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En Banc Consideration Granted; Order, Concurrence, and Dissents to Order
filed July 27, 2021.
FILED
Marilyn Burgess
ee District Clerk
WA
BS, JUL 27 2021
rime: La Us leeeole—
By_Khiela Jackson—
In The
Hourteenth Court of Appeals
4-31 nO |
NO. 14-18-00967-CV
WERNER ENTERPRISES, INC. AND SHIRAZ A. ALI, Appellants
Vv.
JENNIFER BLAKE, INDIVIDUALLY AND AS NEXT FRIEND FOR
NATHAN BLAKE, AND AS HEIR OF THE ESTATE OF ZACKERY
BLAKE, DECEASED; AND ELDRIDGE MOAK, IN HIS CAPACITY AS
GUARDIAN OF THE ESTATE OF BRIANNA BLAKE, Appellees
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2015-36666
CONCURRENCE TO ORDER
The original panel’s proposed majority opinion was first circulated in March
2021 (seventeen months after the appeal was submitted on oral argument and three
months past our 24-month statutory deadline to resolve matters on appeal) through
no fault of any member of this en banc-court. Because that proposed opinion
RECORDER'S MEMO! RANDUM
quality
This instrument Is of poor
at the time of mas 1g
attempted to overhaul this court’s well-established standard of review concerning
directed verdicts, a majority of this en banc court has voted to examine this appeal
and has decided that no additional briefing is necessary to do so. See Tex. R. App.
P. 41.2(c). 1 concur in the court’s order granting en banc consideration.
/s/_ Meagan Hassan
Justice
En bane court consists of Chief Justice Christopher and Justices Wise, Jewell,
Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. Chief Justice
Christopher and Justices Wise, Jewell, and Wilson would not order en banc
consideration of this case in the first instance and would allow the panel to decide
the case. Justice Hassan authored a Concurrence to Order. Chief Justice
Christopher authored a Dissent to Order, in which Justices Wise, Jewell, and
Wilson joined. Justice Wilson authored a Dissent to Order, in which Justice Wise
joined in full, and in which Chief Justice Christopher and Justice Jewell joined as
to Parts I, II, IN], and IV only.
Publish — Tex. R. App. P. 41.1(a); 41.2(a).
En Banc Consideration Granted; Order, Concurrence, and Dissents to Order
filed July 27, 2021.
oN
Ni
AA
ae
In The
Fourteenth Court of Appeals
NO. 14-18-00967-CV
WERNER ENTERPRISES, INC. AND SHIRAZ A. ALI, Appellants
Vv.
JENNIFER BLAKE, INDIVIDUALLY AND AS NEXT FRIEND FOR
NATHAN BLAKE, AND AS HEIR OF THE ESTATE OF ZACHERY
BLAKE, DECEASED; AND ELDRIDGE MOAK, IN HIS CAPACITY AS
GUARDIAN OF THE ESTATE OF BRIANA BLAKE, Appellees
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2015-36666
DISSENT TO ORDER
I dissent to the order granting en banc consideration at this stage of the case
for two reasons. First, the en banc majority did not allow the panel to complete its
job and issue an opinion, despite the majority’s ability to withdraw that opinion later
through an en banc order. Second, nothing in the briefing warrants en banc
consideration.
1. The Panel Opinions Should Issue.
Texas Rule of Appellate Procedure 41.1 makes clear that decisions are to be
made by panels. This case is assigned to the panel of Justices Wise, Hassan, and
Wilson. While a member of the court, on the member’s own motion, can call for en
banc consideration, such consideration normally happens after a panel opinion has
already issued. Rarely, if there are multiple cases with the same issue, the court may
discuss whether the cases should be heard en banc before a panel decision has issued.
The court may also favor en banc consideration before a panel has acted if the court
discovers a conflict in its own precedents that requires resolution. There are no such
extraordinary circumstances in this case. There is no other appeal pending before
this court with similar issues, nor are there any identified conflicts in our precedents.
Simply put, in the eleven years that J have been on this court, there have been no
grants of en banc consideration in a situation such as this.
There is no harm to the jurisprudence of the court if the panel opinions are
allowed to issue and then en banc consideration is granted later. A decision to grant
en banc consideration can also include the withdrawal of the panel opinions. Once
those opinions are withdrawn, they are no longer part of the precedent of the court.
Gn fact, you cannot even see them on Westlaw.)
There are benefits to allowing the panel opinions to issue. And they are ready
to issue. The parties to the case will know what one panel of the court thinks about
its case. A party who disagrees with the decision can ask for rehearing by the panel
or rehearing en banc. The court can also request responses to these motions. Through
these motions and responses, the parties can help the panel and the en banc court
decide whether the panel opinion needs to be changed. Granting en banc
2
consideration at this stage eliminates those steps. When this order granting en banc
consideration issues, the parties will have no idea why the court decided to grant en
banc consideration.
This same en banc majority has reversed panel opinions written and joined by
two of the dissenting justices! to this order. See e.g., In the Interest of L.C.L., 599
S.W.3d 79 (Tex. App.—Houston [14th Dist.] 2020, pet. denied); State v. Baldwin,
614 S.W.3d 411 (Tex. App.—Houston [14th Dist.] 2020, pet. granted). But the panel
opmions were still allowed to issue in those other cases. What could be so different
about this case? What is the en banc majority afraid of?
2. Nothing in the Briefing Warrants En Banc Consideration.
Nothing in the briefing requests that the court overturn a prior decision of the
Fourteenth Court of Appeals. Therefore, there is no need to “secure or maintain
uniformity of the court’s decision,” a requirement for en banc consideration. See
Tex. R. App. P. 41.2. Nor does the briefing identify any other “extraordinary
circumstance.” Id. The briefing is fact intensive on the issue of duty and breach and
on potential jury charge error. Perhaps after reviewing a motion for rehearing en
banc I might rule differently, but the majority will not allow me that option.
The panel majority opinion has been silenced—not to see the light of day. The
parties are unable to assist the en banc court in its determination of the issues in this
case—as is their night.
I dissent.
* Or with former Chief Justice Frost.
/s/_ Tracy Christopher
Chief Justice
En banc court consists of Chief Justice Christopher and Justices Wise, Jewell,
Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. Chief Justice Christopher
and Justices Wise, Jewell, and Wilson would not order en banc consideration of this
case in the first instance and would allow the panel to decide the case. Justice Hassan
authored a Concurrence to Order. Chief Justice Christopher authored a Dissent to
Order, in which Justices Wise, Jewell, and Wilson joined. Justice Wilson authored a
Dissent to Order, in which Justice Wise joined in full, and in which Chief Justice
Christopher and Justice Jewell joined as to Parts J, II, II, and IV only.
Publish — Tex. R. App. P. 41.1(a); 41.2(a).
En Banc Consideration Granted; Order, Concurrence, and Dissents to Order
filed July 27, 2021.
Z
AN
,
In The
Fourteenth Court of Appeals
NO. 14-18-00967-CV
WERNER ENTERPRISES, INC. AND SHIRAZ A. ALI, Appellants
V.
JENNIFER BLAKE, INDIVIDUALLY AND AS NEXT FRIEND FOR
NATHAN BLAKE, AND AS HEIR OF THE ESTATE OF ZACKERY
BLAKE, DECEASED; AND ELDRIDGE MOAK, IN HIS CAPACITY AS
GUARDIAN OF THE ESTATE OF BRIANNA BLAKE, Appellees
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2015-36666
DISSENT TO ORDER
More than twenty months after this case was first submitted to a panel for
decision, five justices on this court have voted to order sua sponte en banc
consideration in the first instance, without the issuance of any panel opinions, even
though the panel generated a majority opinion and a dissenting opinion, cach of
which stands ready to be issued. No party in this case has requested en banc
consideration, and the en banc majority has not given any reason for using this
exceedingly rare procedure at this late stage of the proceedings. Going directly to
en banc has historically only been done for a few reasons. First, it is sometimes
done if a panel believes it is necessary to overrule a prior opinion of that same
court. However, this appeal does not raise any question as to whether this court,
sitting en banc, should overrule one of its precedents. Second, a court may go
directly to en banc if the panel was unable to agree on a judgment. That is not the
case here. Third, a court may go directly to en banc if the court concludes that
doing so would conserve resources because, given the issues in the case, en banc
rehearing would almost certainly be granted regardless of the panel’s decision.
After more than twenty months of consideration at the panel level, granting en
banc consideration in the first instance at this late stage does not conserve the
resources that normally would be saved by skipping panel consideration. Even if
en banc review of this case were otherwise appropriate, granting en banc
consideration at this late stage deprives the parties of the ability to consider the
panel opinions and provide the court feedback through rehearing motions and
responses. There is simply no reason for this court to send the parties directly to en
banc, not pass go, and not collect $200.
I. A Texas intermediate court of appeals granting en banc consideration in
the first instance is exceedingly rare, and the en banc court should
explain why it has taken this highly unusual action.
Frequently requested but rarely granted, en banc rehearing is disfavored and
is reserved for a tiny percentage of cases that meet one or both of two hard-to-
satisfy requirements.’ En banc rehearing occurs after the panel considers the case,
1 See Tex. R. App. P. 41.2(c).
issues an opinion and judgment, along with any separate writing, and the parties
have an opportunity to present briefing in response to the court’s opinion and
judgment, and any separate writing, including the parties’ views as to whether the
en banc court should review the case.” Texas courts of appeals have the power to
grant en banc consideration of a case in the first instance, but their resort to this
procedure has been exceedingly rare. Research indicates that in the history of
Texas jurisprudence an intermediate court of appeals with more than three justices
has ordered en banc consideration of a case in the first instance only about a dozen
times.? ‘The en banc court should explain why it has taken this highly unusual
action.
Il. This appeal does not raise any question as to whether a precedent of this
court should be overruled.
