman v. Savoie, an employee was found individually liable for obstructing the plaintiff’s easement when he
constructed a sidewalk over it at the behest of his employer, who owned the servient estate. See Coleman, 1998 WL
305322, at *3–4. The court noted the employee, as the wrongful actor, was liable for his own conduct even though it
was done in the course and scope of his employment. Id. at *4.

23
operating a vehicle; negligence per se for violations of Texas state law in failing to adhere to

restrictions related to overweight and over-height loads; and gross negligence, alleging her

“operat[ion] [of] a motor-vehicle with reckless disregard of the rights of others . . . was a proximate

cause of the damages suffered by [Appellees]”. 4 Additionally, in the request for exemplary

damages, Appellees argue Croom’s failure, in addition to EBL’s, in exercising due care in hiring

drivers, training and supervising employees, overloading the truck, and changing the route,

constituted an extreme degree of risk and demonstrates a conscious indifference to the safety of

others.

First, we decline to consider any theory of liability asserted against Croom based on

vicarious liability since Appellees concede their claims against Croom individually involve only

actions she personally committed that were tortious. Next, we consider the claims for negligence

and negligence per se. Appellees argue Croom is liable for negligence and negligence per se for

various failures related to operation of the vehicle and failing to comply with restrictions for

oversized vehicles. However, it was conclusively proven at trial Rayner, and not Croom, was

operating the vehicle when it struck the bridge. Thus, Croom cannot be liable for negligence or

negligence per se under any theory related to unsafe operation of the vehicle because she

personally was not operating the vehicle at the time of the incident, and any claim Rayner’s actions

can be imputed to her have been abandoned. The same is true for allegations Croom personally

violated Texas law by failing to adhere to restrictions on travel related to oversized vehicles since

she was not operating the truck at the time it deviated from the permitted route and crashed into

the overpass.

4
Appellees also alleged single business enterprise/joint venture against Croom in combination with EBL and Rayner,
claiming the three “integrated their resources to achieve a common business purpose,” out of which arose this incident.
However, this cause of action appears to have been abandoned during the course of the litigation. It was not raised as
a basis for recovery at trial or in this appeal. Accordingly, we do not consider it on appeal.

24
 Finally, Croom cannot be liable under any theory related to negligent hiring, training, or

supervising employees, as Appellees allude to under their request for exemplary damages. Claims

for negligent hiring, supervision, and training are properly made only against the tortfeasor’s

employer; establishing an employer–employee relationship between the defendant and the

tortfeasor is a prerequisite to establishing the duty element. See Golden Spread Council, Inc. No.

562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 294 (Tex. 1996). In this case, the evidence

conclusively proves Rayner was an employee of EBL, acting in the course and scope of his

employment with EBL when the incident occurred. There is no evidence Croom was his employer.

Therefore, Croom owed no duty under a negligent hiring, training, or supervision theory, if such a

theory can be inferred from Appellees’ pleading. See id.

The only evidence adduced at trial regarding Croom’s individual responsibility for the

incident is her testimony she “take[s] responsibility . . . as a person [and on behalf of her] company”

for the accident. She answered affirmatively when asked if she herself was also to blame. This also

appears to be the only evidence upon which Appellees base their contention Croom’s own acts of

negligence caused or contributed to the accident occurring. Other than the various “admissions,”

as Appellees refer to them, regarding unsafe trucking practices putting the public in danger and

Croom’s testimony she took some responsibility for the accident occurring, Appellees do not

discuss any other evidence adduced at trial which they claim implicates Croom’s actions to causing

the accident. They do not state any alleged facts which confers a duty of care on Croom,

individually. Rather, they argue Croom’s testimony in which she agrees unsafe trucking practices

put the public’s lives in danger and admission of responsibility for the accident serve as a judicial

admission of gross negligence. We disagree.

“A judicial admission results when a party makes a statement of fact which conclusively

25
disproves a right of recovery or defense he currently asserts.” H.E. Butt Grocery Co. v. Pais, 955

S.W.2d 384, 389 (Tex.App.—San Antonio 1997, no pet.)(citing Gevinson v. Manhattan Constr.

Co. of Okl., 449 S.W.2d 458, 466 (Tex. 1969)). Only assertions of fact can be judicially admitted.

Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983). Questions of law cannot be

decided by judicial admission. Jang Won Cho v. Kun Sik Kim, 572 S.W.3d 783, 798 (Tex.App.—

Houston [14th Dist.] 2019, no pet.); Pierce v. Pierce, 850 S.W.2d 675, 679 (Tex.App.—El Paso

1993, writ denied). The existence of a legal duty of care is a question of law. See Nabors Drilling,

288 S.W.3d at 404; see also Julian v. Patel, No. 06-01-00128-CV, 2002 WL 1300016, at *3

(Tex.App.—Texarkana June 14, 2002, no pet.)(explaining where appellant’s pleading stated he

was an independent contractor, the statement could not be considered a judicial admission because

it was a “legal conclusion” that implicated questions of what duties, if any, appellees owed to

appellant).

Appellees cite Medina v. Hart, 240 S.W.3d 16, 23-24 (Tex.App.—Corpus Christi-

Edinburg 2007, pet. denied) for the proposition that negligence and causation can be judicially

admitted. Id. at 23. In Medina, a medical malpractice case, the defendant doctor testified she had

a duty of care to the patient, she breached that duty of care when she placed a hot IV bag under the

patient’s arm, and the placement of the hot IV bag under the patient’s arm caused the burn injury

claimed by the plaintiff. Id. In that case, the Corpus Christi court found the doctor’s testimony

constituted judicial admissions under the test laid out in Griffin v. Superior Ins. Co., 338 S.W.2d

415, 419 (Tex. 1960) upon which Appellees rely. Medina, 240 S.W.3d at 24 (citing Mendoza v.

Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980), which in turn applies the

Griffin test).

Appellees’ reliance on Medina is misplaced. In Medina, the parties did not dispute the

26
doctor owed her patient a duty of care. See Medina, 240 S.W.3d at 24. Moreover, the doctor not

only testified regarding the scope of that duty—a “duty to ensure proper positioning of her patient

to avoid injury”—she also provided clear, unequivocal statements of fact demonstrating her breach

of that very duty. See id. (finding a doctor judicially admitted negligence and causation where the

doctor testified the IV bag she placed under the patient’s arm was warm and caused the patient’s

burn; the patient was diagnosed with a burn in the exact location where she had placed the bag;

and a doctor should not place a hot IV bag under a patient’s arm, as doing so would breach the

standard of care). In other words, the statements constituting judicial admissions in Medina

involved purely issues of fact regarding breach of duty and causation; they did not convey a duty

of care upon the doctor where one did not already exist as a matter of law.

Here, Croom’s testimony in which she “takes responsibility” for the accident is not a

judicial admission because it does not impart a duty upon Croom individually where one does not

otherwise exist. See Musick, 650 S.W.2d at 767 (stating only assertions of fact can be judicially

admitted); Pierce, 850 S.W.2d at 679 (stating questions of law cannot be decided by judicial

admission); Nabors Drilling, 288 S.W.3d at 404 (stating whether a duty exists is a question of

law). Unlike the judicial admissions made in Medina, Croom’s statements she “takes

responsibility” for the accident and is partly to blame for it occurring is a legal conclusion which

cannot serve as a judicial admission because it implies Croom owes a duty of care to Appellees in

her individual capacity when Appellees have not articulated a viable theory of recovery against

her in their pleadings.

Additionally, Appellees have not directed us to any actions taken by Croom which could

be construed as tortious. They reference Croom’s testimony that she was aware, prior to the crash

occurring, unsafe trucking practices put the entire population of the State of Texas at risk.

