United States Court of Appeals,
Fifth Circuit.
No. 93-1773.
Ruby Pauline HENDERSON, et al., Plaintiffs-Appellees,
v.
NORFOLK SOUTHERN CORPORATION, et al., Defendants,
Atchison, Topeka & Santa Fe Railway Company and Norfolk Southern
Railway Company, Defendants-Appellants.
June 26, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before DAVIS and JONES, Circuit Judges, and CUMMINGS, District
Judge.1
W. EUGENE DAVIS, Circuit Judge:
The defendants appeal an adverse judgment rendered in favor of
the survivors of Roy Lee Henderson for both compensatory and
punitive damages following a bench trial. Mr. Henderson died as a
result of injuries he suffered when his tractor-trailer overturned.
The district court concluded that the accident resulted from the
combined negligence and gross negligence of the defendants. The
central issue on appeal is whether the district court's findings
are clearly erroneous. For the reasons stated below, we find no
clear error except with respect to the district court's gross
negligence findings. We therefore affirm the judgment except for
the punitive damages award, which we vacate.
I.
1
District Judge of the Northern District of Texas, sitting
by designation.
1
Roy Lee Henderson worked as an independent truck driver
hauling freight for various railroad companies as part of the
so-called truck-railroad "piggy-back" system of transportation.2
On the day of the accident, Henderson picked up a trailer loaded
with crushed glass at the Atchison, Topeka & Santa Fe Railway
Company ("Santa Fe") Terminal in Garland, Texas. Although the
trailer was owned by Norfolk Southern Railway Company ("Norfolk
Southern"), Santa Fe was operating it at the time.3 After leaving
the Santa Fe terminal, Mr. Henderson encountered a detour on
Interstate Highway 35E requiring him to exit onto the frontage
road. Shortly after Mr. Henderson exited the highway, the rear
tandem wheels of the tractor-trailer left the paved portion of the
frontage road, causing both the tractor and trailer to roll over.
Mr. Henderson suffered multiple injuries, including a fracture of
his right hip and contusions to his lungs. He suffered a fatal
heart attack shortly after surgery on his hip.
Mr. Henderson's widow, Ruby Henderson, and Henderson's
children subsequently brought a wrongful death action against Santa
Fe and Norfolk Southern. The plaintiffs alleged that the
defendants were negligent and grossly negligent in failing to
2
The system is comprised of an interconnected network of
truck and railroad shipping routes. Trucks typically transport
cargo over short distances. For longer routes, however, truck
trailers are "piggy-backed" on flat-bed railroad cars and shipped
by rail for a portion of the trip.
3
While each railroad company generally owns a fleet of truck
trailers, the trailers are interchangeable. As with railroad
cars, railroad companies freely operate trailers owned by other
railroad companies. An independent trucking company typically
owns and operates the tractor portion of the truck.
2
properly inspect and maintain the trailer involved in the accident.
The plaintiffs' theory at trial was that the trailer's "slider
sub-assembly," a key component in the trailer's suspension system,
was defective. The plaintiffs contended that this defect prevented
the rear tandem wheels of the trailer from "tracking" directly
behind the tractor, a phenomena known as "off-tracking" or
"dog-tracking."
The plaintiffs' lead expert, Richard Turner, testified that
the rear tandem wheels of Henderson's trailer drifted off the paved
portion of the road into a muddy ditch along the right side of the
frontage road because the trailer was off-tracking over a foot to
the right. As the trailer slipped into the ditch, both the tractor
and trailer turned sideways and rolled over. Turner attributed the
cause of the off-tracking to a defect in the trailer's slider
sub-assembly. He concluded that the defendants were negligent
because they failed to regularly inspect and maintain the slider
sub-assembly according to the trailer manufacturer's maintenance
recommendations.4
Turner based his explanation of the accident in part on the
testimony of several eyewitnesses. Two truck drivers who were
following Henderson's truck testified that they observed
Henderson's trailer off-tracking by over a foot shortly before the
accident. According to their testimony, Henderson slowed to
4
The owner's manual issued by the trailer's manufacturer
recommended maintenance every 20,000 miles or every four months.