Among these few cases in which Texas intermediate courts of appeals have
ordered en banc consideration of a case in the first instance, several of the en banc
courts have done so to overrule a precedent established by a prior panel of the
court.4 This makes sense because one court of appeals panel cannot overrule the
holding of a prior panel of the same court, so if an en banc court is inclined to
overrule a prior panel precedent, the en banc court may decide that there is little to
be gained from having a panel decide the case because the panel may not overrule
? Sea Tex. R. App. P. 41.1(a), 41.2(c).
3 Jn this dissent, the term “en banc consideration” refers to an en banc court’s consideration of a
case in the first instance, and the term “en banc rehearing” refers to an en banc court’s
consideration of a case after a panel of the court has decided the case. The term “en banc review”
refers generally to either of the foregoing situations.
4 See, ¢.g., Ross v. Union Carbide Corp., 296 S.W.3d 206, 214-16 (Tex. App.—Houston [14th
Dist.] 2009, pet. denied) (en banc) (granting en banc consideration in the first instance to
overrule prior panel precedent); Harris County v. Lawson, 122 S.W.3d 276, 278 (Tex. App.—
Houston [1st Dist.] 2003, pet. denied) (en banc) (same as Ross); Bui v. State, 68 S.W.3d 830, 834
(Tex. App.—Houston [1st Dist.] 2002, no pet.) (en banc) (same as Ross).
3
the prior precedent.> In today’s case, no party has argued that a precedent of this
court should be overruled, and this appeal does not raise any question as to whether
this court, sitting en banc, should overrule one of its precedents.
Il. The en banc majority did not grant en banc consideration in the first
instance because a majority of the panel could not agree on a
judgment.
Unless a court of appeals with more than three justices votes to decide a case
en banc in the first instance, a case must be assigned for decision to a panel of the
court consisting of three justices.® For a three-justice panel to decide a case, at least
two of the justices on the panel must agree on the appellate judgment.’ In any
appeal, there are several different appellate judgments that might be proper in that
case.* Thus, on a three-justice panel, each of the three justices may disagree with
the other two justices on the panel as to the proper appellate judgment in the case.
No rule or statute provides a procedure to be followed when such an impasse
occurs.!° In the absence of a specific procedural remedy in this situation, the en
3 See Glassman v. Goodfriend, 347 S.W.3d 772, 781 (Tex. App—Houston [14th Dist.] 2011,
pet. denied) (en banc) (noting that under principles of horizontal stare decisis, a court of appeals
panel is bound by a prior holding of another panel of the court absent a decision from a higher
court or the court of appeals sitting en banc that is on point and contrary to
the prior panel holding or an intervening and material change in the statutory law).
§ Sea Tex. R. App. P. 41.1(a).
7 See id.
8 See Tex. R. App. P. 43.2.
° For example, one justice may conclude that the court of appeals should affirm the trial court’s
judgment. Another justice may determine that the court of appeals should reverse the trial court’s
judgment and render the judgment that the trial court should have rendered. And the third justice
may conclude that the court of appeals should reverse the trial court’s judgment and remand the
case for further proceedings.
10 Texas Rule of Appellate Procedure 41.2(b) provides for the Chief Justice of the Supreme
Court of Texas to temporarily assign an eligible justice or judge to resolve an impasse when a
case has been submitted to the en banc court and a majority of the en banc court cannot agree on
an appellate judgment. See Tex. R. App. P. 41.2(b). Texas Rule of Appellate Procedure 41.1(b)
requires the chief justice of the court of appeals to take one of three actions to resolve an impasse
4
banc court might resolve the deadlock at the panel level by granting en banc
consideration in the first instance based on the extraordinary circumstances that a
majority of the three-justice panel could not agree on a judgment and thus the
panel could not decide the case.!!
Thus, if a three-justice panel considers an appeal for a long period of time
without deciding the case and then the en banc court grants en banc consideration
in the first instance, one reason for the en banc court’s action might be deadlock at
the panel level.’? In today’s case, no deadlock occurred at the panel level. Instead,
two of the justices on the panel agreed on a judgment and had a panel majority
opinion ready to issue, and one of the panel members authored a dissenting opinion
that also was readyto issue.
Iv. After more than twenty months of consideration at the panel level,
granting en banc consideration in the first instance at this late stage
does not conserve the resources that normally would be saved by
skipping the panel stage.
An en banc court might skip the panel stage and consider an appeal en banc
in the first instance if the court concludes that doing so would conserve scarce
judicial resources because, given the issues in the case, en banc rehearing would
almost certainly be granted regardless of the panel’s decision. Though such
efficiencies might have weighed in favor of en banc consideration in the first
arising when, after argument, one justice on a three-justice panel cannot participate in deciding
the case and the two remaining justices cannot agree on the appellate judgment. See id. 41.1(b).
Texas Rule of Appellate Procedure 41.1(c) provides a remedy for an impasse arising when, after
‘argument on a court consisting of only three justices, one justice cannot participate in deciding
the case and the two remaining justices cannot agree on the appellate judgment. See id. 41.1(c).
No mule or statute provides a procedure to be followed when three justices participate in deciding
an appeal at the panel level and none of them can agree on an appellate judgment. See id. 41.1,
41.2. No mule or statute provides that additional justices or judges may be assigned to the panel to
resolve such an impasse. See id. 41.1, 41.2.
11 Seg Tex. R. App. P. 41.1(a), 41.2(c).
© Sea id.
instance before or shortly after this case was first submitted for panel
consideration, after twenty months of panel consideration and the generation of
panel opinions that are ready to be issued, efficiency now weighs in the opposite
direction. At this late stage of the proceedings, before considering whether to grant
en banc review, this court should follow the normal procedure: (1) allow the panel
opinions to issue, (2) allow the panel to act on any motions for panel rehearing, (3)
consider any motion for en banc rehearing, and (4) consider whether the court
should grant en banc rehearing.'? Doing so would allow the parties an opportunity
to (1) review the panel majority opinion and the panel dissenting opinion, (2)
submit rehearing motions and responses in opposition, and (3) thus provide the
court with feedback on these opinions and the various issues in this appeal,
including the issue of whether the en banc court should review this case.
The trial in this case lasted 25 days. The reporter’s record in this appeal
contains more than 33,000 pages, and the clerk’s record contains more than 5,800
pages. The parties have submitted lengthy briefing on the many appellate
complaints asserted by appellants/defendants Wemer Enterprises, Inc. and Shiraz
A. Ali (collectively the “Wemer Parties”). In a case with such a big record and so
many complicated issues, the parties’ briefing in response to the panel opinions
likely would significantly aid this court in the disposition of this appeal as well as
in the determination as to whether en banc review should be granted. By granting
en banc consideration now, without the issuance of any panel opinions, the en banc
court has prevented this court from obtaining the parties’ feedback as to the panel
opinions. That is not the objective of en banc consideration.
Rather than taking the exceedingly rare step of ordering en banc
consideration in the first instance, the en banc court should follow the normal
13 See Tex. R. App. P. 41.1(a) & 41.2(c).
procedure, allow the panel opinions to issue, allow the parties to respond, and then
consider whether the court should grant en banc rehearing.'* Even if the en banc
court is convinced that it will grant en banc rehearing after the panel stage ends,
following the normal procedure would very likely provide the en banc court with
helpful briefing from the parties that would enhance the efficiency and the quality
of the en banc court’s adjudication of this case. The en banc court’s failure to do so
wastes a tremendous amount of scarce judicial resources with no apparent
offsetting gain.
V. This court should not grant en banc review because a panel opinion in
this case can be crafted in which the court does not create or continue a
lack of uniformity in this court’s decisions, without any extraordinary
circumstances requiring en banc review.
Even ignoring the late stage of the panel proceedings, this court should not
review this appeal en banc because a panel opinion in this case can be confected in
which the court does not make en banc review necessary by triggering either of the
en banc criteria.!
A. The Tragic Accident
On December 30, 2014 (the “Accident Date”), Jennifer Blake and her three
children, Nathan, Brianna, and Zackery (collectively the “Blakes”) were
passengers in a pickup truck owned and driven by Jennifer’s friend, Zaragoza
“Trey” Salinas, II] (the “Salinas Truck”). While it was sleeting, the Salinas Truck
was traveling in the left lane of eastbound Interstate 20 in West Texas at a speed of
50 to 60 miles per hour when Salinas lost control ofthe truck, apparently due to ice
on the roadway, and the Salinas Truck crossed the 42-foot-wide, grassy median
dividing the eastbound and westbound Janes of Interstate 20 and entered the
\* Sea id.
15 See Tex. R. App. P. 41.2(c).
westbound lanes. Appellant/defendant Shiraz A. Ali was driving a tractor-trailer
(the “Wemer Truck”) owned by appellant/defendant Wemer Enterprises, Inc. Ali
was driving on the westbound side of Interstate 20. Testimony at trial showed that
Ali was driving at about 50 miles per hour when Salinas lost control of his truck.
As soon as Ali saw the Salinas Truck, Ali braked as hard as he could. Ali did not
lose control of his truck. About two seconds after Salinas lost control of his truck,
the Wemer Truck hit the Salinas truck while the Wemer Truck was traveling at
about 43 miles per hour (the “Accident in Question”). Seven-year-old Zackery
Blake died as a result of the accident. His 12-year-old sister Brianna suffered a
severe traumatic brain injury and was rendered a quadriplegic. Nathan Blake
suffered a broken shoulder blade, broken collar bone, bruised lung, and other
injuries. Jennifer Blake suffered a mild traumatic brain injury, contusions, a
hematoma, and other injuries.