27
However, general awareness is not evidence that Croom personally endangered the driving

population of the state or otherwise owed any individual duty to the Appellees as it relates to the

incident in this case. Further, Appellees argue Croom’s actions in hiring Scott as EBL’s safety

coordinator without adequately vetting his experience in safety training resulted in Scott failing to

adequately train drivers on performing pre-trip inspections, thereby allowing the vehicle in

question to leave the yard with preexisting safety violations. However, even if the jury determined

these actions by Croom caused the accident, they cannot confer a legal duty on Croom. As we

previously discussed, a duty of care related to hiring, training, and supervising employees lies only

with the employer of those employees. See Golden Spread Council, 926 S.W.2d at 290, 294. To

impart liability upon Croom for negligent hiring of Scott, Appellees were required to prove an

employer–employee relationship existed between the two. See id. Appellees did not. Rather, the

evidence at trial conclusively proved EBL was Scott’s employer.

We find the evidence is legally and factually insufficient to establish the existence of a duty

owed by Croom individually to the Appellees. In the absence of a duty owed by Croom, their

negligence and gross negligence claims against Croom in her individual capacity fail as a matter

of law. See Nabors Drilling, 288 S.W.3d at 404; Pagayon, 536 S.W.3d at 503; Kroger, 197 S.W.3d

at 794. We need not consider the subquestion under this issue regarding the sufficiency of the

evidence proving causation.

Appellants’ first issue is sustained.

Issue No. 2: Sufficiency of the Evidence that EBL’s Negligence Proximately Caused the
Incident

In their second issue, Appellants contend the evidence adduced at trial is legally and

factually insufficient to support the jury’s finding on causation as it pertains to EBL. They argue

Appellees’ failure to request or obtain jury findings regarding negligent entrustment precludes

28
recovery under that theory. Appellants also assert Appellees elicited no evidence EBL instructed

Rayner to deviate from the TxDOT-approved route, and EBL was not aware Rayner deviated from

the route until after the incident occurred. They complain Appellees’ theory—the combination of

insufficient training of their drivers, improper documentation of pre-trip inspections, and evidence

of violations on the truck driven by Rayner at the time of the incident—constitutes negligence and

gross negligence does not support a finding of causation sufficient to impose liability upon EBL.

Conversely, Appellees urge they produced sufficient evidence of EBL’s independent acts

of negligence for failing to ensure proper working condition of the truck Rayner drove and failing

to enforce policies preventing distracted driving. They claim Rayner’s negligent acts were a

“continuing and cooperating proximate cause” of the incident in addition to EBL’s negligence.

They rely on Croom’s testimony that EBL was responsible for putting an unsafe vehicle on the

road, in conjunction with Rayner’s “distracted driving,” which worked in concert to cause the

incident. They submit the separate jury questions regarding their independent theories of liability

were unnecessary and the question of EBL’s negligence being a proximate cause of the incident

was properly submitted under a broad-form question.

Where one person or entity owes another a duty of care, and a breach of that duty causes

the other damages, the person owing the duty is negligent. See Nabors Drilling, 288 S.W.3d at

404. Where the damages alleged by the injured party cannot be causally connected to the actions

of the other—even if the other owes the injured party a duty of care and breaches it—negligence

has not occurred. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551–52 (Tex. 2005).

“Proximate cause consists of two elements: cause-in-fact and foreseeability.” Read v. Scott

Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998). When the record shows some evidence an act or

omission of the defendant “‘was a substantial factor in bringing about injury,’ without which the

29
harm would not have occurred[,]” the cause-in-fact element is met. Doe v. Boys Clubs of Greater

Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)(quoting Prudential Ins. Co. of Am. v. Jefferson

Assoc., Ltd., 896 S.W.2d 156, 161 (Tex. 1995)). Foreseeability considers whether “a person of

ordinary intelligence should have anticipated the danger created by a negligent act or omission.”

Read, 990 S.W.2d at 737. Foreseeability does not require a person to anticipate the precise manner

in which injury will occur once he has created a dangerous situation through his negligence. Travis

v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Instead, where an injury “reasonably [should]

have been contemplated because of the defendant’s conduct[,] . . . [and] not [by] simply viewing

the facts in retrospect and theorizing an extraordinary sequence of events by which the defendant’s

conduct caused the injury[,]” the foreseeability element is satisfied. Read, 990 S.W.2d at 737.

As we did for Croom, we must first survey which theories of liability Appellees alleged

against EBL to determine the sufficiency of the evidence on each alleged theory. The first amended

petition alleges vicarious liability against EBL for the negligence and negligence per se of its

employee, Rayner; negligent entrustment of the vehicle to Rayner; and negligent hiring, training,

and supervision of Rayner. Appellees also alleged gross negligence against EBL. Additionally,

although not factually pleaded, negligence and gross negligence for acts committed by EBL

regarding the maintenance and condition of the EBL truck driven by Rayner were tried by consent

of the parties. See Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009)(“When both parties present

evidence on an issue and the issue is developed during trial without objection, any defects in the

pleadings are cured at trial, and the defects are waived.”).

With this framework in mind, we consider all the evidence in the light most favorable to

the jury’s verdict finding EBL’s negligence under one or more of the theories asserted to have

caused or contributed to the occurrence. See City of Keller, 168 S.W.3d at 810; Region XIX Serv.

30
Ctr., 343 S.W.3d at 485 (legal sufficiency). We will set aside a finding only if the evidence

supporting the jury finding is so weak as to be clearly wrong and manifestly unjust. See Cain, 709

S.W.2d at 176 (factual sufficiency).

We first consider Appellees’ position EBL’s independent acts of negligence—negligent

entrustment; negligent hiring, training, and supervision; and negligent maintenance of their

vehicles—were a proximate cause of the occurrence.

Negligent Entrustment and Negligent Hiring, Training, or Supervising

Because of the similarity in the elements of the two claims, we consider the negligent

entrustment and negligent hiring, training, or supervising claims in tandem. 5 In a negligent

entrustment claim, the evidence must show “(1) entrustment of a vehicle by the owner; (2) to an

unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be

unlicensed [or incompetent or reckless], (4) that the driver was negligent on the occasion in

question and (5) that the driver's negligence proximately caused the accident.” Schneider v.

Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987); TXI Transp. Co. v. Hughes, 224

S.W.3d 870, 917 (Tex. App.—Fort Worth 2007) rev’d on other grounds, 306 S.W.3d 230 (Tex.

2010). “For entrustment to be a proximate cause, the defendant entrustor should be shown to be

reasonably able to anticipate that an injury would result as a natural and probable consequence of

the entrustment.” Schneider, 744 S.W.2d at 596. Knowing the driver to be incompetent or reckless

“at the time of the entrustment is an essential element to establish negligence.” TXI Transp. Co.,

224 S.W.3d at 917 (citing Briseno v. Martin, 561 S.W.2d 794, 796 n.1 (Tex. 1977)).

Negligent hiring, training, or supervising claims require the plaintiff to prove the employer

5
Appellees also make negligent training and supervising claims related to EBL’s training and supervision of
employees in inspecting and maintaining the vehicles. We consider those allegations alongside our analysis of the
negligent maintenance claim.

31
owed the plaintiff a legal duty to hire, supervise, and train competent employees, which the

employer breached, and the breach proximately caused the plaintiff injury. See Bedford v. Moore,

166 S.W.3d 454, 463–64 (Tex.App.—Fort Worth 2005, no pet.). “[T]he theory of negligent hiring

and supervision does require that a plaintiff’s harm be the result of the employment.” See Houser

v. Smith, 968 S.W.2d 542, 544 (Tex.App.—Austin 1998, no pet.). “The basis of responsibility

under the doctrine of negligent hiring is the master’s negligence in hiring . . . an incompetent

servant whom the master knows or by the exercise of reasonable care should have known was

incompetent or unfit and thereby creating an unreasonable risk of harm to others.” Arrington’s Est.

v. Fields, 578 S.W.2d 173, 178 (Tex.App.—Tyler 1979, writ ref’d n.r.e.).