The defendants concede that they did not follow these
recommendations at the time of the accident.
3
between 25-35 miles per hour after exiting the highway. They
observed the trailer sliding into the ditch and the resulting
rollover, and testified that the tractor's wheels never left the
pavement before the rollover. Turner also based his conclusion on
evidence of excessive wear on the trailer's right tires, which he
testified is consistent with off-tracking.
The defendants challenged Turner's explanation of the accident
at trial and argued that the accident occurred because Henderson
was speeding when he exited the highway and negligently allowed the
right wheels of the tractor-trailer to drift off the frontage road.
The defendants' experts testified that Henderson allowed the
tractor-trailer to drift off the frontage road and then
overcompensated by turning sharply to the left in order to return
the tractor-trailer to the frontage road. They testified that
Henderson's maneuver caused the tractor-trailer to roll over
because of his high rate of speed. These experts based their
conclusions in part on the testimony of an eyewitness who testified
that Henderson was traveling in excess of 50 miles per hour shortly
before the accident. Finally, an engineer for the trailer
manufacturer testified that his inspection of the trailer revealed
no defects in the slider sub-assembly.
At the close of the bench trial, the district court found in
favor of the plaintiffs. The court found that the accident was
caused by off-tracking, and that the off-tracking resulted from a
defect in the trailer's slider sub-assembly. The court thus
rejected the defendants' theory that Henderson's speed and
4
inattentiveness caused the accident. The court concluded that the
defendants were negligent for failing to properly inspect and
maintain the trailer, and awarded the plaintiffs $1,250,000 in
compensatory damages. The court further found that the defendants
were grossly negligent and awarded the plaintiffs an additional
$1,250,000 in punitive damages. The court then allocated the
$2,500,000 in total damages 50% to Santa Fe and 50% to Norfolk
Southern pursuant to Texas' comparative negligence statute. The
defendants timely appealed.
II.
A.
Santa Fe and Norfolk Southern first challenge the district
court's detailed findings relating to the cause of the accident and
the defendants' failure to properly inspect and maintain the
trailer. The defendants also challenge the district court's
allocation of fault between Santa Fe and Norfolk Southern, and
argue that the court should have allocated some of the fault to
Henderson. We review the district court's factual findings for
clear error. Anderson v. City of Bessemer City, N.C., 470 U.S.
564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).5 We must
5
Santa Fe alternatively argues that the district court erred
in holding that it had a legal duty to inspect its trailers for
latent defects. The existence of a legal duty is generally a
question of law subject to de novo review. See Hayes v. United
States, 899 F.2d 438, 443 (5th Cir.1990) (applying Texas law to
state law claims). Because Santa Fe concedes that it has a duty
to conduct a reasonable inspection for other than latent defects,
See 11 Tex.Jur.3d, Carriers § 705 at 793 (1981) (citing Gulf,
W.T. & P.R. Co. v. Wittnebert, 101 Tex. 368, 108 S.W. 150
(1908)), and because Judge Buchmeyer did not hold that the defect
in this case was latent, we are convinced that Santa Fe's
5
accept the district court's factual findings if they are plausible
when viewed in light of the entire record. Price v. Austin
Independent School Dist., 945 F.2d 1307, 1312 (5th Cir.1991).
Ordinarily, "[w]hen a trial judge's finding is based on his
decision to credit the testimony of one of two or more witnesses,
each of whom has told a coherent and facially plausible story that
is not contradicted by extrinsic evidence, that finding, if not
internally inconsistent, can virtually never be clear error." Id.
After carefully reviewing the record, we conclude that the
district court did not clearly err in finding that the defendants'
negligence was the proximate cause of the accident. The district
court found the plaintiffs' eyewitnesses more credible because the
court believed that they were in the best position to observe the
speed and movement of Henderson's tractor-trailer before the
rollover. The court also found Turner's testimony more credible
because it was the only expert testimony that was consistent with
the testimony of the plaintiffs' eyewitnesses. A district court's
assessment of the relative credibility of opposing expert witnesses
is entitled to deference. See Gulf Consolidated Services, Inc. v.
