Sarah Gregory and New Prime, Inc. v. Jaswinder Chohan ( 2023 )

Supreme Court of Texas
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No. 21-0017
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Sarah Gregory and New Prime, Inc.,
Petitioners,
v.
Jaswinder Chohan, et al.
Respondents
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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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Argued January 31, 2023
JUSTICE BLACKLOCK announced the Court’s judgment and
delivered an opinion, in which Chief Justice Hecht and Justice Busby
joined in full, and in which Justice Bland joined except as to Parts II.C.2
and II.D.
JUSTICE DEVINE filed an opinion concurring in the judgment, in
which Justice Boyd joined.
JUSTICE BLAND filed an opinion concurring in part and concurring
in the judgment.
Justice Lehrmann, Justice Huddle, and Justice Young did not
participate in the decision.
This case arises from a fatal accident on an icy, unlit stretch of
highway near Amarillo. An eighteen-wheeler driven by Sarah Gregory
jackknifed across lanes of traffic, and the resulting pileup caused four
deaths. Among those killed was Bhupinder Deol, a truck driver, but
more importantly a husband, son, and father of three.
Deol’s wife and family brought a wrongful death action against
Gregory and her employer, New Prime, Inc. The jury awarded
approximately $16.8 million to Deol’s family. Noneconomic damages—
awarded to six family members for past and future mental anguish and
loss of companionship—accounted for just over $15 million of the total.
On appeal, the defendants challenged the size of the noneconomic
damages award. The en banc court of appeals affirmed, concluding that
the award was not “flagrantly outrageous, extravagant, and so excessive
that it shocks the judicial conscience.” 615 S.W.3d 277, 314 (Tex. App.—
Dallas 2020). The chief issue before this Court is the size of the
noneconomic damages award.
Assigning a dollar value to non-financial, emotional injuries such
as mental anguish or loss of companionship will never be a matter of
mathematical precision. But when properly called upon, appellate
courts have a duty to ensure that the damages awarded for a
noneconomic injury are the result of a rational effort, grounded in the
evidence, to compensate the plaintiff for the injury. As we held over
twenty years ago in Bentley v. Bunton, courts do not fully discharge that
duty merely by concluding that a verdict is not so “excessive or
unreasonable” as to shock the judicial conscience. 94 S.W.3d 561, 606
(Tex. 2002). We said almost 140 years ago that “[w]hat shocks the
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conscience or manifests passion or prejudice in the jury are tests too
elastic for practical use in the great majority of cases.” Gulf, C. & S. F.
Ry. Co. v. Dorsey, 18 S.W. 444, 445 (Tex. 1886). Our precedent requires
courts reviewing the size of noneconomic damages awards to do more
than consult their consciences.
As we have said before when reviewing mental anguish damages,
“[t]here must be evidence that the amount found is fair and reasonable
compensation, just as there must be evidence to support any other jury
finding.” Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607,
614 (Tex. 1996) (emphasis added). Rather than limit review of
noneconomic damages to elastic, impractical standards like the “shocks
the conscience” test, our precedent instead requires evidence of both the
“existence of compensable mental anguish” and “evidence to justify the
amount awarded.” Id.Today’s case requires us to apply these principles from our prior
holdings regarding mental anguish damages for the first time to a
wrongful death claim. “While the impossibility of any exact evaluation
of mental anguish requires that juries be given a measure of discretion
in finding damages, that discretion is limited.” Bentley, 94 S.W.3d at
606 (quoting Saenz, 925 S.W.2d at 614). No matter the cause of action,
the results of litigation should always be justifiable based on evidence
and reason. “Juries cannot simply pick a number and put it in the
blank.” Id. To guard against arbitrary outcomes and to ensure that
damages awards are genuinely compensatory, the plaintiff in a wrongful
death case should be required to demonstrate a rational connection,
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grounded in the evidence, between the injuries suffered and the dollar
amount awarded.
