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holding that a supervisor was not individually liable for negligent hiring of an employee because of a lack of proximate cause, but noting that "the parties agree that [the supervisor] owed a duty to [the plaintiff], and that [the supervisor] violated that duty by failing to strictly comply with the federal regulations for hiring commercial truck drivers"
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No. 04-04-00607-CV
Delivered and Filed: June 22, 2005.
Appeal from the 225th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-00767, Honorable Martha Tanner, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Jack and Shirley Donaldson appeal from the trial court's judgment awarding them damages against J.D. Transportation Company in their wrongful death and survival suit brought as a result of the death of their daughter, Nerissa Villarreal. On appeal, the Donaldsons contend the trial court erred in failing to hold Jaime Dominguez individually liable in addition to holding the company vicariously liable for Dominguez's negligence. A cross appeal was also filed by J.D. Transportation Company and Jaime Dominguez challenging the trial court's findings that Jaime Dominguez was negligent, that his negligence was a proximate cause of the death of Nerissa Villarreal, the proportionate responsibility attributable to any negligence of Jaime Dominguez, and the sufficiency of the evidence supporting the damages awarded. We conclude that there is insufficient evidence to support the trial court's finding that Jaime Dominguez's negligence was a proximate cause of the injuries to and death of Nerissa Villarreal. However, because the trial court's judgment held J.D. Transportation Company vicariously responsible for the entire amount of damages awarded based on the negligence of both Ruben Villarreal and Jaime Dominguez, and did not provide for any individual liability by Jaime Dominguez, our conclusion does not require modification of the trial court's judgment. We therefore affirm the judgment.
Background
On June 2, 2002, Ruben Villarreal, a truck driver employed by J.D. Transportation Company, was driving a commercial truck eastbound on Interstate 10 through New Mexico on his way from California to Texas. Nerissa Villarreal, Ruben's wife and co-driver, was a passenger in the truck. At approximately 4:30 a.m., the truck left the roadway and overturned, striking a guardrail. Both Ruben and Nerissa Villarreal were killed in the accident.
Jack and Shirley Donaldson brought suit against J.D. Transportation and Jaime Dominguez under the wrongful death and survival statutes individually, as the heirs and personal representatives of their daughter's estate, and as next friend of their granddaughter, Charlotte Walters. The suit alleged that the injuries and death of Nerissa Villarreal were proximately caused by the negligence of the driver, Ruben Villarreal, and the negligence of his supervisor, Jaime Dominguez, in the hiring, supervision, and retention of Mr. Villarreal. The Donaldsons alleged that the trucking company was vicariously liable for the negligence of both Ruben Villarreal and Dominguez. They sought damages for the conscious pain and suffering and mental anguish experienced by Nerissa prior to her death in the accident; Nerissa's funeral expenses; their own individual mental anguish and loss of companionship as a result of their daughter's death; and for the pecuniary losses, loss of companionship, and mental anguish of Charlotte Walters as a result of the death of her mother.
The case was tried to the court in May 2004. The trial court entered judgment that the Donaldsons were entitled to recover damages from J.D. Transportation based on the company's vicarious liability for the acts of both Ruben Villarreal and Jaime Dominguez, but ordered that the Donaldsons take nothing against Jaime Dominguez individually. The judgment awarded the following damages: $303,431.60 to Shirley Donaldson; $303,431.60 to Jack Donaldson; and $929,112.00 to Charlotte Walters. In its findings of fact and conclusions of law, the trial court found that Jaime Dominguez, acting in the course and scope of his employment, had been solely responsible for the hiring, supervision, and retention of employees of J.D. Transportation, including Ruben Villareal; that Jaime Dominguez had been negligent in the hiring, supervision, and retention of Ruben; and that this negligence was a proximate cause of the injuries to and death of Nerissa Villarreal. The trial court further found that Dominguez was 51% responsible for the injuries and death of Nerissa and Villarreal was 49% responsible. The trial court concluded that the company was vicariously liable for the negligence of both Ruben Villarreal, as the driver, and Jaime Dominguez. The court further concluded that Dominguez could not be held individually liable.