B. Trial Court Proceedings
In the trial court below, appellees/plaintiffs Jennifer Blake, Individually and
as Next Friend for Nathan Blake, and as Heir of the Estate of Zackery Blake,
Deceased, and Eldridge Moak, in his capacity as Guardian of the Estate of Brianna
Blake (collectively the “Blake Parties”) sued the Wemer Parties. In addition to
asserting that Werner was vicariously liable for Ali’s negligence under the doctrine
of respondeat superior, the Blake Parties asserted various direct negligence theories
against Werner. The Blake Parties alleged that Wemer, in the operation and
maintenance of its vehicles and in its hiring, training, supervising, and directing of
its employees and agents, owed a duty to the Blakes and the public at large to make
use of Wemer’s property and carry out Werner’s operations in a reasonably
prudent manner, using ordinary care, skill, and expertise as would an ordinarily
prudent commercial motor carrier under the same or similar circumstances, so as
not to cause foreseeable and unreasonable risks of harm to others. The Blake
Parties asserted that Wemer engaged in numerous acts or omissions constituting
negligence. The Blake Parties also alleged that the Wemer Parties’ conduct
constituted gross negligence that was a proximate cause of the occurrence in
question resulting in damages to the Blakes. The Blake Parties sought actual
damages against Ali and Werner, as well as exemplary damages against Wemer.
The case proceeded to a jury trial that lasted 25 trial days. During trial
Wemer stipulated that Ali was acting in the course and scope of his employment at
Werner, and thus Werner would be vicariously liable for Ali’s conduct. After the
close of all the evidence, the trial court denied various motions for directed verdict
asserted by the Werer Parties, including a motion for directed verdict as to the
derivative-liability theories of recovery against Wemer on the grounds that Wemer
admitted Ali was acting in the course and scope of his employment at Wemer and
there was no evidence that Werner was grossly negligent.
Over numerous objections by the Wemer Parties, the trial court submitted
the jury charge. In Question 1, the trial court asked about the negligence, if any, of
Weer acting through employees other than Ali and excluding any negligence by
Werner in training or supervising Ali. The trial court did not specify which acts or
omission or negligence liability theories the jury should consider in answering
Question 1. In Question 2, the trial court asked about the negligence, if any, of
Wemer acting through employees other than Ali and limited the question to the
Blake Parties’ negligent-supervision and negligent-training theories. In Question 3,
the trial court asked the jury whether the negligence, if any, of Ali in the operation
of the Werner Truck on the Accident Date was a proximate cause of the injuries in
question. In Question 4, the trial court asked the jury whether the negligence, if
any, of Salinas was a proximate cause of the injuries in question. In Question 5, the
trial court asked the jury to find a percentage of responsibility for Werner acting
through its employees other than Ali, Ali, and Salinas if the jury answered “yes” to
more than one liability question and if the jury found that the party caused or
contributedto cause the injuries. In Questions 6 and7, the trial court asked the jury
to find percentages of responsibility based on instructions different from those in
Question 5.
The jury rendered a 10-2 verdict. The jury answered “yes” to each of the
first four questions. In response to Question 5, the jury found the following
percentages of responsibility: 70% for Wemer acting through its employees other
than Ali, 14% for Ali, and 16% for Salinas. In response to Question 6, the jury
found the following percentages of responsibility: 30% for Werner acting through
its employees other than Ali, 32% for Ali, and 38% for Salinas. In response to
Question 7, the jury found the following percentages of responsibility: 45% for
Ali, and 55% for Salinas.
In its final judgment, the trial court relied on the percentages of
responsibility found by the jury in response to Question 5. Accordingly, the trial
court found that Werner is jointly and severally liable for all of the damages
recoverable by the Blake Parties'® and that Ali is liable for 14% of those damages.
The trial court ordered that Jennifer Blake, Nathan Blake, and Brianna’s guardian
recover from Werner the respective damages found by the jury, after adding
prejudgment interest and deducting an apportioned credit based on the settlement
with Salinas. The trial court ordered that Jennifer Blake, Nathan Blake, and
Brianna’s guardian recover from Ali 14% of the respective amounts that the trial
court ordered Werner to pay. Including prejudgment interest and court costs, the
trial court’s final judgment against Wemer totaled more than $92 million and
16 Sea Tox. Civ. Prac. & Rem. Code Ann. §33.013(b) (West, Westlaw through 2019 R.S.).
10
against Ali totaled more than $12.9 million.
C. The Werner Parties’ challenges to the sufficiency of the evidence showing
that Ali owed a negligence duty
On appeal, the Wemer Parties present six appellate issues and numerous
appellate complaints under these issues. Under their first issue, the Wemer Parties
assert that the trial evidence is legally and factually insufficient to show that Ali
owed any duty to the Blakes. Without triggering either of the en banc criteria,” a
panel of this court could create an opinion in which the court concludes that Ali
had a common law duty to operate the Wemer Truck at a speed at which an
ordinarily prudent person would operate under the same or similar circumstances
and that the speed at which an ordinarily prudent person would drive under the
same or similar circumstances may be below the speed limit.'* The Wemer Parties
assert that Ali had no duty to actively monitor eastbound Interstate 20 to notice
whether Salinas would encounter a patch of ice and lose control of the Salinas
Truck. Presuming that Ali did not have this duty, the absence of this duty would
not negate Ali’s dutyto operate the Werner Truckat a speed at which an ordinarily
prudent person would operate the Wemer Truck under the same or similar
circumstances.'? A panel of this court could conclude that notwithstanding the
Werner Parties’ arguments, as a matter of law, Ali owed a duty to drive at a speed
at which an ordinarily prudent person would drive under the same or similar
17 See Tex. R. App. P. 41.2(c).
18 See Fitzgerald v. Russ Mitchell Constructors, Inc. 423 S.W.2d 189, 191 (Tex. Civ. App.—
Houston [14th Dist.] 1968, writ ref’d n.r.e.); accord Golleher v. Herrera, 651 S.W.2d 329, 332-
33 (Tex. App.—Amarillo 1983, no writ); Adams v. Morris, 584 S.W.2d 712, 717 (Tex. Civ.
App.—Tyler 1979, no writ); Hokr v. Burgett, 489 S.W.2d 928, 930 (Tex. Civ. App.—Fort Worth
1973, no writ); Billingsley v. Southern Pac. Co., 400 S.W.2d 789, 794 (Tex. Civ. App.—Tyler
1966, ref'd n. r. €.).
19 Sea Fitzgerald, 423 S.W.2d at 191; Golleher, 651 S.W.2d at 332-33; Adams, 584 S.W.2d at
717; Hokr, 489 S.W.2d at 930; Billingsley, 400 S.W.2d at 794.
i
circumstances and that the trial evidence is legally and factually sufficient to
establish that Ali owed this duty.”
D. The Werner Parties’ challenges to the sufficiency of the evidence showing
that Ali breached a negligence duty
In their first issue, the Werner Parties assert that the evidence is legally and
factually insufficient to support any finding that Ali was negligent at the time of
the occurrence in question or on the Accident Date. In Question 3, the trial court
asked the jury, “Was the negligence, if any, of Shiraz Ali in the operation of the
Wemer Truck on December 30, 2014, a proximate cause of the injuries m
question?” The jury answered “yes.”
Ali testified that there was never any ice anywhere on Interstate 20 from the
time Ali left Dallas until the time of the Accident in Question. Some trial evidence
would support a finding that there was no ice on the part of Interstate 20 on which
Ali was operating the Werner Truck and that Ali operated the truck at a speed at
which an ordinarily prudent person would operate the truck under the same or
similar circumstances. Nonetheless, other trial evidence supports findings to the
contrary.
The Werner Parties assert that Ali was driving well below the speed limit of
75 miles per hour. But, the speed at which an ordinarily prudent person would
operate a vehicle under the same or similar circumstances may be below the speed
limit.?! Trial evidence showed that the Wemer Truck was traveling at about 50
miles per hour when Ali hit the brake m response to Salinas losing control of the
2 Sea Pagayon v, Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017); Fitzgerald, 423 S.W.2d
at 191; Golleher, 651 S.W.2d at 332-33; Adams, 584 S.W.2d at 717; Hokr, 489 S.W.2d at 930;
Billingsley, 400 S.W.2d at 794.
21 Sea Fitzgerald, 423 S.W.2d at 191; Golleher, 651 S.W.2d at 332-33; Adams, 584 S.W.2d at
717; Hokr, 489 S.W.2d at 930; Billingsley, 400 S.W.2d at 794.
12
Salinas Truck. Evidence at trial showed that Texas Department of Public Safety
Officer Corey Vanderwilt issued a citation to a driver for driving at an unsafe
speed because the driver was driving 20 to 30 miles per hour westbound on
Interstate 20 at 3:00 p.m. on the Accident Date about 4.5 miles east of the location
of the Accident m Question.”
The Wemer Parties assert
that (1) Ali was driving
within his lane of travel,
on an open road, with the right of way, and in control of his vehicle; (2) when Ali
realized that the Salinas Truck was out of control, 2 seconds before impact, Ali
responded in a reasonable and prudent manner by braking and bringing the Wemer
Truck to a controlled stop; and (3) Ali never Jost traction or experienced any
diminished visibility. Without making en banc rehearing necessary,” a panel of
this court could issue an opinion in which the court concludes that, even presuming
for the sake of argument that each of these propositions is true, under the
applicable standards of review, the trial evidence is legally and factually sufficient
to support a finding that (1) Ali did not operate the Werner Truck at a speed at
which an ordinarily prudent person would operate under the same or similar
circumstances; (2) Ali did not operate the Werner Truck at a speed at which an
ordinarily prudent commercial truck driver would operate under the same or
similar circumstances; (3) Ali was negligent in the operation of the Wemer Truck
on the Accident Date; and (4) Ali was negligent im the operation of the Wemer
” Seg Tex. Transp. Code Ann. § 545.351(b)(1) (stating that “[aJn operator . . . may not drive a
vehicle at a speed greater than is reasonable and prudent under the conditions and having regard
for actual potential hazards then existing”) (West, Westlaw through 2019 RS.); id. § 545.351(c)
(stating that “{aJn operator shall, consistent with Subsections (a) and (b), drive at an appropriate
reduced speed if .. . a special hazard exists with regard to traffic, including . . . weather or
highway conditions”).