Mental anguish and loss of companionship damages are neither
punitive nor exemplary. They are compensatory. That label is illusory
if courts do not require a rational connection between the amount
awarded and the evidence of injury. While precision is not required—
and surely cannot be achieved when placing a dollar value on the
emotional toll of losing a loved one—some rational basis for the size of
the judgment is a minimal requirement on which the law must insist.
Here, the plaintiffs produced—and the court of appeals
recounted—sufficient, even ample, evidence demonstrating the existence
of compensable mental anguish and loss of companionship suffered by
Deol’s family. But nothing in the record or in the plaintiffs’ arguments
demonstrates a rational connection between the injuries suffered and
the amount awarded. The arguments made to the jury regarding the
proper amount included references to the price of fighter jets, the value
of artwork, and the number of miles driven by New Prime’s trucks.
Rather than rationally connect the evidence to an amount of damages,
these arguments did just the opposite by encouraging the jury to base
an ostensibly compensatory award on improper considerations that have
no connection to the rational compensation of Deol’s family.
We also agree with Gregory and New Prime that the trial court
incorrectly excluded a responsible third party from the jury charge.
Because a reasonable jury could have determined that another
company’s truck was at least partly responsible for Deol’s death, the
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trial court should not have denied the defendants’ request to designate
that company as a responsible third party.
The judgment of the court of appeals is reversed, and the case is
remanded for a new trial.
I.
Around midnight on November 23, 2013, Sarah Gregory was
driving a New Prime eighteen-wheeler eastbound on Interstate 40
toward Amarillo. The road was icy, traffic was light, and Gregory was
traveling at 58 miles per hour. The highway had two lanes in each
direction, divided by a median. In response to brake lights indicating a
traffic jam a half a mile or so ahead, Gregory applied the brakes. The
truck began to slide on the ice, and she lost control of it. The truck
“jackknifed,” which means that its trailer began to skid, pushed the cab
out of alignment with the trailer, and eventually folded the cab back
toward the trailer, rendering the truck immovable. When the truck
came to rest, it was blocking the entire left lane and some of the right
lane. Gregory did nothing to warn the drivers behind her of the
obstruction. The highway was unlit, so approaching drivers had little
notice of the hazard shrouded in the darkness ahead.
A tragic multi-vehicle pileup ensued. In addition to the New
Prime truck, the accident involved two passenger vehicles and six other
eighteen-wheelers. The first two vehicles to arrive on the scene were
both trucks—a Maryland Trucking Company truck driven by Bhupinder
Deol and a Danfreight Systems truck. Deol came first. Both trucks
managed to steer around the New Prime truck on the right, but the
Danfreight truck clipped Deol’s truck after both had passed by. Deol’s
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truck eventually stopped on the right shoulder of the road not too far
past the disabled New Prime truck, and the Danfreight truck stopped
on the grass between the highway and the feeder road.
Next came a truck owned by ATG Transportation. Unlike the two
trucks before it, the ATG truck did not make it around the New Prime
truck. Instead, its driver veered right and lost control. The ATG truck
turned onto its side on the right shoulder, blocking most of the
remaining space between the New Prime truck and the right edge of the
highway. Only a few feet of space separated Gregory’s truck, jackknifed
on the left, from the ATG truck, overturned on the right.
Following behind the ATG truck was a van driven by Guillermo
Vasquez. 1 Vasquez saw the ATG truck fall over on the right side of the
road and steered left in response, but he could not avoid the wall of
trucks almost entirely blocking the road. The Vasquez van hit the New
Prime truck at less than ten miles per hour. A Prius followed the
Vasquez van, crashing at high speed into the ATG truck on the right. 2
At this point, neither Deol nor the Vasquez van’s passengers had been
seriously injured. The next truck, however, struck the back of the
Vasquez van at 56 miles per hour. This truck belonged to P&O
Transport. After that collision, the final two trucks—belonging to DOD
Reynolds and CDO Express Diversified—collided with the P&O truck.
Some time before the P&O truck arrived, Deol left his truck to
assist victims of the accident. Adam Moseley, a DPS officer who
1 Five of Vasquez’s family members were riding in the van with him.
His wife Alma and his son-in-law Hector Perales were among the deceased.