The parties do not challenge the trial court's findings as to Ruben Villarreal's negligence or J.D. Transportation's vicarious liability for his negligence.
Based on a thorough review of the evidence, we conclude that there is insufficient evidence to support the trial court's finding that Dominguez's negligence in the hiring, supervision, and retention of Villarreal was a proximate cause of the injuries and death of Nerissa Villarreal. However, our conclusion does not require any modification to the trial court's judgment. J.D. Transportation is liable for all of the damages awarded based solely on its vicarious liability for Ruben Villarreal's negligence. Accordingly, we affirm the trial court's judgment.
Analysis
The Donaldsons appeal the trial court's judgment, contending that the judge erred by not holding Dominguez personally liable. J.D. Transportation and Dominguez cross-appeal, challenging the trial court's findings of fact related to Dominguez's negligence as well as the sufficiency of the evidence to support the damages.
Negligence and Proximate Cause
J.D. Transportation and Jaime Dominguez contend in their second issue on cross-appeal, that there is no evidence, or alternatively insufficient evidence, to support the court's finding that the negligence of Jaime Dominguez was a proximate cause of the injuries and death of Nerissa Villarreal. We agree.
When the trial court acts as a factfinder, we review the court's findings under legal and factual sufficiency standards. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Morris v. Powell, 150 S.W.3d 212, 217 (Tex.App.-San Antonio 2004, no pet.); W. Wendell Hall, Standards of Review in Texas, 34 St. Mary's L.J. 1, 182 (2002). The trial court's findings of fact carry the same force and dignity as a jury's verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); McLaughlin, Inc. v. Northstar Drilling Technologies, Inc., 138 S.W.3d 24, 27 (Tex.App.-San Antonio 2004, no pet.). In analyzing the legal sufficiency of the evidence supporting a finding of fact, we examine the record for evidence and inferences that support the challenged finding, while disregarding all contrary evidence and inferences. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994), McLaughlin, Inc, 138 S.W.3d at 27. If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge cannot be sustained. Catalina, 881 S.W.2d at 297; McLaughlin, Inc, 138 S.W.3d at 27. When analyzing the factual sufficiency of the evidence, we consider all of the evidence in the record both for and against the finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); McLaughlin, Inc, 138 S.W.3d at 27. We will hold the evidence factually insufficient if we conclude the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176; McLaughlin, Inc, 138 S.W.3d at 27.
To successfully prosecute their claim of negligent hiring, supervision, or retention, the Donaldsons were required to establish that "(1) the employer owed a legal duty to protect third parties from the employee's actions, and (2) the third party sustained damages proximately caused by the employer's breach of that legal duty." Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 655 (Tex.App.-Dallas 2002, pet. denied) (citing Houser v. Smith, 968 S.W.2d 542, 544 (Tex.App.-Austin 1998, no pet.)). The basis of responsibility for negligent hiring is the employer's own negligence in hiring an incompetent employee whom the employer knows, or by the exercise of reasonable care should have known, to be incompetent or unfit, thereby creating an unreasonable risk of harm to others. Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex.Civ.App. — Tyler 1979, writ ref'd n.r.e.).
The Donaldsons alleged that Dominguez breached his duty to use reasonable care by failing to comply with federal regulations governing the hiring of commercial truck drivers. See 49 C.F.R. §§ 391.15-391.45 (2004). "The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself." Restatement (Second) of Torts § 288B (1) (1965); see also Saenz v. J.D. Rodriguez Produce Trucking Co., No. 04-99-00867-CV, 2000 WL 33225303, at * 3 (Tex.App.-San Antonio Dec. 29, 2000, pet. denied) (not designated for publication) (unexcused violation of a statute constitutes negligence as a matter of law if such statute was designed to prevent injury to the class of persons to which the injured person belongs). Such negligence makes the actor subject to liability; in order to be liable, however, his conduct must still be a legal cause of the harm to the plaintiff. Restatement (Second) of Torts § 288B (1) cmt. b.; Missouri Pac. R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex. 1977) (finding of negligence per se only subjects one to possible liability, and a showing of proximate cause is still required); Saenz, 2000 WL 33225303, at *3 (the factfinder must decide if the tortfeasor committed the act proscribed by the statute and if the act proximately caused the injury); see also Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 427 (Tex.App.-Houston [1st Dist.] 1990, no writ) (federal motor carrier safety regulations merely establish the standard of care required by law).