33 See Tex.
R. App. P. 41.2(c).
13
Truck at the time of the occurrence in question.”
E. The Werner Parties’ challenges to the sufficiency of the evidence showing
that Ali’s negligence was a proximate cause of the injuries in question or of the
occurrence in question
In their first issue, the Werner Parties assert that the evidence is legally and
factually insufficient to support a finding that any negligence of Ali proximately
caused the injuries in question or the accident, which is the occurrence in question.
In Question 3, the trial court asked the jury, “Was the negligence, if any, of Shiraz
Ali in the operation of the Werner Truck on December 30, 2014, a proximate cause
of the injuries in question?” The jury answered “yes.”
James Crawford, the Blake Parties’ accident-reconstruction expert, testified
that if Ali had been operating the Wemer Truck at 15 miles per hour when Salinas
lost control of the Salinas truck and if Ali took the same actions by promptly
pressing on the brake as hard as Ali could, the Accident in Question never would
have happened.
Andy Irwin, the Wemer Parties’ accident-reconstruction expert, testified that
the Accident in Question would not have occurred if the Werner Truck had been
traveling at 15 miles per hour and in the same location on Interstate 20 westbound
4 See City of Kellerv. Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005); Maritime Overseas Corp.
v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Fitzgerald, 423 S.W.2d at 191; Golleher, 651
8.W.2d at 332-33; Adams, 584 S.W.2d at 717; Hokr, 489 S.W.2d at 930; Billingslev, 400
S.W.2d at 794. At the charge conference, the trial court overruled various objections by the
Wemer Parties to Question 3, including the following: (1) the trial court should change each
reference in Question 3 to “commercial truck driver” to “person”; and (2) the trial court should
delete “on December 30, 2014”in Question 3 and replace it with “at the time of the occurrence
in question.” A panel of this court would not need to address whether the trial court erred in
overruling either of these objections, because the panel could conclude that the trial evidence is
legally and factually sufficient to support a finding that Al breached his negligence duty
regardless of whether the trial court erred in overruling either of these objections.
14
when Salinas lost control of the Salinas Truck. Irwin testified that m this scenario,
the Wemer Truck would have come to a stop “before the crash happenfed].” Irwin
agreed that the Accident in Question would not have happened if the Werner Truck
had been travelingat 15 miles
per hour. According to Irwin “had [Ali] been at 15
[miles per hour] and assuming no other changes to the stream of traffic, [Ali]
doesn’t have the crash. That’s a mathematical fact.”
Without triggering either of the en banc criteria,” a panel of this court could
generate an opinion in which the court concludes that under the applicable
standards of review, the trial evidence is legally and factually sufficient to support
a finding that (1) Ali’s failure to operate the Wemer Truck at a speed at which an
ordinarily prudent commercial truck driver would operate under the same or
similar circumstances was a proximate cause of the occurrence in question and the
injuries in question; (2) Ali’s failure to operate the Wemer Truck at a speed at
which an ordinarily prudent person would operate under the same or similar
circumstances was a proximate cause of the occurrence in question and the injuries
in question; (3) Ali’s negligence was a substantial factor in bringing about the
Blakes’ injuries and the Accident in Question, without which these injuries and this
accident would not have occurred; (4) Ali’s negligence was such that a commercial
truck driver or a person using ordinary care would have foreseen that the Accident
in Question or the injuries to the Blakes, or some similar accident or injury, might
reasonably result therefrom; and (5) Ali’s negligence in operating the Wemer
Truck was a proximate cause of the Accident in Question and the injuries to the
Blakes.”°
5 See Tex. R. App. P. 41.2(c).
26 Sae City
of Keller, 168 S.W.3d at 823, 827; Maritime Overseas Corp., 971 S.W.2d at 406-07;
Lofton v. Taxas Brine Corp., 777 S.W.2d 384, 387 (Tex. 1989); Biggers v. Continental
Bus Sys.,
Inc., 303 S.W.2d 359, 363-67 (Tex. 1957); Villareal v. Zouzalik, 515 S.W.2d 742, 745 (Tex.
15
F. The question of whether the Blake Parties’ derivative theories of negligence
against Werner fail as a matter of law under the Admission Rule
In their third issue, the Wemer Parties note that the Supreme Court of Texas
has not yet ruled definitively on the existence, elements, and scope of negligence
theories against an employer for the negligent training, negligent supervision,
negligent hiring, or negligent retention of an employee, or for related negligence
theories, although intermediate courts of appeals have done so.”” The Wemer
Parties assert that, even presuming that such theories generally are viable, the
negligence theories against Werner based on the acts or omissions of Wemer
employees other than Ali that the trial court submitted to the jury in Question 1 or
Question 2 (the “Question 1 & 2 Theories”) fail as a matter of law for various
reasons. In arguing one of these reasons, the Werner Parties assert that this court
should adopt the rule that the Question 1 & 2 Theories failed as a matter of law
because Wemer admitted at trial that Ali was acting in the course and scope of his
employment at Werner, thus subjecting Wemer to vicarious liability under the
doctrine of respondeat superior for all damages proximately cause by Ali’s
negligence. In this dissent the term “Admission Rule” refers to the following rule:
if an employer admits that an employee was acting in the course and scope of his
employment when the employee allegedly engaged in negligent conduct, that
admission bars a party allegedly injured by the employee’s negligence from
Civ. App—San Antonio 1974, no writ.). At the charge conference, the trial court overruled
various objections by the Wemer Parties to Question 3, including the following: (1) the trial
court should change each reference in Question 3 to “commercial truck driver” to “person”; and
(2) the trial court should delete “on December 30, 2014” in Question 3 and replace it with “at the
time of the occurrence in question”; and (3) the question should refer to the “occurrence in
question” rather than the “injuries im question.” A panel of this court would not need to address
whether the trial court emed in overruling any of these objections, because the panel could
conclude that the trial evidence is legally and factually sufficient to support a finding that Ali’s
i ‘was a proximate cause of either the occurrence in question or the injuries in question,
regardless of whother the trial court erred in overruling either of the first two objections.
27 Ses JBS Carriars, Inc. v. Washington, 564 S.W.3d 830, 842 (Tex. 2018).
16
pursuing derivative theories of negligence against the employer.
Under the theory of respondeat superior, an employer is vicariously liable
for the negligent acts or omissions of its employee if the employee’s negligent acts
or omissions were within the course and scope of the employee’s employment.”
Thus, when an employee acts negligently within the course and scope of
employment, respondeat superior permits a person injured by that negligent
conduct to sue the employee’s employer directly to recover all damages to the
injured person proximately caused by the employee’s negligence.”
Vicarious-liability theories such as respondeat superior are not the only
means by which an injured party may seek to hold an employer liable for the
negligent conduct of an employee. Injured parties may also seek this end by
asserting various derivative theories of liability.*° Derivative theories are like
vicarious theories in that under both theories, the injured party may hold an
employer liable for the negligent conduct of an employee.?! Thus, vicarious and
derivative theories are both dependent on a finding that the employee’s negligence
proximately caused damage to the injured party.” But, derivative theories are
different because they involve the additional requirement that the injured party
prove some type of negligence by the employer separate from the employee’s
negligence, a requirement not present under vicarious theories like respondeat
28 See Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 565 (Tex. 2016).
9 See id.
* See Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Merchants Fast Motor Lines, Inc., 939
S.W.2d 139, 142 (Tex. 1997).
3! See Blaine v. National-Oitwell, L.P., No. 14-09-00711-CV, 2010 WL 4951779, at *8-9 (Tex.
App.—Houston [14th Dist.] Oct. 30, 2018, no pet.) (mem. op.).
® See id.
17
superior. >?
Under derivative theories like negligent training, negligent supervision,
negligent hiring, and negligent retention, an employer may be liable for the
negligent acts or omissions of an employee if the employer engaged in certain
negligent conduct.* Because these theories require negligent conduct by the
employer, the employer’s liability under these theories is not vicarious.*> These
theories only operate to make the employer liable for an employce’s negligence,
and even if an employer. engages in negligent conduct under these theories, an
injured party cannot recover damages against the employer if the employee’s
negligence did not proximately cause damage to the injured party. Therefore,
these derivative theories do not describe an independent basis for recovering
against the employer.*”
Under certain circumstances, an injured party in an accident involving an
employee may have a viable negligence claim against the employer under which
the injured party may recover based on damages proximately caused by the
employer’s negligence rather than the employee’s negligence, without tying the
recovery to any negligent conduct by the employee. For example, an employer
might have negligence liability independent of an employee/driver’s negligence if
the employer knew or should have known that one of the employer’s vehicles had
% See id.
™ See id. (negligent hiring, negligent training, and negligent retention theories) (mem. op.);
Verinakis v. Medical Profiles, Inc., 987 S.W.2d 90, 97-98 (Tex. App—Houston [14th Dist.]
1998, pet. denied) (negligent hiring and negligent supervision theories).
3 See Blaine, 2010 WL 4951779, at *8-9; Varinakis, 987 S.W.2d at 97-98,
3 See Alford v. Singleton, No. 14-17-00504-CV, 2018 WL 5621472, at *4-5 (Tex. App.—
Houston [14th Dist.] Oct. 30, 2018, no pet.) (mem. op.); Blaine, 2010 WL 4951779, at *8-9;
Varinakis, 987 S.W.2d at 97-98.
37 See Alford, 2018 WL 5621472, at *4-5; Blaine, 2010 WL 4951779, at *8-9. For this reason,
the better course is not to call these theories “independent theories” or “independent claims.”