The bases for both causes of action when brought against a tortfeasor’s employer is the

employer’s knowledge, either actual or constructive, that the employee it hires is unfit for the work

the employee is hired to do. See Schneider, 744 S.W.2d at 596 (negligent entrustment); Houser,

968 S.W.2d at 544 (negligent hiring, training, or supervision). In the specific case of negligent

entrustment, the incompetence relates to the employee’s ability to operate a vehicle. See Schneider,

744 S.W.2d at 596.

Appellees point to the following evidence which they claim supports the jury’s proximate

cause findings against EBL:

• EBL hired Scott as the company’s safety manager even though he was “not in the
business of teaching or instructing” EBL’s drivers.

• EBL offered “no training on anything[,]” including safety training, to its drivers.

• Croom testified she “knew prior to the crash . . . that operating a trucking company
unsafely would unreasonably put the motoring public at significant risk of death or
serious bodily injury[.]”

• Croom testified EBL was required to follow the provisions of the FMCSA regulations,
the purpose of which is to ensure “safety on the roads and highways for every one of
us[.]”

32
 • EBL did not have any of its own written manuals or formal safety training process other
than telling its drivers to “[b]e careful.”

• Croom admitted that distracted driving is a known danger to travelers on the roadway.

• EBL had “no policies whatsoever related to the drivers's [sic] use of cell phones in their
18-wheeler trucks[.]”

In their brief, Appellees rely on N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 114

(Tex.App.—Beaumont 2001, pet. denied) in support of their position that EBL’s actions separate

and apart from Rayner were a proximate cause of the accident and Appellees’ damages. In

Emmons, the plaintiff was paralyzed from the waist down after the vehicle in which he was a

passenger was rear-ended by a moving van. Id. at 112. The driver of the moving van did not have

a commercial driver’s license because he could not meet the vision requirements to obtain one. Id.

He had also failed the written exam for a commercial license twice. Id. The driver’s statutory

employers, who were defendants in the case, argued there was factually insufficient evidence to

support the jury’s finding their negligent entrustment of the vehicle to the driver was a proximate

cause of the collision. Id. They argued despite the driver’s lack of a driver’s license and his

impaired vision, “[he] was a legally competent driver[.]” Id. at 113.

The court in Emmons held, due to the driver’s impaired vision and lack of skill, it was

foreseeable he would not be able to operate the moving van in a safe enough manner to avoid an

accident. Id. at 114. Additionally, evidence presented to the jury indicated the employers were

“aware of the risks of unqualified, unlicensed drivers . . . and had the ability to control ‘things that

[were] done in its service[.]’” Id. Among the things the employers could control were inspecting

the records kept by their agent, which hired the driver “to ensure compliance with the law and with

[the employers’] driver requirements and safety regulations,” and discipline the agent when it

failed in that regard. See id. at 113. For those reasons, the Beaumont Court of Appeals found the

evidence legally and factually sufficient to support the findings on proximate cause. Id. at 113-14.

33
 We find the facts in Emmons regarding proximate cause distinguishable from the facts here.

Here, the evidence did not indicate Mr. Rayner was an unskilled, untrained, or otherwise

unqualified driver. He had a valid, current commercial driver’s license and forty-five years of

experience as a commercial truck driver. He has taken various road tests and written tests on the

operation of commercial vehicles during his career. He testified he knew the rules of the road and

knew he was obligated to comply with state and federal regulations while operating a commercial

truck. Rayner knew he was operating an oversized load and that he was required to adhere to

TxDOT’s route of travel on the oversized load permit. Furthermore, although Rayner testified he

had a prescription for corrective eyewear from the VA, it was only for reading glasses; his

commercial driver’s license and his medical card did not contain any vision restrictions.

Specifically with respect to the distracted driving allegations and Rayner’s use of his cell

phone while driving, Croom acknowledged the danger distracted driving poses to the driving

public. She testified if a driver was required to use more than one touch to answer or make a call

from a cell phone while driving, it would be a violation of the rules regarding cell phone use for

commercial truck drivers. There was also testimony Rayner owned and used a flip phone in

combination with a headset when the incident happened. However, there was no evidence

submitted to the jury regarding when during Rayner’s trip he was using his cell phone or whether

he had to use more than one touch to answer or make calls. He testified when he used his phone

while driving, it was through the hands-free headset. Rayner said he spoke with his wife multiple

times so she could read the TxDOT directions to him. He also testified he called her when he

realized he was driving in the wrong direction. However, he testified he was not on the phone

when the incident happened. The record is silent as to whether Rayner was using his phone when

he took the wrong exit.

34
 Here, we find there is no more than a mere scintilla of evidence indicating Rayner was an

untrained or otherwise incompetent driver. In fact, the evidence shows he had ample experience

as a commercial truck driver, a clean driving record, and had a solid understanding of the rules of

the road and the state and federal regulations with which he was required to comply. He testified

that he was aware that if he deviated from the TxDOT route, which he was not allowed to do, he

was supposed to stop, pull over, or turn around once it was discovered.

We also find there is no more than a scintilla of evidence which shows EBL knew, or

through reasonable inquiry should have known, Rayner was incompetent or otherwise unfit to

operate the vehicle or complete his work for EBL as a commercial truck driver. Instead, the

evidence presented through Rayner’s testimony was he took the wrong exit by “accident [because

he] didn’t know where [he] was at, [or] where [he] was going[,]” not as the result of incompetence

in how to operate the vehicle.

Counsel for Appellees elicited testimony from Rayner that the cause of the crash was

because Rayner “didn’t go down the right road and [was] off route[,]” and despite looking for a

place to pull over, he was unable to find one due to the construction in the area. Although police

officers who investigated the crash testified Rayner was incorrect about the lack of a shoulder on

the road due to the construction, Rayner’s testimony indicated he was aware he was required to

pull over or turn around once he realized he was off route, and that testimony is uncontroverted.

Appellees’ counsel sought out Croom’s agreement during her cross-examination at trial: “Driving

the wrong route was a violation of a known safety rule by a professional driver who knew better.”

(Emphasis added). Rayner’s failure to pull over or turn around does not indicate he was ignorant

of the rules requiring him to do so; the uncontroverted evidence offered by the Appellees confirms

he “knew better” than to continue on an unauthorized route. Additionally, EBL was not aware

35
Rayner was off route until after the accident occurred. There was no additional instruction EBL

could have provided to Rayner, reminding him of the need to pull over or turn around after he

strayed off course—which he consistently testified he was trying to do—because EBL was never

afforded an opportunity to do so.

For these reasons, as they pertain to Rayner’s purported incompetence to safely operate the

vehicle and EBL’s knowledge of the alleged incompetence, we find there is no more than a mere

scintilla of evidence EBL breached its duties of care under negligent entrustment or negligent

hiring, training, and supervision theories. Accordingly, there was legally insufficient evidence any

such breach was a proximate cause of the occurrence in question.6

Negligent Maintenance of the Vehicle

Motor carriers, such as EBL, are required to maintain their vehicles “in safe and proper

operating conditions[,]” and drivers must be “satisfied that the motor vehicle is in safe operating

condition.” Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 843 (Tex.App.—Fort Worth

2006, no pet.)(citing 49 C.F.R. §§ 396.3, 396.13 (2018)). While these regulations do not confer a

“specific standard of conduct” upon carriers and drivers for purposes of a negligence per se claim,

they do confer a reasonable person, ordinary standard of care upon carriers and drivers to maintain

the vehicles they own and drive in a safe operating condition. See id. at 843. When this ordinary

standard of care is breached, the causation analysis is identical to a plain negligence proximate

cause inquiry. See Serv-Air, Inc. v. Profitt, 18 S.W.3d 652, 657 (Tex.App.—San Antonio 1999,

pet. dism’d by agr.)(applying proximate cause analysis in negligent maintenance of an aircraft

6
Appellants contend EBL waived any claims of negligent entrustment by failing to request or obtain jury findings.
They argue that submission of EBL’s negligence under a general negligence theory does not submit a negligent
entrustment theory to the jury. See Bedford v. Moore, 166 S.W.3d 454, 464–65 (Tex.App.—Fort Worth 2005, no pet.);
see also Lingafelter v. Shupe, No. 10-03-00113-CV, 2004 WL 2610515, at *2–3 (Tex.App.—Waco Nov. 17, 2004),
rev’d on other grounds, 192 S.W.3d 577 (Tex. 2006). However, because we find the evidence adduced at trial was
insufficient to support a causation finding on negligent entrustment, even if submitted to the jury, we do not reach this
sub-issue of Appellant’s argument.