Proximate cause is comprised of two elements — cause in fact and foreseeability. Leitch v. Hornsby, 935 S.W.2d 114, 118-19 (Tex. 1996). A "negligent act or omission is not a cause in fact unless `but for the conduct the accident would not have happened.'" Williams v. Steves Indus., Inc., 699 S.W.2d 570, 575 (Tex. 1985) (quoting Kerby v. Abilene Christian Coll., 503 S.W.2d 526, 528 (Tex. 1973)). If the same harm would have been sustained even had the actor taken the required precautions, his failure to do so can not be a substantial factor in bringing it about. Restatement (Second) of Torts § 432 (1) cmt. b (1965).
Here, the parties agree that Dominguez and J.D. Transportation owed a duty to Nerissa Villarreal, and that Dominguez violated that duty by failing to strictly comply with the federal regulations for hiring commercial truck drivers. The Donaldsons contend that had Dominguez complied with the requirements, Dominguez would have learned facts that would have prevented the hiring of Ruben Villarreal as a driver — namely, that Ruben Villarreal (1) was an insulin dependent diabetic, and (2) had a prior criminal conviction and subsequent revocation of probation for a drug-related offense in 1996.
An established medical history or clinical diagnosis of diabetes requiring insulin is a disqualifying characteristic for commercial truck drivers. 49 C.F.R. § 391.41 (b)(3) (2004). However, the only evidence of Villarreal's diabetic condition came from Nerissa's family members. There is no requirement that Dominguez interview or seek information from an applicant's family members, nor is there any evidence that had he complied with the other hiring requirements, Dominguez would have learned of the diabetes from another source. See 49 C.F.R. §§ 391.15-391.45. The Donaldsons contend that Villarreal's previous employer had terminated his employment due to his hospitalization for diabetes; however, there is no record evidence to support this contention. Jack Donaldson testified that Villarreal had been let go from his employment with another trucking company. Donaldson further testified that Villarreal's termination occurred before he was hospitalized for a period of time related to his diabetes. Donaldson's testimony does not establish, however, that Villarreal's employment was terminated because of his diabetic condition, or that his previous employer even knew of the condition at the time Villarreal's employment ended. By contrast, there is evidence that Villarreal provided Dominguez with a valid medical release card prior to his employment with J.D. Transportation which contained no indication of diabetes. Based on our review of the record, we conclude there is no evidence that compliance with the hiring regulations would have caused Dominguez to discover Villarreal's diabetes as a condition disqualifying him from employment.
While there was some evidence of Villarreal's prior conviction for a drug-related offense, there was no evidence that had Dominguez learned of this prior conviction, he would have been precluded from hiring Villarreal as a driver. The applicable regulations only require that an applicant's driving record be reviewed for violations of motor vehicle laws within the past three years, but do not require that a criminal background check be completed. 49 C.F.R. §§ 391.21 (b)(8), 391.23 (a)(1) (2004). We conclude that, even had Dominguez complied with the regulatory requirements to review and retain Villarreal's driving record, discovery of a conviction unrelated to motor vehicle laws which occurred six years prior to his application for employment would not necessarily have prevented Dominguez from hiring Villarreal. See id.; Leitch, 935 S.W.2d at 119 (proof of causation can not "turn upon speculation or conjecture").