18
defective brakes, yet the employer allowed the employee to drive the vehicle in the
course and scope of employment without warning the employee about the
defective brakes.3* If the brakes promptly failed and proximately caused an
accident injuring a third party, it might be determined that the employee did not
engage in negligent conduct but that the employer’s negligence proximately caused
the accident and the third party’s injuries.” In such a situation, even if no
negligence of the employee proximately caused damage to the injured third party,
the third party still may recover against the employer for the damages proximately
caused by the employer’s independent negligence.” Such independent theories are
a third category of theories under which an injured party may seek to hold an
employer liable.4!
An employer’s admission that an employee was acting in the course and
scope of his employment when the employee allegedly engaged in negligent
conduct constitutes an admission that under the doctrine of respondeat superior, the
employer is vicariously liable for the damages proximately caused by the
employee’s negligence.” Even if a negligent driver is an employee acting outside
the course and scope of employment, the employer may nevertheless be liable
under one of the derivative theories.” But, derivative theories are depende
Preview
P3t En Banc Consideration Granted; Order, Concurrence, and Dissents to Order filed July 27, 2021. FILED Marilyn Burgess ee District Clerk WA BS, JUL 27 2021 rime: La Us leeeole— By_Khiela Jackson— In The Hourteenth Court of Appeals 4-31 nO | NO. 14-18-00967-CV WERNER ENTERPRISES, INC. AND SHIRAZ A. ALI, Appellants Vv. JENNIFER BLAKE, INDIVIDUALLY AND AS NEXT FRIEND FOR NATHAN BLAKE, AND AS HEIR OF THE ESTATE OF ZACKERY BLAKE, DECEASED; AND ELDRIDGE MOAK, IN HIS CAPACITY AS GUARDIAN OF THE ESTATE OF BRIANNA BLAKE, Appellees On Appeal from the 127th District Court Harris County, Texas Trial Court Cause No. 2015-36666 CONCURRENCE TO ORDER The original panel’s proposed majority opinion was first circulated in March 2021 (seventeen months after the appeal was submitted on oral argument and three months past our 24-month statutory deadline to resolve matters on appeal) through no fault of any member of this en banc-court. Because that proposed opinion RECORDER'S MEMO! RANDUM quality This instrument Is of poor at the time of mas 1g attempted to overhaul this court’s well-established standard of review concerning directed verdicts, a majority of this en banc court has voted to examine this appeal and has decided that no additional briefing is necessary to do so. See Tex. R. App. P. 41.2(c). 1 concur in the court’s order granting en banc consideration. /s/_ Meagan Hassan Justice En bane court consists of Chief Justice Christopher and Justices Wise, Jewell, Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. Chief Justice Christopher and Justices Wise, Jewell, and Wilson would not order en banc consideration of this case in the first instance and would allow the panel to decide the case. Justice Hassan authored a Concurrence to Order. Chief Justice Christopher authored a Dissent to Order, in which Justices Wise, Jewell, and Wilson joined. Justice Wilson authored a Dissent to Order, in which Justice Wise joined in full, and in which Chief Justice Christopher and Justice Jewell joined as to Parts I, II, IN], and IV only. Publish — Tex. R. App. P. 41.1(a); 41.2(a). En Banc Consideration Granted; Order, Concurrence, and Dissents to Order filed July 27, 2021. oN Ni AA ae In The Fourteenth Court of Appeals NO. 14-18-00967-CV WERNER ENTERPRISES, INC. AND SHIRAZ A. ALI, Appellants Vv. JENNIFER BLAKE, INDIVIDUALLY AND AS NEXT FRIEND FOR NATHAN BLAKE, AND AS HEIR OF THE ESTATE OF ZACHERY BLAKE, DECEASED; AND ELDRIDGE MOAK, IN HIS CAPACITY AS GUARDIAN OF THE ESTATE OF BRIANA BLAKE, Appellees On Appeal from the 127th District Court Harris County, Texas Trial Court Cause No. 2015-36666 DISSENT TO ORDER I dissent to the order granting en banc consideration at this stage of the case for two reasons. First, the en banc majority did not allow the panel to complete its job and issue an opinion, despite the majority’s ability to withdraw that opinion later through an en banc order. Second, nothing in the briefing warrants en banc consideration. 1. The Panel Opinions Should Issue. Texas Rule of Appellate Procedure 41.1 makes clear that decisions are to be made by panels. This case is assigned to the panel of Justices Wise, Hassan, and Wilson. While a member of the court, on the member’s own motion, can call for en banc consideration, such consideration normally happens after a panel opinion has already issued. Rarely, if there are multiple cases with the same issue, the court may discuss whether the cases should be heard en banc before a panel decision has issued. The court may also favor en banc consideration before a panel has acted if the court discovers a conflict in its own precedents that requires resolution. There are no such extraordinary circumstances in this case. There is no other appeal pending before this court with similar issues, nor are there any identified conflicts in our precedents. Simply put, in the eleven years that J have been on this court, there have been no grants of en banc consideration in a situation such as this. There is no harm to the jurisprudence of the court if the panel opinions are allowed to issue and then en banc consideration is granted later. A decision to grant en banc consideration can also include the withdrawal of the panel opinions. Once those opinions are withdrawn, they are no longer part of the precedent of the court. Gn fact, you cannot even see them on Westlaw.) There are benefits to allowing the panel opinions to issue. And they are ready to issue. The parties to the case will know what one panel of the court thinks about its case. A party who disagrees with the decision can ask for rehearing by the panel or rehearing en banc. The court can also request responses to these motions. Through these motions and responses, the parties can help the panel and the en banc court decide whether the panel opinion needs to be changed. Granting en banc 2 consideration at this stage eliminates those steps. When this order granting en banc consideration issues, the parties will have no idea why the court decided to grant en banc consideration. This same en banc majority has reversed panel opinions written and joined by two of the dissenting justices! to this order. See e.g., In the Interest of L.C.L., 599 S.W.3d 79 (Tex. App.—Houston [14th Dist.] 2020, pet. denied); State v. Baldwin, 614 S.W.3d 411 (Tex. App.—Houston [14th Dist.] 2020, pet. granted). But the panel opmions were still allowed to issue in those other cases. What could be so different about this case? What is the en banc majority afraid of? 2. Nothing in the Briefing Warrants En Banc Consideration. Nothing in the briefing requests that the court overturn a prior decision of the Fourteenth Court of Appeals. Therefore, there is no need to “secure or maintain uniformity of the court’s decision,” a requirement for en banc consideration. See Tex. R. App. P. 41.2. Nor does the briefing identify any other “extraordinary circumstance.” Id. The briefing is fact intensive on the issue of duty and breach and on potential jury charge error. Perhaps after reviewing a motion for rehearing en banc I might rule differently, but the majority will not allow me that option. The panel majority opinion has been silenced—not to see the light of day. The parties are unable to assist the en banc court in its determination of the issues in this case—as is their night. I dissent. * Or with former Chief Justice Frost. /s/_ Tracy Christopher Chief Justice En banc court consists of Chief Justice Christopher and Justices Wise, Jewell, Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. Chief Justice Christopher and Justices Wise, Jewell, and Wilson would not order en banc consideration of this case in the first instance and would allow the panel to decide the case. Justice Hassan authored a Concurrence to Order. Chief Justice Christopher authored a Dissent to Order, in which Justices Wise, Jewell, and Wilson joined. Justice Wilson authored a Dissent to Order, in which Justice Wise joined in full, and in which Chief Justice Christopher and Justice Jewell joined as to Parts J, II, II, and IV only. Publish — Tex. R. App. P. 41.1(a); 41.2(a). En Banc Consideration Granted; Order, Concurrence, and Dissents to Order filed July 27, 2021. Z AN , In The Fourteenth Court of Appeals NO. 14-18-00967-CV WERNER ENTERPRISES, INC. AND SHIRAZ A. ALI, Appellants V. JENNIFER BLAKE, INDIVIDUALLY AND AS NEXT FRIEND FOR NATHAN BLAKE, AND AS HEIR OF THE ESTATE OF ZACKERY BLAKE, DECEASED; AND ELDRIDGE MOAK, IN HIS CAPACITY AS GUARDIAN OF THE ESTATE OF BRIANNA BLAKE, Appellees On Appeal from the 127th District Court Harris County, Texas Trial Court Cause No. 2015-36666 DISSENT TO ORDER More than twenty months after this case was first submitted to a panel for decision, five justices on this court have voted to order sua sponte en banc consideration in the first instance, without the issuance of any panel opinions, even though the panel generated a majority opinion and a dissenting opinion, cach of which stands ready to be issued. No party in this case has requested en banc consideration, and the en banc majority has not given any reason for using this exceedingly rare procedure at this late stage of the proceedings. Going directly to en banc has historically only been done for a few reasons. First, it is sometimes done if a panel believes it is necessary to overrule a prior opinion of that same court. However, this appeal does not raise any question as to whether this court, sitting en banc, should overrule one of its precedents. Second, a court may go directly to en banc if the panel was unable to agree on a judgment. That is not the case here. Third, a court may go directly to en banc if the court concludes that doing so would conserve resources because, given the issues in the case, en banc rehearing would almost certainly be granted regardless of the panel’s decision. After more than twenty months of consideration at the panel level, granting en banc consideration in the first instance at this late stage does not conserve the resources that normally would be saved by skipping panel consideration. Even if en banc review of this case were otherwise appropriate, granting en banc consideration at this late stage deprives the parties of the ability to consider the panel opinions and provide the court feedback through rehearing motions and responses. There is simply no reason for this court to send the parties directly to en banc, not pass go, and not collect $200. I. A Texas intermediate court of appeals granting en banc consideration in the first instance is exceedingly rare, and the en banc court should explain why it has taken this highly unusual action. Frequently requested but rarely granted, en banc rehearing is disfavored and is reserved for a tiny percentage of cases that meet one or both of two hard-to- satisfy requirements.’ En banc rehearing occurs after the panel considers the case, 1 See Tex. R. App. P. 41.2(c). issues an opinion and judgment, along with any separate writing, and the parties have an opportunity to present briefing in response to the court’s opinion and judgment, and any separate writing, including the parties’ views as to whether the en banc court should review the case.” Texas courts of appeals have the power to grant en banc consideration of a case in the first instance, but their resort to this procedure has been exceedingly rare. Research indicates that in the history of Texas jurisprudence an intermediate court of appeals with more than three justices has ordered en banc consideration of a case in the first instance only about a dozen times.? ‘The en banc court should explain why it has taken this highly unusual action. Il. This appeal does not raise any question as to whether a precedent of this court should be overruled. Among these few cases in which Texas intermediate courts of appeals have ordered en banc consideration of a case in the first instance, several of the en banc courts have done so to overrule a precedent established by a prior panel of the court.4 This makes sense because one court of appeals panel cannot overrule the holding of a prior panel of the same court, so if an en banc court is inclined to overrule a prior panel precedent, the en banc court may decide that there is little to be gained from having a panel decide the case because the panel may not overrule ? Sea Tex. R. App. P. 41.1(a), 41.2(c). 3 Jn this dissent, the term “en banc consideration” refers to an en banc court’s consideration of a case in the first instance, and the term “en banc rehearing” refers to an en banc court’s consideration of a case after a panel of the court has decided the case. The term “en banc review” refers generally to either of the foregoing situations. 4 See, ¢.g., Ross v. Union Carbide Corp., 296 S.W.3d 206, 214-16 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (en banc) (granting en banc consideration in the first instance to overrule prior panel precedent); Harris County v. Lawson, 122 S.W.3d 276, 278 (Tex. App.— Houston [1st Dist.] 2003, pet. denied) (en banc) (same as Ross); Bui v. State, 68 S.W.3d 830, 834 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (en banc) (same as Ross). 3 the prior precedent.> In today’s case, no party has argued that a precedent of this court should be overruled, and this appeal does not raise any question as to whether this court, sitting en banc, should overrule one of its precedents. Il. The en banc majority did not grant en banc consideration in the first instance because a majority of the panel could not agree on a judgment. Unless a court of appeals with more than three justices votes to decide a case en banc in the first instance, a case must be assigned for decision to a panel of the court consisting of three justices.® For a three-justice panel to decide a case, at least two of the justices on the panel must agree on the appellate judgment.’ In any appeal, there are several different appellate judgments that might be proper in that case.* Thus, on a three-justice panel, each of the three justices may disagree with the other two justices on the panel as to the proper appellate judgment in the case. No rule or statute provides a procedure to be followed when such an impasse occurs.!° In the absence of a specific procedural remedy in this situation, the en 3 See Glassman v. Goodfriend, 347 S.W.3d 772, 781 (Tex. App—Houston [14th Dist.] 2011, pet. denied) (en banc) (noting that under principles of horizontal stare decisis, a court of appeals panel is bound by a prior holding of another panel of the court absent a decision from a higher court or the court of appeals sitting en banc that is on point and contrary to the prior panel holding or an intervening and material change in the statutory law). § Sea Tex. R. App. P. 41.1(a). 7 See id. 8 See Tex. R. App. P. 43.2. ° For example, one justice may conclude that the court of appeals should affirm the trial court’s judgment. Another justice may determine that the court of appeals should reverse the trial court’s judgment and render the judgment that the trial court should have rendered. And the third justice may conclude that the court of appeals should reverse the trial court’s judgment and remand the case for further proceedings. 10 Texas Rule of Appellate Procedure 41.2(b) provides for the Chief Justice of the Supreme Court of Texas to temporarily assign an eligible justice or judge to resolve an impasse when a case has been submitted to the en banc court and a majority of the en banc court cannot agree on an appellate judgment. See Tex. R. App. P. 41.2(b). Texas Rule of Appellate Procedure 41.1(b) requires the chief justice of the court of appeals to take one of three actions to resolve an impasse 4 banc court might resolve the deadlock at the panel level by granting en banc consideration in the first instance based on the extraordinary circumstances that a majority of the three-justice panel could not agree on a judgment and thus the panel could not decide the case.!! Thus, if a three-justice panel considers an appeal for a long period of time without deciding the case and then the en banc court grants en banc consideration in the first instance, one reason for the en banc court’s action might be deadlock at the panel level.’? In today’s case, no deadlock occurred at the panel level. Instead, two of the justices on the panel agreed on a judgment and had a panel majority opinion ready to issue, and one of the panel members authored a dissenting opinion that also was readyto issue. Iv. After more than twenty months of consideration at the panel level, granting en banc consideration in the first instance at this late stage does not conserve the resources that normally would be saved by skipping the panel stage. An en banc court might skip the panel stage and consider an appeal en banc in the first instance if the court concludes that doing so would conserve scarce judicial resources because, given the issues in the case, en banc rehearing would almost certainly be granted regardless of the panel’s decision. Though such efficiencies might have weighed in favor of en banc consideration in the first arising when, after argument, one justice on a three-justice panel cannot participate in deciding the case and the two remaining justices cannot agree on the appellate judgment. See id. 41.1(b). Texas Rule of Appellate Procedure 41.1(c) provides a remedy for an impasse arising when, after ‘argument on a court consisting of only three justices, one justice cannot participate in deciding the case and the two remaining justices cannot agree on the appellate judgment. See id. 41.1(c). No mule or statute provides a procedure to be followed when three justices participate in deciding an appeal at the panel level and none of them can agree on an appellate judgment. See id. 41.1, 41.2. No mule or statute provides that additional justices or judges may be assigned to the panel to resolve such an impasse. See id. 41.1, 41.2. 11 Seg Tex. R. App. P. 41.1(a), 41.2(c). © Sea id. instance before or shortly after this case was first submitted for panel consideration, after twenty months of panel consideration and the generation of panel opinions that are ready to be issued, efficiency now weighs in the opposite direction. At this late stage of the proceedings, before considering whether to grant en banc review, this court should follow the normal procedure: (1) allow the panel opinions to issue, (2) allow the panel to act on any motions for panel rehearing, (3) consider any motion for en banc rehearing, and (4) consider whether the court should grant en banc rehearing.'? Doing so would allow the parties an opportunity to (1) review the panel majority opinion and the panel dissenting opinion, (2) submit rehearing motions and responses in opposition, and (3) thus provide the court with feedback on these opinions and the various issues in this appeal, including the issue of whether the en banc court should review this case. The trial in this case lasted 25 days. The reporter’s record in this appeal contains more than 33,000 pages, and the clerk’s record contains more than 5,800 pages. The parties have submitted lengthy briefing on the many appellate complaints asserted by appellants/defendants Wemer Enterprises, Inc. and Shiraz A. Ali (collectively the “Wemer Parties”). In a case with such a big record and so many complicated issues, the parties’ briefing in response to the panel opinions likely would significantly aid this court in the disposition of this appeal as well as in the determination as to whether en banc review should be granted. By granting en banc consideration now, without the issuance of any panel opinions, the en banc court has prevented this court from obtaining the parties’ feedback as to the panel opinions. That is not the objective of en banc consideration. Rather than taking the exceedingly rare step of ordering en banc consideration in the first instance, the en banc court should follow the normal 13 See Tex. R. App. P. 41.1(a) & 41.2(c). procedure, allow the panel opinions to issue, allow the parties to respond, and then consider whether the court should grant en banc rehearing.'* Even if the en banc court is convinced that it will grant en banc rehearing after the panel stage ends, following the normal procedure would very likely provide the en banc court with helpful briefing from the parties that would enhance the efficiency and the quality of the en banc court’s adjudication of this case. The en banc court’s failure to do so wastes a tremendous amount of scarce judicial resources with no apparent offsetting gain. V. This court should not grant en banc review because a panel opinion in this case can be crafted in which the court does not create or continue a lack of uniformity in this court’s decisions, without any extraordinary circumstances requiring en banc review. Even ignoring the late stage of the panel proceedings, this court should not review this appeal en banc because a panel opinion in this case can be confected in which the court does not make en banc review necessary by triggering either of the en banc criteria.! A. The Tragic Accident On December 30, 2014 (the “Accident Date”), Jennifer Blake and her three children, Nathan, Brianna, and Zackery (collectively the “Blakes”) were passengers in a pickup truck owned and driven by Jennifer’s friend, Zaragoza “Trey” Salinas, II] (the “Salinas Truck”). While it was sleeting, the Salinas Truck was traveling in the left lane of eastbound Interstate 20 in West Texas at a speed of 50 to 60 miles per hour when Salinas lost control ofthe truck, apparently due to ice on the roadway, and the Salinas Truck crossed the 42-foot-wide, grassy median dividing the eastbound and westbound Janes of Interstate 20 and entered the \* Sea id. 15 See Tex. R. App. P. 41.2(c). westbound lanes. Appellant/defendant Shiraz A. Ali was driving a tractor-trailer (the “Wemer Truck”) owned by appellant/defendant Wemer Enterprises, Inc. Ali was driving on the westbound side of Interstate 20. Testimony at trial showed that Ali was driving at about 50 miles per hour when Salinas lost control of his truck. As soon as Ali saw the Salinas Truck, Ali braked as hard as he could. Ali did not lose control of his truck. About two seconds after Salinas lost control of his truck, the Wemer Truck hit the Salinas truck while the Wemer Truck was traveling at about 43 miles per hour (the “Accident in Question”). Seven-year-old Zackery Blake died as a result of the accident. His 12-year-old sister Brianna suffered a severe traumatic brain injury and was rendered a quadriplegic. Nathan Blake suffered a broken shoulder blade, broken collar bone, bruised lung, and other injuries. Jennifer Blake suffered a mild traumatic brain injury, contusions, a hematoma, and other injuries. B. Trial Court Proceedings In the trial court