36
case). In the same vein, motor carriers hold a duty of care to properly hire, train, and supervise

their employees to ensure proper maintenance of their vehicles is occurring. Omega Contracting,

Inc., 191 S.W.3d at 839 ("The law provides that every motor carrier shall systematically inspect,

repair and maintain or cause to be systematically inspected, repaired and maintained, all motor

vehicles subject to its control.” (Emphasis added)).

Appellees point to the following evidence which they argue supports the jury’s proximate

cause findings against EBL for negligent maintenance:

• Croom testified she “knew prior to the crash . . . that operating a trucking company
unsafely would unreasonably put the motoring public at significant risk of death or
serious bodily injury[.]”

• Croom testified EBL was required to follow the provisions of the FMCSA regulations,
the purpose of which is to ensure “safety on the roads and highways for every one of
us[.]”]

• Scott, as EBL’s employee in charge of maintaining its fleet of trucks, failed to inspect
Rayner’s truck personally and did not ensure that Rayner performed and documented
a pre-trip inspection before leaving for this trip.

• Rayner was driving a truck with faulty brakes and other out-of-service violations at the
time the accident occurred. If the violations were discovered prior to Rayner leaving
the yard, the truck would not have been on the road until the issues were repaired.

• Officer Flippin testified if a vehicle fails a pre-trip inspection, it should be repaired
before it goes on the roadway.

• The seven out-of-service violations on the truck Rayner was driving “are considered
violations that are so serious or hazardous enough that a vehicle cannot be allowed or
should not be allowed to continue down the highway.”

• On one tire, the rubber was so thin that the belt material was exposed, and two other
tires had less than 2/32-inch of tread remaining.

• Officer Flippin’s inspection revealed two brakes were out of adjustment and one brake
was defective.

• The brake discovered by Officer Flippin to be defective would not have been working
at the time of the accident.

37
 • The brakes overall would not have worked as effectively as if all brakes were fully
operational.

• “[A]ll required brakes on the vehicle must be operating[]” for a tractor-trailer to operate
safely, and “it's not okay just to have a couple of [the brakes] working and a couple of
them defective and not working[.]”

• Croom testified the truck “should not have been on the road . . . until it had the tire
fixed and the brake.”

• Rayner testified that despite only driving twenty miles per hour at the time of the
accident, after he engaged the brakes, the truck did not stop until it hit the bridge and
continued moving forward until it passed under the second bridge of the overpass.

• Officer Flippin testified a company with fifty-six violations within a ten-month period
was a “company [that] is probably not taking care of maintenance the way they should
on vehicles[,]” the result of which can be crashes.

The evidence clearly demonstrates a breach of EBL’s duty of care to maintain the vehicle

Rayner drove at the time of the accident. If nothing else, the expired inspection sticker on the

vehicle and the multiple out-of-service violations present at the time of the crash indicate the

vehicle was not maintained in a safe operating condition. Additionally, given the inconsistency in

which EBL kept its records on pre-trip inspections and other maintenance, combined with the

approximately twenty violations on the EBL vehicle following the crash, it is reasonable for the

jury to infer EBL did not properly exercise its duty of care to the public to refrain from putting

unsafe or hazardous vehicles on the road.

Furthermore, it is foreseeable a company that allows vehicles containing out-of-service

violations to continue to operate would be a hazard to other drivers on the road and could cause

accidents and even loss of life. This is particularly true when the violations involve items as

fundamental as braking systems and tire integrity on eighteen-wheeler trucks. However, the

problem in this case arises when we consider whether EBL’s breach of its duty to maintain its

vehicles, although a foreseeable risk of harm, was a cause-in-fact of Rayner’s collision with the

bridge.

38
 We consider a recent case out of this Court addressing the sufficiency of evidence proving

causation in a negligent maintenance claim where the plaintiffs-appellees sought gross negligence

findings against the defendants-appellants. See Press Energy Services, LLC v. Ruiz, No. 08-19-

00179-CV, 2021 WL 3013313, at *12 (Tex.App.—El Paso Jul. 16, 2021, no pet.). There, in

another trucking accident case, we reviewed the sufficiency of the evidence to support the jury’s

findings of gross negligence against the trucking company for its lead mechanic’s conduct. See id.

at *14. The accident occurred when the defendant driver, driving northbound in an eighteen-

wheeler tractor-trailer, collided with another eighteen-wheeler tractor-trailer traveling southbound.

Id. at *1. The collision occurred in the southbound lane of traffic. Id. At trial, the two drivers

offered conflicting evidence about who crossed over the center line first. See id. However, an

eyewitness testified he saw the brakes on the defendant driver’s truck lock up, which caused his

vehicle to cross the road into oncoming traffic. Id. The trailer on the defendant driver’s truck

jackknifed and hit the cab of the plaintiff’s truck, causing it to come off the frame. Id.

Expert testimony heard by the jury at trial included the truck had several defects which

“predated the collision and were intentional. Not only were the ABS lines cut and zip tied to the

truck, the internal and external warning lights were disabled as well. . . . Additionally, the external

warning lights for the ABS were removed, filled in, and painted over.” Id. at *14. The evidence

also showed the lead mechanic “was the last person to conduct an in-depth maintenance check on

[the driver’s] truck[,]” and it occurred mere months before the accident. Id. The lead mechanic

“testified he understood that dangers increased with violations of federal safety guidelines, and

thus, trucks in violation of those standards cannot, and should not, leave [the company’s] shop.”

Id. His deposition testimony, which was read for the jury, “stated he personally disliked ABS

braking systems believing they created more problems than they were worth.” Id. According to

39
this evidence, this Court found it reasonable for the jury to conclude the lead mechanic either

created the defects himself or, at the very least, failed to correct them in his role as a managerial

employee for the company. Id.

There are similarities between the facts in Press Energy and the facts of this case. In both

cases, the lead mechanic (in EBL’s situation, its only mechanic) performed the most recent

thorough inspection on the vehicle. In both cases, the vehicle at issue had defects, including brake

defects, which were violations of federal safety standards. In both cases, the company mechanics

were aware of the danger of operating vehicles with issues that violated federal regulations and

acknowledged vehicles with such issues should not be driven. In each of these cases, the

foreseeability element is plainly satisfied.

However, crucial distinctions between these cases exist regarding the cause-in-fact

element. In Press Energy, the jury heard eyewitness testimony that the defendant driver’s brakes

locked up which caused the truck to cross into the oncoming lane. Press Energy, 2021 WL

3013313, at *1. Additionally, expert testimony revealed an ABS fault as well as a fault with the

ABS warning light in the truck’s cab, both of which he determined predated the collision and

would have been present when the truck left the yard since the ABS line was cut and zip-tied and

warning lights for the ABS line were disabled, filled in, and painted over. Id. at *13 Accordingly,

the quality of the braking system on the defendant driver’s vehicle was directly at issue in causing

the accident and direct evidence through expert testimony confirmed the issues with the brakes

were a condition of the vehicle before the accident occurred and had to have been present when

the truck left its yard. Id. at *14. Based on this evidence, it is reasonable the jury could logically

infer the brake issues observed by the eyewitness which caused the trailer to drift into oncoming

traffic were the result of braking defects present on the truck prior to and at the time of the accident,

40
present at the time the vehicle left the yard, and caused or contributed to the accident. See id. at

*13–14.