Based on our review of the record, we conclude there is no evidence to support the trial court's finding that any negligent act or omission by Dominguez was a proximate cause of the injuries and death of Nerissa Villarreal. Without proximate cause, Dominguez's negligence in failing to comply with the federal regulations can not be the basis of liability for either Dominguez individually or for J.D. Transportation under a respondeat superior theory. Therefore, the Donaldsons' sole issue on appeal is overruled and J.D. Transportation's second issue on cross-appeal is upheld. Damages
Because of our conclusions regarding proximate cause, we need not reach the first and third issues raised on cross-appeal.
In issues four through ten on cross-appeal, J.D. Transportation and Dominguez challenge the sufficiency of the evidence to support the various amounts of damages awarded by the trial court. The trial court's conclusions of law state the total amounts awarded to each plaintiff for past and future damages, but do not specify the damage elements to which the amounts correspond. Because there was no request for additional findings of fact or conclusions of law drawing the trial court's attention to any complaint of insufficient evidence on any element of damages, J.D. Transportation and Dominguez are limited to challenging the sufficiency of the evidence supporting the damages awarded to each plaintiff as a whole. Tagle v. Galvan, 155 S.W.3d 510, 516 (Tex.App.-San Antonio 2004, no pet.). Therefore, we need not decide if the evidence is sufficient to support each individual damage element presented by the plaintiffs and will consider the evidence in the record as a whole. Id. at 518. If the amount of damages awarded to each plaintiff is supported by sufficient evidence of any element of damages requested as to that plaintiff, then we will uphold the award. Id. The plaintiffs requested damage awards for the physical pain and suffering and funeral expenses of Nerissa Villarreal; past and future pecuniary losses, mental anguish, and loss of companionship for Charlotte Walters; and past and future mental anguish and loss of companionship for both Jack and Shirley Donaldson.
Funeral expenses are recoverable in a survival action in Texas. Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 34-35 (Tex. 1963).
A child can recover for loss of consortium for a parent's death. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 551 (Tex. 1985).
Because there are no objective guidelines to assess the monetary equivalent of pain and suffering resulting from physical injury, the trier of fact is given considerable discretion in awarding amounts appropriate for such damages. Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 841 (Tex. 1997) ; see also Southwest Texas Coors, Inc. v. Morales, 948 S.W.2d 948, 951 (Tex.App.-San Antonio 1997, no pet.). The process of awarding damages for amorphous, discretionary injuries such as pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss. Tagle, 155 S.W.3d at 518. Even where there is no direct evidence of pain, the factfinder may infer pain from the nature of the injury. See Prescott v. Kroger Co., 877 S.W.2d 373, 376 (Tex.App.-Houston [1st Dist.] 1994, writ denied). The law assumes that physical pain results from a serious injury. City of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex. 1997).
Pecuniary damages are generally subject to more precise valuation than damages for non-economic elements such as mental anguish or pain and suffering. With respect to the plaintiffs' survival action, the parties stipulated to the funeral expenses for Nerissa Villarreal, the costs for transportation of her body back to Texas for burial, and the costs for adoption of Charlotte by her grandparents. The total amount established for these expenses was $6,510. The plaintiffs also requested pecuniary damages on behalf of Charlotte which are intended to compensate her for the loss of parental support and services that she would have received from her mother had Nerissa survived.
To support an award of mental anguish, a party must present either direct evidence of the nature, duration, and severity of her mental anguish, thereby establishing a substantial interruption in her daily routine, or circumstantial evidence of a high degree of mental pain and distress that is greater in degree than mere worry, anxiety, vexation, embarrassment, or anger. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); Lefton v. Griffith, 136 S.W.3d 271, 279 (Tex.App.-San Antonio 2004, no pet.).
Injuries to familial relationships are also considered significant injuries worthy of compensation. Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex. 1983). Loss of companionship and society is described as a loss of the positive benefits that a claimant would have received from a loved one such as love, comfort, and companionship; whereas mental anguish concerns compensation for the harrowing experience resulting from the death of a loved one — i.e.; what negative effects the death has had upon the claimant. Moore v. Lillebo, 722 S.W.2d 683, 687-88 (Tex. 1986).