2 Another decedent was Tracy Jones, a passenger in the Prius.
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responded to the scene, testified that Deol’s injuries suggested he had
been killed when the Vasquez van—pushed forward by the force of the
successive collisions with the P&O, DOD, and CDO trucks—rolled over
and crushed him.
Deol’s estate and family sued Gregory and New Prime, among
others, seeking compensatory damages for (1) economic losses caused by
Deol’s death, (2) Deol’s conscious pain and suffering, and (3) the mental
anguish and loss of companionship suffered by his wife, three children,
and parents. The estates and families of the other decedents intervened
in the litigation, but the Jones parties later settled, leaving the families
of Deol, Vasquez, and Perales to go to trial. The jury’s verdict awarded
almost $39 million to the plaintiffs, and Deol’s family’s share of the final
judgment was $16,447,272.31. Deol’s family’s noneconomic damages
accounted for $15,065,000 of the verdict. 3
After the verdict, Gregory and New Prime settled with the
Vasquez and Perales parties. Gregory and New Prime appealed, raising
a host of issues. On appeal, the Deol parties were the only remaining
3 The jury verdict awarded Deol’s wife Jaswinder Chohan $7,437,500,
including (1) $350,000 for loss of past companionship, (2) $2,625,000 for loss of
future companionship, (3) $525,000 for past mental anguish, and
(4) $3,937,500 for future mental anguish. It awarded each of his two sons
$2,445,000, including (1) $160,000 for loss of past companionship,
(2) $1,200,000 for loss of future companionship, (3) $160,000 for past mental
anguish, and (4) $925,000 for future mental anguish. His daughter was
awarded $1,457,500, including (1) $160,000 for loss of past companionship,
(2) $1,200,000 for loss of future companionship, (3) $5,000 for past mental
anguish, and (4) $92,500 for future mental anguish. Finally, each of Deol’s
parents were awarded $640,000. Both received $160,000 for each category of
damages. Economic losses and Deol’s conscious pain and suffering accounted
for the rest of the verdict.
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plaintiffs. On its own motion, the court of appeals took the case en banc
before a panel opinion was issued. A 10–4 majority affirmed the
judgment on all issues. The defendants now raise three issues in this
Court. They contend that (1) the court of appeals reviewed the amount
of the noneconomic damages award under an overly deferential
standard of review, (2) the amount of the award finds no support in the
evidence, and (3) ATG should have been designated as a responsible
third party. As explained below, we largely agree with Gregory and New
Prime.
II.
A.
Noneconomic damages are the exception, not the norm, in tort
law. The common law has long hesitated to recognize mental or
emotional injuries absent an accompanying physical injury. E.g., Lynch
v. Knight (1861) 11 Eng. Rep. 854, 863 (“Mental pain or anxiety the law
cannot value, and does not pretend to redress, when the unlawful act
complained of causes that alone.”). 4 Consistent with the common law
tradition, this Court first allowed recovery of mental anguish damages
in personal injury cases only when there was an accompanying physical
injury to the plaintiff. Hill v. Kimball, 13 S.W. 59, 59 (Tex. 1890). We
4 See also Blake v. Midland Ry. Co. (1852) 118 Eng. Rep. 35, 42 (“[W]e
are of opinion that the learned Judge at the trial ought more explicitly to have
told the jury that, in assessing the damages, they could not take into their
consideration the mental sufferings of the plaintiff for the loss of her
husband . . . .”); Baker v. Bolton (1808) 170 Eng. Rep. 1033, 1033 (“In a civil
Court, the death of a human being could not be complained of as an injury; and
in this case the damages, as to the plaintiff’s wife, must stop with the period of
her existence.”).
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later expanded that rule to allow recovery when the mental anguish
produces some physical manifestation. Gulf, C. & S. F. Ry. Co. v.