In this case, as in Press Energy, there is some evidence the brakes may not have been

operating at full capacity at the time of the accident. Rayner testified he completed a pre-trip

inspection of the vehicle and did not note any issues with the truck, including the brakes. However,

other than Rayner’s testimony that he completed an inspection, no physical evidence in the form

of a DVIR checklist was offered at trial. It is therefore reasonable a jury could disregard Rayner’s

testimony and infer he did not perform a pre-trip inspection because the completed inspection form

was not produced by the Appellants in response to Appellees’ discovery requests. See City of

Keller, 168 S.W.3d at 819 (“Jurors are the sole judges of the credibility of the witnesses and the

weight to give their testimony.”). It is also reasonable that a jury could infer the brake violations

were present when the truck left the yard since the officers testified the defective brake was

probably not working at the time of the accident based on its condition post-accident. It would also

be reasonable for a jury to infer the brake system was not operating at its full capacity at the time

of the accident for the same reasons. Additionally, Officer Flippen testified the defective brake

would have caused the overall braking system to operate suboptimally when compared to a system

where all brakes were fully functioning.

However, none of these inferences standing alone could allow the jury to reach the

conclusion the subpar performance of the braking system caused or contributed to the occurrence.

Even if the jury reached the reasonable inference the braking system was not operating at full

capacity when the accident occurred, they would have to assume Rayner applied the brakes far

enough in advance of the bridge, and had they been working at full capacity, the truck would have

stopped before reaching the bridge. There is no evidence which gives any indication Rayner timely

41
applied the brakes. Instead, the evidence shows Rayner either did not apply the brakes at all before

hitting the bridge or at the very least failed to apply the brakes until hitting the bridge was a

foregone conclusion. Claxton testified the truck never slowed down before it hit the bridge.

Claxton did not recall seeing any brake lights before the truck hit the bridge.7 Although Rayner

testified he stepped on the brakes and they engaged before he actually hit the bridge, he was clear

by the time he stepped on the brakes it was already “too late” to avoid the bridge. Even if these

two accounts presented an instance of conflicting evidence, the jury would have to disregard both

Claxton and Rayner’s account of the incident to conclude Rayner braked far enough in advance of

the bridge he would have avoided hitting it if the brakes were fully functioning. To make this leap,

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. This would be unreasonable and

cannot serve as legally sufficient evidence. See City of Keller, 168 S.W.3d at 813–14 (“In claims

. . . supported only by meager circumstantial evidence, the evidence does not rise above a scintilla

(and thus is legally insufficient) if jurors would have to guess whether a vital fact exits. . . .

[D]rawing an inference based on meager evidence [is] unreasonable[.]”); see also Suarez v. City

of Texas City, 465 S.W.3d 623, 634 (Tex. 2015)(“An inference is not reasonable, however, if it is

premised on mere suspicion—‘some suspicion linked to other suspicion produces only more

suspicion, which is not the same as some evidence.’”)(quoting Marathon Corp. v. Pitzner, 106

S.W.3d 724, 727–28 (Tex. 2003)).

Additionally, Appellees offered no expert testimony regarding braking or other defects on

the vehicle being a cause-in-fact of the accident. They also do not address this issue in their brief,

7
One of the violations noted on the EBL vehicle following the incident was obscured or inoperable brake lights.
Croom also testified the investigating officers found improper brake lights on the truck. The violation was noted to be
on the tractor, unit 1, and not the trailer, which was unit 2. Thus, we have no information the brake lights on the trailer
would not have been operational, as no such violation was noted in the post-accident vehicle inspection.

42
despite Appellants raising it. Expert testimony is needed to prove causation when it requires

understanding technical knowledge not commonly known by the public. Mack Trucks, Inc. v.

Tamez, 206 S.W.3d 572, 583 (Tex. 2006); see also Press Energy, 2021 WL 3013313, at *7

(requiring an expert to provide the foundation for the causal nexus connecting the deficient brakes

at the time of the accident to the reason the brakes locked up and caused the trailer to enter the

oncoming lane of traffic). The physics involved in determining the distance at which it would take

a truck at that weight to stop, combined with the mechanical knowledge about the brakes’

functionality and the effects of the braking violations noted by the officers, are not matters within

“a layperson’s general experience and common understanding” where lay testimony can provide

adequate proof of causation. See U.S. Fire Ins. Co. v. Lynd Co., 399 S.W.3d 206, 218 (Tex.App.—

San Antonio 2012, pet. denied); Dumas v. Horn, 529 S.W.2d 88, 90 (Tex.App.—Texarkana 1975,

writ ref’d n.r.e.). The absence of expert testimony indicating the brake issues on the vehicle

contributed to the accident constitutes legally insufficient evidence of cause-in-fact. See Mack

Trucks, 206 S.W.3d at 583; see also City of Keller, 168 S.W.3d at 812 (“When expert testimony

is required, lay evidence supporting liability is legally insufficient.”).

Even if we assume the truck’s braking capacity is an issue for which lay testimony could

provide evidence of causation, the evidence at trial was legally insufficient to support such a

conclusion.8 If Appellees intended the braking violations to be a cause of the incident, evidence

that a timely, proper application of the brakes would have avoided the collision would be required.

See Dumas, 529 S.W.2d at 90 (finding no proximate cause where no expert or lay testimony was

offered about the distance within which vehicle could be stopped by braking, nor physical evidence

8
While “lay testimony establishing a sequence of events which provides a strong, logically traceable connection”
between the defect and an event is sufficient proof of causation, Morgan v. Compugraphic Corp., 675 S.W.2d 729,
733 (Tex. 1984), it still must be a matter within “a layperson’s general experience and common understanding[.]”Lynd,
399 S.W.3d at 218 (citing Mack Trucks, 206 S.W.3d at 583).

43
showing a proper brake application would have avoided the collision). Although Officer Flippin

determined the truck had multiple violations involving the brakes, he did not do an investigation

of skid marks, braking time, or distance traveled, which would be crucial to support an inference

the condition of the brakes played a role in the accident. Rayner testified it would have taken him

approximately six truck-lengths to bring the truck to a stop if he was traveling twenty miles per

hour.9 However, there was no evidence presented indicating what distance ahead of the bridge, if

at all, he was when he applied the brakes. There was also no evidence presented regarding what

distance he traveled after he applied the brakes. Thus, the jury did not have the ability to rely on

this part of his testimony as a basis for causation because a vital fact in that equation—his location

when he started braking—was wholly absent. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925,

927 n.3 (Tex. 1993)(“When the evidence offered to prove a vital fact is so weak as to do no more

than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla

and, in legal effect, is no evidence.”)(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.

1983)).

The evidence put forward by Appellees regarding cause-in-fact of the occurrence was

Rayner taking the wrong exit and not pulling over or turning around before the accident occurred.

Rayner’s testimony elicited in Appellees’ cross-examination was he believed he caused the crash

“[b]ecause [he] didn’t go down the right road and [was] off route.” Appellees elicited testimony

on more than one occasion that Rayner’s deviation from the route was the sole cause of the

9
Rayner testified it would take approximately six truck-lengths to stop his truck if it was traveling twenty miles per
hour; however, he also estimated an individual truck length to be three hundred feet. In closing arguments, Appellees’
counsel argued Rayner testified it would take approximately 1,800 feet—approximately two-thirds of a mile—to bring
his truck to a stop, an argument Appellees reiterate in this appeal. In reality, it appears an individual tractor-trailer has
an average length somewhere between seventy and eighty feet. What Is the Average Length of a Tractor Trailer?,
REFERENCE (Mar. 27, 2020), https://www.reference.com/world-view/average-length-tractor-trailer-
e0bd17ae48ab36a. Thus, the stopping distance of six truck-lengths testified to by Rayner would be somewhere in the
vicinity of 450 feet. This discrepancy alone indicates Rayner’s testimony about stopping distance is unreliable as a
basis for determining whether the brakes performed properly at the time the accident occurred.