below, appellees/plaintiffs Jennifer Blake, Individually and as Next Friend for Nathan Blake, and as Heir of the Estate of Zackery Blake, Deceased, and Eldridge Moak, in his capacity as Guardian of the Estate of Brianna Blake (collectively the “Blake Parties”) sued the Wemer Parties. In addition to asserting that Werner was vicariously liable for Ali’s negligence under the doctrine of respondeat superior, the Blake Parties asserted various direct negligence theories against Werner. The Blake Parties alleged that Wemer, in the operation and maintenance of its vehicles and in its hiring, training, supervising, and directing of its employees and agents, owed a duty to the Blakes and the public at large to make use of Wemer’s property and carry out Werner’s operations in a reasonably prudent manner, using ordinary care, skill, and expertise as would an ordinarily prudent commercial motor carrier under the same or similar circumstances, so as not to cause foreseeable and unreasonable risks of harm to others. The Blake Parties asserted that Wemer engaged in numerous acts or omissions constituting negligence. The Blake Parties also alleged that the Wemer Parties’ conduct constituted gross negligence that was a proximate cause of the occurrence in question resulting in damages to the Blakes. The Blake Parties sought actual damages against Ali and Werner, as well as exemplary damages against Wemer. The case proceeded to a jury trial that lasted 25 trial days. During trial Wemer stipulated that Ali was acting in the course and scope of his employment at Werner, and thus Werner would be vicariously liable for Ali’s conduct. After the close of all the evidence, the trial court denied various motions for directed verdict asserted by the Werer Parties, including a motion for directed verdict as to the derivative-liability theories of recovery against Wemer on the grounds that Wemer admitted Ali was acting in the course and scope of his employment at Wemer and there was no evidence that Werner was grossly negligent. Over numerous objections by the Wemer Parties, the trial court submitted the jury charge. In Question 1, the trial court asked about the negligence, if any, of Weer acting through employees other than Ali and excluding any negligence by Werner in training or supervising Ali. The trial court did not specify which acts or omission or negligence liability theories the jury should consider in answering Question 1. In Question 2, the trial court asked about the negligence, if any, of Wemer acting through employees other than Ali and limited the question to the Blake Parties’ negligent-supervision and negligent-training theories. In Question 3, the trial court asked the jury whether the negligence, if any, of Ali in the operation of the Werner Truck on the Accident Date was a proximate cause of the injuries in question. In Question 4, the trial court asked the jury whether the negligence, if any, of Salinas was a proximate cause of the injuries in question. In Question 5, the trial court asked the jury to find a percentage of responsibility for Werner acting through its employees other than Ali, Ali, and Salinas if the jury answered “yes” to more than one liability question and if the jury found that the party caused or contributedto cause the injuries. In Questions 6 and7, the trial court asked the jury to find percentages of responsibility based on instructions different from those in Question 5. The jury rendered a 10-2 verdict. The jury answered “yes” to each of the first four questions. In response to Question 5, the jury found the following percentages of responsibility: 70% for Wemer acting through its employees other than Ali, 14% for Ali, and 16% for Salinas. In response to Question 6, the jury found the following percentages of responsibility: 30% for Werner acting through its employees other than Ali, 32% for Ali, and 38% for Salinas. In response to Question 7, the jury found the following percentages of responsibility: 45% for Ali, and 55% for Salinas. In its final judgment, the trial court relied on the percentages of responsibility found by the jury in response to Question 5. Accordingly, the trial court found that Werner is jointly and severally liable for all of the damages recoverable by the Blake Parties'® and that Ali is liable for 14% of those damages. The trial court ordered that Jennifer Blake, Nathan Blake, and Brianna’s guardian recover from Werner the respective damages found by the jury, after adding prejudgment interest and deducting an apportioned credit based on the settlement with Salinas. The trial court ordered that Jennifer Blake, Nathan Blake, and Brianna’s guardian recover from Ali 14% of the respective amounts that the trial court ordered Werner to pay. Including prejudgment interest and court costs, the trial court’s final judgment against Wemer totaled more than $92 million and 16 Sea Tox. Civ. Prac. & Rem. Code Ann. §33.013(b) (West, Westlaw through 2019 R.S.). 10 against Ali totaled more than $12.9 million. C. The Werner Parties’ challenges to the sufficiency of the evidence showing that Ali owed a negligence duty On appeal, the Wemer Parties present six appellate issues and numerous appellate complaints under these issues. Under their first issue, the Wemer Parties assert that the trial evidence is legally and factually insufficient to show that Ali owed any duty to the Blakes. Without triggering either of the en banc criteria,” a panel of this court could create an opinion in which the court concludes that Ali had a common law duty to operate the Wemer Truck at a speed at which an ordinarily prudent person would operate under the same or similar circumstances and that the speed at which an ordinarily prudent person would drive under the same or similar circumstances may be below the speed limit.'* The Wemer Parties assert that Ali had no duty to actively monitor eastbound Interstate 20 to notice whether Salinas would encounter a patch of ice and lose control of the Salinas Truck. Presuming that Ali did not have this duty, the absence of this duty would not negate Ali’s dutyto operate the Werner Truckat a speed at which an ordinarily prudent person would operate the Wemer Truck under the same or similar circumstances.'? A panel of this court could conclude that notwithstanding the Werner Parties’ arguments, as a matter of law, Ali owed a duty to drive at a speed at which an ordinarily prudent person would drive under the same or similar 17 See Tex. R. App. P. 41.2(c). 18 See Fitzgerald v. Russ Mitchell Constructors, Inc. 423 S.W.2d 189, 191 (Tex. Civ. App.— Houston [14th Dist.] 1968, writ ref’d n.r.e.); accord Golleher v. Herrera, 651 S.W.2d 329, 332- 33 (Tex. App.—Amarillo 1983, no writ); Adams v. Morris, 584 S.W.2d 712, 717 (Tex. Civ. App.—Tyler 1979, no writ); Hokr v. Burgett, 489 S.W.2d 928, 930 (Tex. Civ. App.—Fort Worth 1973, no writ); Billingsley v. Southern Pac. Co., 400 S.W.2d 789, 794 (Tex. Civ. App.—Tyler 1966, ref'd n. r. €.). 19 Sea Fitzgerald, 423 S.W.2d at 191; Golleher, 651 S.W.2d at 332-33; Adams, 584 S.W.2d at 717; Hokr, 489 S.W.2d at 930; Billingsley, 400 S.W.2d at 794. i circumstances and that the trial evidence is legally and factually sufficient to establish that Ali owed this duty.” D. The Werner Parties’ challenges to the sufficiency of the evidence showing that Ali breached a negligence duty In their first issue, the Werner Parties assert that the evidence is legally and factually insufficient to support any finding that Ali was negligent at the time of the occurrence in question or on the Accident Date. In Question 3, the trial court asked the jury, “Was the negligence, if any, of Shiraz Ali in the operation of the Wemer Truck on December 30, 2014, a proximate cause of the injuries m question?” The jury answered “yes.” Ali testified that there was never any ice anywhere on Interstate 20 from the time Ali left Dallas until the time of the Accident in Question. Some trial evidence would support a finding that there was no ice on the part of Interstate 20 on which Ali was operating the Werner Truck and that Ali operated the truck at a speed at which an ordinarily prudent person would operate the truck under the same or similar circumstances. Nonetheless, other trial evidence supports findings to the contrary. The Werner Parties assert that Ali was driving well below the speed limit of 75 miles per hour. But, the speed at which an ordinarily prudent person would operate a vehicle under the same or similar circumstances may be below the speed limit.?! Trial evidence showed that the Wemer Truck was traveling at about 50 miles per hour when Ali hit the brake m response to Salinas losing control of the 2 Sea Pagayon v, Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017); Fitzgerald, 423 S.W.2d at 191; Golleher, 651 S.W.2d at 332-33; Adams, 584 S.W.2d at 717; Hokr, 489 S.W.2d at 930; Billingsley, 400 S.W.2d at 794. 21 Sea Fitzgerald, 423 S.W.2d at 191; Golleher, 651 S.W.2d at 332-33; Adams, 584 S.W.2d at 717; Hokr, 489 S.W.2d at 930; Billingsley, 400 S.W.2d at 794. 12 Salinas Truck. Evidence at trial showed that Texas Department of Public Safety Officer Corey Vanderwilt issued a citation to a driver for driving at an unsafe speed because the driver was driving 20 to 30 miles per hour westbound on Interstate 20 at 3:00 p.m. on the Accident Date about 4.5 miles east of the location of the Accident m Question.” The Wemer Parties assert that (1) Ali was driving within his lane of travel, on an open road, with the right of way, and in control of his vehicle; (2) when Ali realized that the Salinas Truck was out of control, 2 seconds before impact, Ali responded in a reasonable and prudent manner by braking and bringing the Wemer Truck to a controlled stop; and (3) Ali never Jost traction or experienced any diminished visibility. Without making en banc rehearing necessary,” a panel of this court could issue an opinion in which the court concludes that, even presuming for the sake of argument that each of these propositions is true, under the applicable standards of review, the trial evidence is legally and factually sufficient to support a finding that (1) Ali did not operate the Werner Truck at a speed at which an ordinarily prudent person would operate under the same or similar circumstances; (2) Ali did not operate the Werner Truck at a speed at which an ordinarily prudent commercial truck driver would operate under the same or similar circumstances; (3) Ali was negligent in the operation of the Wemer Truck on the Accident Date; and (4) Ali was negligent im the operation of the Wemer ” Seg Tex. Transp. Code Ann. § 545.351(b)(1) (stating that “[aJn operator . . . may not drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for actual potential hazards then existing”) (West, Westlaw through 2019 RS.); id. § 545.351(c) (stating that “{aJn operator shall, consistent with Subsections (a) and (b), drive at an appropriate reduced speed if .. . a special hazard exists with regard to traffic, including . . . weather or highway conditions”). 33 See Tex. R. App. P. 41.2(c). 