Corinth Pipeworks, S.A., 898 F.2d 1071, 1077 (5th Cir.), cert.
denied, 498 U.S. 900, 111 S.Ct. 256, 112 L.Ed.2d 214 (1990).
Turner's testimony is consistent with the eyewitness accounts of
argument is essentially a breach of duty question subject to the
clearly erroneous standard. See Hayes, 899 F.2d at 447 (whether
an inspection is reasonable is a question of fact, not a question
of law subject to de novo review). Thus, if a reasonable
inspection would have uncovered the defect, the railroad breached
its duty under Texas law.
6
the accident and the physical evidence of excessive tire-wear and
damage to the slider sub-assembly. We conclude, therefore, that
the district court did not clearly err in crediting Turner's
testimony over the testimony of the defendants' experts.
We also agree that the district court did not clearly err in
apportioning the compensatory damages 50% to Santa Fe and 50% to
Norfolk Southern pursuant to Texas' comparative negligence statute,
Texas Civil Practice & Remedies Code §§ 33.001 et seq.6 As
explained above, the district court was entitled to credit Turner's
explanation of the accident, and Turner testified that neither
Henderson's speed nor inattentiveness contributed to the accident.
Turner also testified that the inspection and maintenance
procedures of Santa Fe and Norfolk Southern were deficient. The
district court was thus entitled to find that the defendants were
equally responsible for failing to detect and correct the defect in
the trailer's slider sub-assembly. Therefore, the district court
did not clearly err in finding Henderson free of fault and
allocating liability for the plaintiffs' compensatory damages 50%
to Santa Fe and 50% to Norfolk Southern.
B.
Santa Fe and Norfolk Southern next argue that the district
court clearly erred in finding them grossly negligent and awarding
the plaintiffs punitive damages. The district court cited three
6
The district court's allocation of fault under Texas'
comparative negligence statute is a question of fact subject to
the clearly erroneous standard. See Spruiell v. Schlumberger
Ltd., 809 S.W.2d 935, 940 (Tex.App.—Texarkana 1991, no writ).
7
principal grounds for its gross negligence finding. First, the
court found that the defendants ignored the trailer manufacturer's
recommendation that the trailer be periodically inspected and
maintained. The court also credited Turner's testimony that the
defendants' failure to inspect and maintain the slider sub-assembly
created a "significant hazard." Finally, the court found that the
defendants ignored maintenance and inspection guidelines issued by
the Association of American Railroads ("AAR") in 1987.7 According
to the guidelines:
Failure to check for proper locking pin engagement prior to
driving away and failure to take proper preventative
maintenance measures can lead to slider malfunction and
possible accident, resulting in property damage, personal
injury, or even death.
Based on these warnings and Turner's testimony, the court concluded
that "both defendants exhibited a wont of care with respect to the
inspection and maintenance of their respective trailers to the
degree that it does show actual conscious indifference to the
rights, welfare and safety of the persons affected by it, including
cartage drivers like Mr. Henderson and the traveling public."
Under Texas law, a plaintiff may obtain punitive damages upon
showing that the defendant was grossly negligent. See Wal-Mart
Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.1993). The
standard for proving gross negligence under Texas law is
considerably more stringent than the "reasonable person" standard
for ordinary negligence. Id. The Texas Supreme Court recently
7
The AAR's Interchange Rules Committee develops rules and
standards governing the interchange of railroad cars and truck
trailers.
8
formulated a two-prong requirement for proving gross negligence:
(1) viewed objectively from the standpoint of the actor, the
act or omission must involve an extreme degree of risk,
considering the probability and magnitude of the potential
harm to others, and (2) the actor must have actual, subjective
awareness of the risk involved, but nevertheless proceed with
conscious indifference to the rights, safety, or welfare of
others.
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994).
Proof of both prongs is required before a plaintiff may recover
punitive damages. Id. Based on our review of the record, we
conclude that the plaintiffs' evidence is insufficient to satisfy
Moriel 's first prong.