Sufficiency of the Evidence
Dr. Patricia McFeeley conducted a postmortem examination of Nerissa Villarreal's body after the accident. Dr. McFeeley testified that she was unable to determine whether or not Nerissa had died instantaneously as a result of the accident; however, she did state that there was no indication that Nerissa survived for a prolonged period of time after the collision. She also testified that the majority of Nerissa's injuries were likely sustained after she was ejected from the cab of the truck. J.T. Hayes, an accident reconstructionist, estimated that approximately 14 seconds would have elapsed from the time the truck first began to exit the roadway until Nerissa was likely ejected from the cab of the truck. Nerissa's injuries included bruises, lacerations, and scrapes on her arms, legs, face, and scalp; a possible separation fracture in her neck; contusions and abrasions of her chest and abdomen; multiple rib fractures; a fracture separation through her left knee; a dislocation and fracture of her right ankle; and injuries to her legs that resulted in near amputation.
Dr. McFeeley testified that, due to the extent of the injuries and other information obtained from the scene, Nerissa's death probably occurred within minutes after being ejected from the truck; she was unable to say whether it was medically probable that death was instantaneous because she had not done an internal examination.
Family members described the relationship between Nerissa and her mother, Shirley Donaldson, as "very close," "best friends," "joined at the hip," and "the closest I've ever seen a mother and daughter." The extended family spent most holidays together and saw each other frequently. Though Nerissa had been through some problems that caused her parents worry and disappointment, there was testimony that the relationship between Nerissa and her parents had not been weakened by those experiences. Shirley Donaldson's niece testified that after the accident, Shirley was no longer the ever-happy person she had once been. Others stated that it had been extremely difficult for Shirley and that she had been "completely disabled by the experience." Shirley's son testified that Shirley continued to be very emotional about the incident and that she would periodically break down and just start crying. Relatives also stated that Nerissa's death had affected her father, Jack Donaldson — after Nerissa's death he became quiet and withdrawn, angry, and somber. A nephew testified that both Jack and Shirley had been devastated by the death of their daughter. Both of the Donaldsons testified that they were taking medication for depression at the time of trial to help them cope with the loss of their daughter.
A relative testified that Nerissa referred to Charlotte as her reason for living. Despite some periods of separation during Charlotte's life, the relationship between Nerissa and Charlotte was described as very close and loving. Charlotte was said to miss her mother very much and to react to songs and big trucks that remind her of her mother. Shirley testified that Charlotte's biological father had never provided any type of monetary support for Charlotte, but that Nerissa had been employed for the majority of the time since she graduated from high school and had always contributed to Charlotte's care and support to the best of her ability. Shirley testified that in addition to contributing to household expenses such as the utilities, food, and phone bill, Nerissa purchased clothes and toys for Charlotte and paid for her entertainment costs. Before the accident, Nerissa and Ruben had made plans to move out of the Donaldsons' home in the near future and to provide for Charlotte on their own.
Tom Locke, a professional accountant and expert witness for the Donaldsons, presented testimony regarding Charlotte's pecuniary losses as a result of her mother's death. He divided the pecuniary element into two parts: (1) care, advice, counsel, and teaching; and (2) economic support and maintenance. Based on estimates for each of these two components, Mr. Locke testified that Charlotte's total past pecuniary losses amounted to $67,609 and that the pecuniary losses which she would in reasonable probability sustain in the future amounted to $516,101.
The trial court awarded Charlotte past damages of $67,609 and future damages of $750,000.
We conclude that the evidence taken as a whole is both legally and factually sufficient to support the damages awarded by the trial judge. The record contains more than a scintilla of evidence to support the findings on damages and none are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Catalina, 881 S.W.2d at 297; Cain, 709 S.W.2d at 176; McLaughlin, Inc, 138 S.W.3d at 27.
Based on the foregoing reasons, the trial court's judgment is affirmed.