13 Truck at the time of the occurrence in question.” E. The Werner Parties’ challenges to the sufficiency of the evidence showing that Ali’s negligence was a proximate cause of the injuries in question or of the occurrence in question In their first issue, the Werner Parties assert that the evidence is legally and factually insufficient to support a finding that any negligence of Ali proximately caused the injuries in question or the accident, which is the occurrence in question. In Question 3, the trial court asked the jury, “Was the negligence, if any, of Shiraz Ali in the operation of the Werner Truck on December 30, 2014, a proximate cause of the injuries in question?” The jury answered “yes.” James Crawford, the Blake Parties’ accident-reconstruction expert, testified that if Ali had been operating the Wemer Truck at 15 miles per hour when Salinas lost control of the Salinas truck and if Ali took the same actions by promptly pressing on the brake as hard as Ali could, the Accident in Question never would have happened. Andy Irwin, the Wemer Parties’ accident-reconstruction expert, testified that the Accident in Question would not have occurred if the Werner Truck had been traveling at 15 miles per hour and in the same location on Interstate 20 westbound 4 See City of Kellerv. Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Fitzgerald, 423 S.W.2d at 191; Golleher, 651 8.W.2d at 332-33; Adams, 584 S.W.2d at 717; Hokr, 489 S.W.2d at 930; Billingslev, 400 S.W.2d at 794. At the charge conference, the trial court overruled various objections by the Wemer Parties to Question 3, including the following: (1) the trial court should change each reference in Question 3 to “commercial truck driver” to “person”; and (2) the trial court should delete “on December 30, 2014”in Question 3 and replace it with “at the time of the occurrence in question.” A panel of this court would not need to address whether the trial court erred in overruling either of these objections, because the panel could conclude that the trial evidence is legally and factually sufficient to support a finding that Al breached his negligence duty regardless of whether the trial court erred in overruling either of these objections. 14 when Salinas lost control of the Salinas Truck. Irwin testified that m this scenario, the Wemer Truck would have come to a stop “before the crash happenfed].” Irwin agreed that the Accident in Question would not have happened if the Werner Truck had been travelingat 15 miles per hour. According to Irwin “had [Ali] been at 15 [miles per hour] and assuming no other changes to the stream of traffic, [Ali] doesn’t have the crash. That’s a mathematical fact.” Without triggering either of the en banc criteria,” a panel of this court could generate an opinion in which the court concludes that under the applicable standards of review, the trial evidence is legally and factually sufficient to support a finding that (1) Ali’s failure to operate the Wemer Truck at a speed at which an ordinarily prudent commercial truck driver would operate under the same or similar circumstances was a proximate cause of the occurrence in question and the injuries in question; (2) Ali’s failure to operate the Wemer Truck at a speed at which an ordinarily prudent person would operate under the same or similar circumstances was a proximate cause of the occurrence in question and the injuries in question; (3) Ali’s negligence was a substantial factor in bringing about the Blakes’ injuries and the Accident in Question, without which these injuries and this accident would not have occurred; (4) Ali’s negligence was such that a commercial truck driver or a person using ordinary care would have foreseen that the Accident in Question or the injuries to the Blakes, or some similar accident or injury, might reasonably result therefrom; and (5) Ali’s negligence in operating the Wemer Truck was a proximate cause of the Accident in Question and the injuries to the Blakes.”° 5 See Tex. R. App. P. 41.2(c). 26 Sae City of Keller, 168 S.W.3d at 823, 827; Maritime Overseas Corp., 971 S.W.2d at 406-07; Lofton v. Taxas Brine Corp., 777 S.W.2d 384, 387 (Tex. 1989); Biggers v. Continental Bus Sys., Inc., 303 S.W.2d 359, 363-67 (Tex. 1957); Villareal v. Zouzalik, 515 S.W.2d 742, 745 (Tex. 15 F. The question of whether the Blake Parties’ derivative theories of negligence against Werner fail as a matter of law under the Admission Rule In their third issue, the Wemer Parties note that the Supreme Court of Texas has not yet ruled definitively on the existence, elements, and scope of negligence theories against an employer for the negligent training, negligent supervision, negligent hiring, or negligent retention of an employee, or for related negligence theories, although intermediate courts of appeals have done so.”” The Wemer Parties assert that, even presuming that such theories generally are viable, the negligence theories against Werner based on the acts or omissions of Wemer employees other than Ali that the trial court submitted to the jury in Question 1 or Question 2 (the “Question 1 & 2 Theories”) fail as a matter of law for various reasons. In arguing one of these reasons, the Werner Parties assert that this court should adopt the rule that the Question 1 & 2 Theories failed as a matter of law because Wemer admitted at trial that Ali was acting in the course and scope of his employment at Werner, thus subjecting Wemer to vicarious liability under the doctrine of respondeat superior for all damages proximately cause by Ali’s negligence. In this dissent the term “Admission Rule” refers to the following rule: if an employer admits that an employee was acting in the course and scope of his employment when the employee allegedly engaged in negligent conduct, that admission bars a party allegedly injured by the employee’s negligence from Civ. App—San Antonio 1974, no writ.). At the charge conference, the trial court overruled various objections by the Wemer Parties to Question 3, including the following: (1) the trial court should change each reference in Question 3 to “commercial truck driver” to “person”; and (2) the trial court should delete “on December 30, 2014” in Question 3 and replace it with “at the time of the occurrence in question”; and (3) the question should refer to the “occurrence in question” rather than the “injuries im question.” A panel of this court would not need to address whether the trial court emed in overruling any of these objections, because the panel could conclude that the trial evidence is legally and factually sufficient to support a finding that Ali’s i ‘was a proximate cause of either the occurrence in question or the injuries in question, regardless of whother the trial court erred in overruling either of the first two objections. 27 Ses JBS Carriars, Inc. v. Washington, 564 S.W.3d 830, 842 (Tex. 2018). 16 pursuing derivative theories of negligence against the employer. Under the theory of respondeat superior, an employer is vicariously liable for the negligent acts or omissions of its employee if the employee’s negligent acts or omissions were within the course and scope of the employee’s employment.” Thus, when an employee acts negligently within the course and scope of employment, respondeat superior permits a person injured by that negligent conduct to sue the employee’s employer directly to recover all damages to the injured person proximately caused by the employee’s negligence.” Vicarious-liability theories such as respondeat superior are not the only means by which an injured party may seek to hold an employer liable for the negligent conduct of an employee. Injured parties may also seek this end by asserting various derivative theories of liability.*° Derivative theories are like vicarious theories in that under both theories, the injured party may hold an employer liable for the negligent conduct of an employee.?! Thus, vicarious and derivative theories are both dependent on a finding that the employee’s negligence proximately caused damage to the injured party.” But, derivative theories are different because they involve the additional requirement that the injured party prove some type of negligence by the employer separate from the employee’s negligence, a requirement not present under vicarious theories like respondeat 28 See Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 565 (Tex. 2016). 9 See id. * See Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 142 (Tex. 1997). 3! See Blaine v. National-Oitwell, L.P., No. 14-09-00711-CV, 2010 WL 4951779, at *8-9 (Tex. App.—Houston [14th Dist.] Oct. 30, 2018, no pet.) (mem. op.). ® See id. 17 superior. >? Under derivative theories like negligent training, negligent supervision, negligent hiring, and negligent retention, an employer may be liable for the negligent acts or omissions of an employee if the employer engaged in certain negligent conduct.* Because these theories require negligent conduct by the employer, the employer’s liability under these theories is not vicarious.*> These theories only operate to make the employer liable for an employce’s negligence, and even if an employer. engages in negligent conduct under these theories, an injured party cannot recover damages against the employer if the employee’s negligence did not proximately cause damage to the injured party. Therefore, these derivative theories do not describe an independent basis for recovering against the employer.*” Under certain circumstances, an injured party in an accident involving an employee may have a viable negligence claim against the employer under which the injured party may recover based on damages proximately caused by the employer’s negligence rather than the employee’s negligence, without tying the recovery to any negligent conduct by the employee. For example, an employer might have negligence liability independent of an employee/driver’s negligence if the employer knew or should have known that one of the employer’s vehicles had % See id. ™ See id. (negligent hiring, negligent training, and negligent retention theories) (mem. op.); Verinakis v. Medical Profiles, Inc., 987 S.W.2d 90, 97-98 (Tex. App—Houston [14th Dist.] 1998, pet. denied) (negligent hiring and negligent supervision theories). 3 See Blaine, 2010 WL 4951779, at *8-9; Varinakis, 987 S.W.2d at 97-98, 3 See Alford v. Singleton, No. 14-17-00504-CV, 2018 WL 5621472, at *4-5 (Tex. App.— Houston [14th Dist.] Oct. 30, 2018, no pet.) (mem. op.); Blaine, 2010 WL 4951779, at *8-9; Varinakis, 987 S.W.2d at 97-98. 37 See Alford, 2018 WL 5621472, at *4-5; Blaine, 2010 WL 4951779, at *8-9. For this reason, the better course is not to call these theories “independent theories” or “independent claims.” 18 defective brakes, yet the employer allowed the employee to drive the vehicle in the course and scope of employment without warning the employee about the defective brakes.3* If the brakes promptly failed and proximately caused an accident injuring a third party, it might be determined that the employee did not engage in negligent conduct but that the employer’s negligence proximately caused the accident and the third party’s injuries.” In such a situation, even if no negligence of the employee proximately caused damage to the injured third party, the third party still may recover against the employer for the damages proximately caused by the employer’s independent negligence.” Such independent theories are a third category of theories under which an injured party may seek to hold an employer liable.4! An employer’s admission that an employee was acting in the course and scope of his employment when the employee allegedly engaged in negligent conduct constitutes an admission that under the doctrine of respondeat superior, the employer is vicariously liable for the damages proximately caused by the employee’s negligence.” Even if a negligent driver is an employee acting outside the course and scope of employment, the employer may nevertheless be liable under one of the derivative theories.” But, derivative theories are depende