44
accident. Appellees went to such lengths developing this sole-cause theory of cause-in-fact that

Appellees counsel had Croom sign an exhibit indicating her agreement with the statement, “Mr.

Rayner going on the wrong route was the only thing that caused or contributed to this crash.”

Although evidence presented at trial could have allowed the jury to infer the brakes were not

operating at their full capacity at the time of the incident, the brakes as a concurrent cause-in-fact

of the accident was not established by the evidence and could not be reasonably inferred from the

evidence presented at trial. See Alarcon v. Alcolac Inc., 488 S.W.3d 813, 820–21 (Tex.App.—

Houston [14th Dist.] 2016, pet. denied).

Instead, the evidence shows Rayner did not apply the brakes before hitting the bridge was

unavoidable; Rayner testified by the time he applied the brakes, it was “too late,” and Claxton

testified he did not have any indication prior to the collision the truck was slowing down, despite

traveling immediately behind the truck.10 Thus, even if the brakes were faulty to such a degree

they would not have stopped the truck if timely applied—evidence which was not established at

trial—the uncontroverted evidence proves the brakes were not timely applied. This undisputed fact

allows for only one logical inference: the condition of the brakes did not play any role in the truck

hitting the bridge because Rayner did not see the bridge or apply the brakes until it was too late

for him to avoid hitting it. See City of Keller, 168 S.W.3d at 814 (“[A]n appellate court conducting

a legal sufficiency review cannot ‘disregard undisputed evidence that allows of only one logical

10
To the extent the jury inferred the brakes were in such a condition that when applied at the time of the collision,
they were completely inoperable and wholly failed, such an inference is unreasonable and contrary to uncontroverted
testimony of the investigating officers, which the jury would have no basis to disregard. First, the jury would have to
make an inference based on another inference regarding the brakes’ condition prior to the accident, which is improper.
See Alarcon, 488 S.W.3d at 820–21. Second, testimony by the investigating officers indicated the brakes in their post-
accident state might not work to the same degree they would if the violations were not present; however, eleven of the
twelve brakes would still have been functional, consistent with Rayner’s testimony when he applied the brakes, they
engaged.

45
inference. . . . Jurors are not free to reach a verdict contrary to such evidence[.]”)(quoting St. Joseph

Hosp. v. Wolff, 94 S.W.3d 513, 519–20 (Tex. 2002)(plurality op.)).

Did EBL owe a duty to the motoring public to maintain its vehicles in a safe operating

condition? Yes. Did EBL breach that duty by having a vehicle with out-of-service violations on

the road? Yes. Was it foreseeable the condition of the truck could cause harm to persons on the

roadway? Yes. Was the condition of the truck a cause-in-fact of the occurrence? There is legally

insufficient evidence to prove it was. Accordingly, we find there is legally insufficient evidence to

support a finding of proximate cause against EBL under a theory of negligent maintenance of the

truck.

Gross Negligence of EBL

We must also consider the sufficiency of the evidence supporting a gross negligence

finding against EBL. “A corporation may be liable in punitive damages for gross negligence only

if the corporation itself commits gross negligence.” Mobil Oil Corp. v. Ellender, 968 S.W.2d 917,

921 (Tex. 1998). Because corporations only act through their agents, the Texas Supreme Court

“developed tests for distinguishing between acts that are solely attributable to agents or employees

and acts that are directly attributable to the corporation.” Id. (citing Hammerly Oaks, Inc. v.

Edwards, 958 S.W.2d 387, 391–92 (Tex. 1997)). “A corporation is liable for punitive damages if

it authorizes or ratifies an agent’s gross negligence or if it is grossly negligent in hiring an unfit

agent.” Id. Corporations can also be liable when their vice principal’s actions constitute gross

negligence. Id. at 922 (citing Hammerly Oaks, 958 S.W.2d at 389). “Vice principal” includes

corporate officers and those with hiring and firing authority for the company. Id. Gross negligence

is decided by examining “all the surrounding facts and circumstances.” Id.

46
 Because there is insufficient evidence to link EBL’s independent actions to causing the

incident, we likewise find the evidence is insufficient to support finding the same allegations

constitute grossly negligent conduct, including the allegations of negligent hiring. See

Nowzaradan v. Ryans, 347 S.W.3d 734, 739 (Tex.App.—Houston [14th Dist.] 2011, no pet.)(“[I]t

is well established that a finding of ordinary negligence is prerequisite to a finding of gross

negligence.”); Munoz v. Mo. Pac. R.R. Co., 823 S.W.2d 766, 769–70 (Tex.App.—Corpus Christi-

Edinburg 1992, no writ)(holding that where there is no basis to impose actual damages, there is no

basis to impose exemplary damages); see also Sup. Ct. Tex., Amend. to Tex. Rules Civ. Proc. 281

& 284 & to Jury Instructions under Tex. Rule Civ. Proc. 226A, Misc. Docket No. 11–9047 (Mar.

15, 2011)(“If exemplary damages are sought against a defendant, the jury must unanimously find,

with respect to that defendant, (i) liability on at least one claim for actual damages that will support

an award of exemplary damages, (ii) any additional conduct, such as malice or gross negligence,

required for an award of exemplary damages, and (iii) the amount of exemplary damages to be

awarded.”)(text also included as historical note to TEX.R.CIV.P. 226a). However, we must also

consider whether EBL authorized or ratified the grossly negligent behavior of another, or whether

a vice principal committed grossly negligent acts which can be imputed to EBL. See Mobil Oil,

968 S.W.2d at 921–22.

Appellants assert Appellees waived a claim of exemplary damages against EBL by failing

to request or obtain jury findings on authorization, ratification, or vice-principal theories to impose

exemplary damages. They cite Rule 279 of the Rules of Civil Procedure, which states in pertinent

part, “Upon appeal all independent grounds of recovery or of defense not conclusively established

under the evidence and no element of which is submitted or requested are waived.”

TEX.R.CIV.P. 279. Appellees cite the same rule for their position: any omission of elements

47
necessary for a negligence finding against EBL under any theory pursued at trial is harmless

because “the omitted elements shall be deemed found by the court in support of its judgment if

there is factually sufficient evidence to support such a finding.” Rice Food Markets, Inc. v.

Ramirez, 59 S.W.3d 726, 734 (Tex.App.—Amarillo 2001, no pet.); TEX.R.CIV.P. 279. Appellees

also state they are not “seeking exemplary damages against EBL based on the acts of Rayner”

under the ratification or vice-principal theories imputing gross negligence to an entity, so we will

not undertake an analysis of whether Rayner’s actions constitute gross negligence or whether

liability can be imposed upon EBL through him.

Appellees claim the evidence regarding negligent training of EBL’s drivers and its failure

to “employ an actual safety manager” is evidence of its gross negligence independent of the acts

undertaken by Rayner. They argue the actions of Croom, as owner and manager of EBL, and Scott,

who “was employed in a managerial capacity” for EBL, were grossly negligent and thus subjected

EBL to gross negligence. But we have already determined, even assuming these actions constitute

a breach of a legal duty owed by EBL, there is legally and factually insufficient evidence proving

their conduct is a cause-in-fact of the accident. While their actions might otherwise satisfy the test

for gross negligence, the lack of a causal link between those actions and the accident precludes a

finding of gross liability. See Nowzaradan, 347 S.W.3d at 739. Thus, we are not left with any

evidence providing a basis for liability of either simple negligence or gross negligence against

EBL absent its vicarious liability for the negligence of Rayner, which alone cannot serve as a basis

for recovery on gross liability and which Appellees concede does not form the basis for their gross

negligence claims. See Mobil Oil, 968 S.W.2d at 921–22.