To satisfy Moriel 's first prong, the plaintiff must prove
that the defendant's conduct involved an "extreme risk of harm."
Id. Whether a defendant's conduct poses an extreme risk of harm
requires consideration of both the magnitude of the potential harm
to the plaintiff and the likelihood that serious harm will occur:
As we said in Wal-Mart, the "extreme risk" prong is not
satisfied by a remote possibility of injury or even a high
probability of minor harm, but rather "the likelihood of
serious injury to the plaintiff."
Moriel, 879 S.W.2d at 22 (quoting Wal-Mart, 868 S.W.2d at 326-327).
The plaintiff must thus show that the defendant's conduct created
a strong likelihood of serious harm, "such as death, grievous
physical injury, or financial ruin." Id. at 24.
The record does not support the plaintiffs' contention that
the defendants' conduct created an extreme risk. The record
supports the district court's finding that off-tracking was the
cause of the accident, and that the off-tracking resulted from a
defect in the trailer's slider assembly. However, the record fails
9
to show that off-tracking poses an extreme risk of serious injury.
Indeed, in testifying that Henderson was free of negligence despite
his failure to notify anyone of the off-tracking, the plaintiffs'
experts conceded that most truck drivers do not consider
off-tracking to be particularly hazardous. Significantly, the
record does not reflect any evidence of serious accidents resulting
from off-tracking. See Wal-Mart, 868 S.W.2d at 327 (holding that
a defect in the defendant's parking lot did not create an extreme
risk of harm because the record revealed no evidence that the
defect had caused any serious injuries before the plaintiff's
accident).
The plaintiffs counter by arguing that off-tracking is too
narrow a focus for evaluating the risk of the defendants' conduct.
They contend that off-tracking is merely a symptom of the
defendants' failure to properly inspect and maintain the trailer.
They argue that punitive damages should be based on the defendants'
failure to implement a system-wide inspection and maintenance
program to ensure that their trailers are safe. Without such a
program, the plaintiffs argue, the likelihood of a serious accident
is significant given the volume of the defendants' traffic. To
support their position, the plaintiffs point to the 1987 AAR
maintenance guidelines. The plaintiffs contend that the warnings
in these guidelines establish that the defendants' omissions posed
significant risks beyond mere off-tracking.
The plaintiffs' attempt to broaden the scope of the
defendants' omissions does not alter our analysis under Moriel.
10
However broadly the plaintiffs choose to characterize the
defendants' omissions, Moriel requires them to prove not only that
the defendants' omissions created a risk of serious harm, but also
that the likelihood of the harm occurring was more than remote.
879 S.W.2d at 22. The record supports the plaintiffs' contention
that a slider malfunction could have caused more severe problems
than off-tracking. For example, the record suggests that a
catastrophic disengagement of the slider sub-assembly could cause
the trailer to separate from the tractor and that such an accident
could result in serious injuries.
However, the plaintiffs' argument must ultimately fail because
the record does not establish that such a catastrophic accident was
likely to occur as a result of the defendants' failure to inspect
and maintain their trailers. The record contains no evidence
demonstrating that such accidents occur regularly. At most, the
record suggests that the defendants' omissions might pose a remote
possibility of serious injury. The Texas Supreme Court expressly
rejected such a broad definition of gross negligence in Wal-Mart,
868 S.W.2d at 327. According to the court, the potential for
serious injury is present for virtually all negligent conduct.
Such a broad definition of "extreme risk" would thus "eliminate any
meaningful distinction between negligence and gross negligence."
Id. Therefore, the mere fact that the defendants' conduct creates
the potential for serious injury is not sufficient to satisfy
Moriel 's first prong.
We conclude that the plaintiffs failed to establish that the
11
defendants were grossly negligent under the standards set forth in
Moriel. The district court thus clearly erred in finding the
defendants grossly negligent and awarding the plaintiffs punitive
damages.
III.
For the reasons stated above, we AFFIRM the district court's
judgment in all respects except for its award of punitive damages,
which we VACATE. We REMAND this case to the district court for
entry of judgment consistent with this opinion.
AFFIRMED in part; VACATED and REMANDED in part.
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