Arguments in briefs submitted in the ongoing Werner Enterprises nuclear verdict case in Texas have tended thus far to focus on legal questions such as whether various precedents should have done more to protect the truckload carrier from the giant judgment for a horrific crash that took place almost exactly 10 years ago.
But when the case went before the full Texas Supreme Court on Tuesday, oral arguments by Werner’s lead appellate attorney and his counterpart on the plaintiffs’ side went right to the more emotional and controversial issue that people in the trucking world see as the case’s key question: What exactly did the truck driver do wrong?
At stake is a judgment that came down in 2018 for a little less than $90 million, a figure that with interest now sits at well over $100 million. When the judgement was first announced, there was general agreement in the industry that it was the largest verdict ever handed down against a trucking company. (It has since been surpassed again and again, though winning a big judgment and actually collecting it are two different things.)
Thomas Wright, an attorney with the high-powered law firm of Baker Botts representing Werner, opened his arguments by saying that the liability the Harris County, Texas, jury hit Werner with, and that was then upheld on appeal, was based on an interpretation of the law that led to the courts “finding a new duty on Warner out of whole cloth, and disregarded all the cases from Texas state courts and around the country.”
‘Admissions rule’ remains a key issue
One of the key arguments of the Werner legal team is that courts have incorrectly applied the “admission rule.” It’s a complex legal standard – one that is still very much an ongoing issue for the Texas trucking sector. But it is one which trucking companies that find themselves as defendants see as protecting them if they make admissions upfront about accepting a certain degree of responsibility for the incident that led to the litigation.
But Wright, in order to make that argument, needed to talk about what happened on Interstate 20 near Odessa, Texas, just after Christmas in 2014. That’s when a car driven eastbound by Zaragoza Salinas in wintry conditions spun out of control, crossed the median and smashed into a Werner truck driven westbound by Shiraz Ali. A 7-year-old boy from the family being transported by Salinas was killed, his sister had brain injuries that have been described as “catastrophic,” and the family’s mother and brother of the other two children were seriously injured.
The Harris County jury found Werner (NASDAQ: WERN) 70% liable and Ali was hit with 14%. The balance of the liability went to Salinas.
The jury’s fundamental finding was that Ali was going too fast given the icy conditions on the road, and he wouldn’t have been doing so had Werner trained him better. In particular, the truck wasn’t equipped with a CB, limiting the information that Ali might have received about road conditions that could have led him to slow down. And if he was going slower, according to the jury’s logic, he wouldn’t have been where he was when Salinas came careening across the media and smashed into the Werner truck.
A precedent from almost a century ago comes into play
Wright, in his arguments before the court, cited a New York precedent known as Palsgraf, which dates back almost 100 years.
The precedent in that case generally limits corporate liability for an incident that injures or kills an individual but where there is no clear reason to believe the company was at fault. “This court has repeatedly endorsed the limited duty that Palsgraf says, that the injured party has to be so situated with the wrong act that the injury to him or her might reasonably have been foreseen,” Wright said.
That could not have happened on that icy road in West Texas, Wright argued.
“If you cannot realistically travel down the highway in any kind of weather, if you have to anticipate that somebody might without warning leave the interstate … I mean, that’s why they built the interstate highway system,” Wright said in his argument, which was available through an online feed.
Could happen any time
The type of accident that occurred between the Werner truck and the Salinas pickup could happen “not just in rain or ice, but some of those happen on a dry day,” Wright said. “A tire can blow out. And so if you have to continually anticipate that, if you have to drive so that you have to be able to stop, no matter if people are running red lights against the light in our lane, what’s the point of having a highway?”
Truck driver Ali was within the speed limit, Wright argued, though the jury apparently found he should have been going slower given the weather conditions.
The Court of Appeals that upheld the Harris County verdict, Wright said, created a “duty” for drivers that had not previously existed.
One of the judges asked Wright whether Ali had any “duty.” “Yes, to the people within his zone, within his land of trouble, not just the one lane but the two lanes in the direction of his travel,” Wright said. “Now, if the car had come across a minute before and was stuck in his lane, OK, then he’s got time to react.”
The arguments of the family impacted by the crash
Darrin Walker, the attorney representing the Blake family whose members were in Salinas’ car and were killed or injured in the accident, said the “new duty” that Wright said was created by the Court of Appeals verdict was not a precedent.
“Ali’s duty was the well-established duty to operate his motor vehicle with reasonable care under all the surrounding circumstances, including weather and traffic conditions,” Walker said. The attorney referred to Ali’s “specialized training and knowledge as a professional truck driver,” though testimony in the earlier cases revealed that Ali was in his first month on the job. The conditions on the road should have led to “reasonable care [that] would require the party to desist from driving,” Walker argued.
As to the admission rule, time restraints on the attorney’s arguments – 40 minutes in total across three presentations, including a second Baker Botts attorney representing Werner – did not allow Walker to take up the issue at length. But in the brief he filed with the Supreme Court prior to the hearing, Walker argued that “given the public interest in safety on the highways, it is hard to justify a rule that immunizes employers from liability for injuries resulting from their improper training or supervision of their drivers.”
One issue that came up in Walker’s presentation was the relative speed of the two drivers. According to Walker, Ali and Salinas were traveling between 60 and 65 mph.
But according to Walker, Salinas had just entered the area of bad weather – he put the car’s time in the icy conditions at about five minutes – whereas he said Ali had been driving in a wintry mess for about an hour and had seen other spinouts and accidents caused by the conditions.
During his limited remarks on the admission rule, Walker said applying the rule “disincentives employers from training and supervising their employees,” because the rule is seen as limiting how much liability can be applied to a worker’s employer. Once a company admits a worker was acting in his or her normal employment when a potentially negligent action occurred, it limits the consideration of the company’s overall liability in the lawsuit.
If a company breaches a duty to adequately train a worker, Walker said, “and as a foreseeable result of that breach, its untrained employee causes injury, the company by that breach of duty has contributed to the harm. It is unfair to hide that from the jury.”
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