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 Because the evidence is legally insufficient to support the jury’s findings EBL’s alleged

negligence, separate and apart from its vicarious liability for Rayner’s alleged negligence, was a

proximate cause of the occurrence, we sustain Appellants’ second issue.

Issue No. 3: Gross Negligence of Rayner

In their third issue, Appellants claim the evidence was legally and factually insufficient to

meet the clear and convincing evidence standard of proof necessary for a finding of gross

negligence against Appellants. Having already determined the evidence is legally and factually

insufficient to support a finding of gross negligence against Croom and EBL, we need only

consider the propriety of the jury’s gross negligence finding against Rayner.

At trial, the jury was instructed to decide whether clear and convincing evidence showed

“the harm to RONNIE CLAXTON resulted from gross negligence attributable to DENNIS

EDWARD RAYNER[.]” Gross negligence was defined as an act or omission

which[,] when viewed objectively from the standpoint of [Rayner] at the time of its
occurrence involves an extreme degree of risk, considering the probability and
magnitude of the potential harm to others; and of which [Rayner] has actual,
subjective awareness of the risk involved, but nevertheless proceeds with conscious
indifference to the rights, safety, or welfare of others. [Internal numbering omitted.]

Additionally, the charge instructed the jury, “‘Clear and convincing evidence’ means the measure

or degree of proof that produces a firm belief or conviction of the truth of the allegations sought

to be established.”

In considering the legal and factual sufficiency of the evidence to support a finding with a

heightened burden of proof, such as gross negligence, a reviewing court is held to a higher standard

of review as compared to the standard of review applicable to an issue with a preponderance of

the evidence burden. See City of Keller, 168 S.W.3d at 817. Thus, we must consider all of the

evidence and not just the evidence favoring the verdict to review the legal sufficiency of an award

49
of punitive damages. Id. Additionally, reviewing “what a party knew or why it took a certain

course” requires considering “‘all of the surrounding facts, circumstances, and conditions, not just

individual elements or facts.’” Id. at 817–818 (“Reviewing courts assessing evidence of conscious

indifference cannot disregard part of what a party was conscious of. . . . [A] reviewing court cannot

review whether jurors could reasonably disregard a losing party’s explanations or excuses without

considering what they were.”).

Gross negligence, as opposed to ordinary negligence, involves both a heightened degree of

negligent action in combination with a different mental state of the defendant sufficient to justify

a punitive award. See Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 325 (Tex. 1993). The

objective element, also known as the “entire want of care” test, distinguishes ordinary negligence

from gross negligence because the act involves a higher “degree or quantity” of negligence. Id.

Even where an act or omission is “clearly negligent,” the objective component of gross negligence

requiring “an ‘extreme degree of risk’ is ‘a threshold significantly higher than the objective

“reasonable person” test for negligence.’” Medina v. Zuniga, 593 S.W.3d 238, 249 (Tex.

2019)(quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994)).

The subjective element, referred to as “conscious indifference,” references the defendant’s

mental state, and requires a showing the defendant “proceeded with knowledge that harm was a

‘highly probable’ consequence[,]” and nevertheless undertook the negligent action. Alexander, 868

S.W.2d at 325. It is not required the defendant intended harm; rather, “[t]he plaintiff must show

that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare, and safety.

In other words, . . . the defendant knew about the peril, but his acts or omissions demonstrated that

he didn’t care.” Id. at 326.

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 Appellants correctly point out “gross negligence can never be the result of ‘momentary

thoughtlessness, inadvertence, or error of judgment.’” Id. at 325-26 (citing Burk Royalty Co. v.

Walls, 616 S.W.2d 911, 920 (Tex. 1981)). However, that is because of the subjective portion of

the gross negligence question regarding conscious indifference, rather than the objective

component as Appellants claim. See id. We also note, as the Supreme Court did in Alexander and

Burk Royalty, that the subjective “mental component may be proved indirectly through a

defendant’s conduct.” Id. (citing Burk Royalty Co., 616 S.W.2d at 922).

Assuming without deciding the objective element of the gross negligence inquiry is

satisfied, we limit our analysis to whether the subjective test is met. Appellants argue the evidence

is legally insufficient to prove Rayner continued in a negligent course of conduct—driving off

route—that he knew posed an extreme risk of harm to others. Rather, they claim the evidence

shows Rayner drove off route for several miles without actually knowing he was off route, and

thus was not aware the “harm was a ‘highly probable’ consequence” of his actions for some time.

See Alexander, 868 S.W.2d at 325. In other words, he was unaware of the peril his actions created

because he did not know he was off the permitted route. See id.

Appellees cite to a number of examples where activity that might otherwise be simple

negligence, such as driving while fatigued, rises to a level of gross negligence when operating a

tractor-trailer. But those examples involve the objective portion of gross negligence involving the

elevated risk of the behavior itself. It does not pertain to Rayner’s state of mind, which is the

relevant inquiry in analyzing the subjective element. Appellees also contend the testimony

regarding the truck’s unfit condition to be driven should be considered in deciding whether gross

negligence has occurred, as well as Rayner’s alleged failure to perform a pre-trip inspection on his

vehicle. However, we have already determined the condition of the truck played no part in the

51
incident. Accordingly, no act or omission with respect to the truck’s condition can be the act or

omission which serves as a basis for a finding of gross negligence. See Nowzaradan, 347 S.W.3d

at 739 (recognizing that failure to establish ordinary negligence results in failure to establish gross

negligence).

As it pertains to Rayner’s subjective state of mind preceding the accident, Appellees

contend failing to pay attention to what route he was on, failing to immediately pull over or turn

around when he did discover his mistake, and failing to call the authorities for assistance

constituted gross negligence by Rayner because he knew the extreme risk involved in driving an

oversized load off route. Appellees contend Officer Case testified this crash would not have

occurred if Rayner had not been distracted. However, this was not the officer’s testimony. He

testified between Highway 290, where Rayner exited for U.S. 183 going the wrong direction, and

Highway 71, where Rayner hit the bridge, there were multiple places where Rayner could have

turned around or pulled over. He testified a driver who was not distracted would have seen these

exits.

Although Appellees try to frame Rayner’s failure to realize he was on the wrong route or

see the bridge in time as being the result of distracted driving, there is not sufficient evidence in

the record to support this theory. First, it was not established at what point along the route Rayner

realized he was off route. The only testimony regarding Rayner’s state of mind during his drive

came from him. Rayner testified he believed he drove four to five miles of a five to six mile stretch

of road before realizing he was not on the designated route. The objective fact the total distance

was just over thirteen miles does not change Rayner’s subjective belief it was shorter. More

importantly, his testimony indicates he drove the majority of the wrong stretch of highway under

the mistaken belief it was the correct route. Appellees sought to prove Rayner drove an additional

52
eight or nine miles the wrong direction after realizing he was off route based on his testimony he

believed he traveled five or six miles before realizing his error. But doing so ignores the context

of Rayner’s testimony that he realized he was going the wrong way four or five miles down a five

or six mile stretch of road. Additionally, without any indication at which point on the wrong route

Rayner discovered his mistake, Rayner’s testimony he observed no place to turn around or exit

before he hit the bridge, despite actively looking, becomes entirely plausible.

In considering all the evidence, there is legally insufficient evidence to prove Rayner

knowingly continued upon a dangerous course of conduct despite knowing the extreme risk of

doing so. It is axiomatic the jury is the sole judge of credibility of the witnesses and can disregard

or refuse to give weight to the testimony of witnesses when it is reasonable to do so. See City of

Keller, 168 S.W.3d at 820. However, to disregard Rayner’s testimony regarding his subjective

belief in the time leading up to the accident would be, under the circumstances, unreasonable.

Appellees’ counsel sought an inference from the jury Rayner knowingly continued down the

wrong path for eight or nine miles because of his testimony he discovered he was on the wrong

route after four or five miles. However, to draw this inference, it would require the jury to take as

true Rayner’s subjective belief he discovered his error after four or five miles and disregard his

subjective belief the entire distance traveled in the wrong direction was scarcely any further than

when he discovered his error. The context of Rayner’s testimony regarding the distance he traveled

before and after realizing he was off route cannot be disregarded by the jury. See id. at 812 (“[I]f

evidence may be legally sufficient in one context but insufficient in another, the context cannot be

disregarded even if that means rendering judgment contrary to the jury’s verdict.”).

Additionally, the lack of evidence supporting the verdict warrants consideration. Rayner

testified he knew when carrying an oversized load, if he discovered he deviated from the permitted

53
route, he had to pull over or turn around. He further testified as soon as he discovered he was off

route he immediately began searching for a safe place to pull over or turn around but was unable

to because of construction. Even if a jury chose to disregard that testimony as not credible, there

is not legally sufficient evidence supporting the contrary inference he discovered his mistake and

yet continued traveling in the wrong direction for several miles without looking for a place to stop.

No logical inference can be made from the evidence adduced at trial Rayner had anything to gain

from traveling in the wrong direction, off route, for several miles. More importantly, no more than

a scintilla of evidence was put on at trial indicating that actually occurred, and certainly insufficient

evidence to support the clear and convincing standard of proof borne by the Appellees as the

plaintiffs. See City of Keller, 168 S.W.3d at 817 (“[A] higher burden of proof requires a higher

standard of review.”).

We find the evidence legally insufficient to support the jury’s finding of gross negligence

against Rayner. Appellants’ third issue is sustained.

New Trial is Proper

Where a trial court erroneously denies a motion for JNOV, the proper remedy on appeal

under the circumstances present here is to reverse the judgment of the trial court and render

judgment in favor of the affected parties. See Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706,

710 (Tex. 2003)(rendering judgment in favor of the movant when motion for JNOV was proper

because no evidence supported an essential element of the claim). Appellants sought the relief

from the trial court they now seek on appeal—setting aside the judgment reflecting the jury’s

findings and rendering judgment in Croom and EBL’s favor. Thus, it is proper to grant that same

relief to Appellants as the prevailing party on appeal. See Quaker Petroleum Chemicals Co. v.

Waldrop, 75 S.W.3d 549, 555 (Tex.App.—San Antonio 2002, no pet.)(setting aside the trial

54
court’s judgment reflecting jury’s findings and rendering a take-nothing judgment against

prevailing parties at trial where trial court improperly denied motion for JNOV).

Accordingly, we find it is proper to set aside the jury’s answers and reverse the judgment

of the trial court entering judgment against Croom for actual and exemplary damages and against

EBL and Rayner for exemplary damages. We further find it is proper to render a take-nothing

judgment in favor of Croom against Appellees; render judgment in favor of EBL on Appellees’

claims of negligent entrustment, negligent hiring, training and supervising, negligent maintenance,

and gross negligence; and render judgment in favor of Rayner on gross negligence.

“A remand in the interest of justice after concluding the evidence is legally insufficient to

support a judgment may be appropriate for a variety of reasons.” In the Interest of J.M.T., 617

S.W.3d 604, 608 (Tex.App.—San Antonio 2020, no pet.)). One of those reasons is situations

“where ‘it appears that a party may have proceeded under the wrong legal theory[.]’” Id. (quoting

Boyles v. Kerr, 855 S.W.2d 593, 603 (Tex. 1993)). In cases where only vicarious liability is

alleged, such as against an employer for the actions of its employee, the negligence of the employer

should not be submitted to the jury for an apportionment of liability because the employee is

deemed “one and the same” with his employer. Bedford v. Moore, 166 S.W.3d 454, 461

(Tex.App.—Fort Worth 2005, no pet.); see also Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d

643, 656–57 (Tex.App.—Dallas 2002, pet. denied)(explaining it is improper for an employer to

be included in the apportionment of responsibility question to a jury if the only responsibility

alleged is respondeat superior). Here, because there was legally and factually insufficient evidence

to submit EBL’s negligence to the jury on any theory of the company’s own independent acts of

negligence, EBL should not have been listed in the negligence question on the jury charge. See

Bedford, 166 S.W.3d at 461.

55
 It is fundamental to our system of justice that parties have the right to be judged by
a jury properly instructed in the law. Yet, when a jury bases a finding of liability
on a single broad-form question that commingles invalid theories of liability with
valid theories, the appellate court is often unable to determine the effect of this
error. The best the court can do is determine that some evidence could have
supported the jury’s conclusion on a legally valid theory. To hold this error
harmless would allow a defendant to be held liable without a judicial determination
that a factfinder actually found that the defendant should be held liable on proper,
legal grounds. . . . Accordingly, we hold that when a trial court submits a single
broad-form liability question incorporating multiple theories of liability, the error
is harmful and a new trial is required when the appellate court cannot determine
whether the jury based its verdict on an improperly submitted invalid theory.

Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000)(internal citations omitted).

Here, the trial court submitted a single, broad-form liability question against the Appellants

covering a multitude of theories of liability, several of which were precluded from submission

based on legally or factually insufficient evidence. Without knowing upon which theory(ies) the

jury based its verdict, particularly against EBL, and observing the jury received no instructions or

definitions regarding whether Rayner’s or another’s actions could be imputed to EBL and under

what circumstances, we cannot determine whether the jury’s verdict was based on an improper

theory. See id.; see also TEX.R.CIV.P. 277 (“The court shall submit such instructions and

definitions as shall be proper to enable the jury to render a verdict.”).

Additionally, because of the legally insufficient evidence to submit Croom’s name on the

apportionment of liability, in combination with the jury finding Rayner only fifteen percent

responsible for causing the accident, we cannot assume (a) responsibility was apportioned based

upon proper legal theories, or (b) the jury intended Rayner to be legally responsible for the entirety

of the damages awarded. For all of these reasons, we find it is proper to remand this cause to the

trial court for a new trial for Appellees’ causes of action against Rayner and its respondeat superior

claim against EBL.

56
 CONCLUSION

Having sustained Appellants’ first, second, and third issues, we hold as follows:

1. As to the claims asserted against Michelle Cora Croom in her individual capacity,

we set aside the findings of the jury based upon legally and factually insufficient evidence to

support them, reverse and render judgment in favor of Croom, and order Appellees take nothing

in their causes of action against Croom.

2. As to the independent theories of negligence asserted against EBL—specifically,

negligent entrustment; negligent maintenance; and negligent hiring, training, and supervising—

we set aside the findings of the jury based upon legally and factually insufficient evidence to

support them, reverse and render judgment in favor of EBL, and order Appellees take nothing in

their causes of action to include gross negligence against EBL for negligent entrustment; negligent

maintenance; and negligent hiring, training, and supervising.

3. As to the gross negligence claim asserted against Rayner, we set aside the findings

of the jury based upon legally and factually insufficient evidence to support them, reverse and

render judgment in favor of Rayner, and order Appellees take nothing in their gross negligence

claim against Rayner.

4. We remand this cause for a new trial for Appellees’ remaining causes of action

against Rayner and their respondeat superior claim against EBL because the trial court improperly

submitted a single, broad-form liability question against the Appellants containing unviable

liability theories based on legally or factually insufficient evidence, leaving doubt as to which

theories the jury based its verdict, and gave no or inadequate instructions or definitions regarding

EBL’s vicarious liability.

In holding a new trial is warranted based upon the improper submission of Croom and EBL

57
in the broad form negligence question submitted to the jury, and inadequate jury instruction, we

do not reach Appellants’ fourth issue. In reversing and rendering on Appellees’ claims of gross

negligence against Appellants, we do not reach Appellants’ fifth issue.

August 31, 2022
YVONNE T. RODRIGUEZ, Chief Justice

Before Rodriguez, C.J., Palafox and Alley, JJ.
Palafox, J., Concurring and Dissenting

58