Hayter, 54 S.W. 944, 945 (Tex. 1900). The chief justifications for the
common law’s skepticism of mental anguish damages were “[t]he
inherently subjective nature of mental anguish,” “the concomitant
potential for false claims,” and the resistance of non-pecuniary,
emotional injuries to rational monetization. Parkway Co. v. Woodruff,
901 S.W.2d 434, 442 (Tex. 1995).
In keeping with the common law, this Court in wrongful death
cases long adhered to the pecuniary loss rule, a “well settled” principle
that damages for wrongful death “are measured by the pecuniary injury
to the respective parties entitled,” and not by reference to a surviving
party’s pain or mental anguish. March v. Walker, 48 Tex. 372, 375
(1877). Not until comparatively recently did our precedent depart from
this rule. In 1983, our decision in Sanchez v. Schindler departed from
the common law’s traditional teaching about the difficulty of assigning
a dollar value to non-physical injuries and charted a new course for
wrongful death cases, reasoning that “present social realities”
demanded that “the antiquated and inequitable pecuniary loss rule” be
abandoned. 651 S.W.2d 249, 251 (Tex. 1983). We expressed optimism
that injuries such as these “are not too speculative to be given a
monetary value,” although we offered little advice on how that might be
done. Id. at 253.
Three years after opening the door to mental anguish damages in
wrongful death cases in Sanchez, we also abandoned—as to wrongful
death cases at least—the venerable prohibition on recovery of mental
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anguish damages without a physical manifestation. Moore v. Lillebo,
722 S.W.2d 683, 685–86 (Tex. 1986). Moore held for the first time that
family members could recover for both mental anguish and loss of
companionship without a showing of physical manifestation. Id. Since
Sanchez and Moore, this Court has not had occasion to elaborate on how
the wrongful death damages authorized by these decisions should be
reviewed on appeal.
We have, however, decided other cases involving mental anguish
damages that shed light on the inquiry. For personal injury cases in
general, we have in the years since Sanchez and Moore held that
“evidence of the nature, duration, and severity of [] mental anguish” is
required to establish the existence of mental anguish damages.
Parkway, 901 S.W.2d at 444; Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221,
231 (Tex. 2011) (“Even when an occurrence is of the type for which
mental anguish damages are recoverable, evidence of the nature,
duration, and severity of the mental anguish is required.”).
A year later, building on Parkway, we concluded in a personal
injury case that “[n]ot only must there be evidence of the existence of
compensable mental anguish, there must also be some evidence to
justify the amount awarded.” Saenz, 925 S.W.2d at 614 (emphasis
added); Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013) (“There must
be both evidence of the existence of compensable mental anguish and
evidence to justify the amount awarded.”). Rejecting the notion that
“[t]ranslating mental anguish into dollars is necessarily an arbitrary
process,” we held that a jury’s discretion in crafting these verdicts is not
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unlimited. Saenz, 925 S.W.2d at 614. In short, “[j]uries cannot simply
pick a number and put it in the blank.” Id.
In the years since Parkway and Saenz, we have applied these
limitations on recovery in a line of defamation cases involving mental
anguish damages. Bentley, 94 S.W.3d at 606; Hancock, 400 S.W.3d at
68; Bennett v. Grant, 525 S.W.3d 642, 648 (Tex. 2017); Anderson v.
Durant, 550 S.W.3d 605, 618–20 (Tex. 2018). In Bentley, we applied the
requirement announced in Saenz for the first time, overturning a $7
million mental anguish verdict in favor of Bentley even though “[t]he
record le[ft] no doubt that Bentley suffered mental anguish.” 94 S.W.3d
at 606. That record indicated that (1) Bentley could not sleep, (2) he
experienced embarrassment in public life, (3) his family life was
disrupted, (4) his children were distressed at school, (5) he felt
depressed, and (6) he felt that his honor and integrity had been
irrevocably impugned. Id. at 606–07. But “all of this [wa]s no evidence
that Bentley suffered mental anguish damages in the amount of $7
million.” Id. at 607 (emphasis added).
The court of appeals disregarded Bentley and later cases, which
require evidence justifying the amount of mental anguish damages, by
distinguishing between defamation and wrongful death. We are not
convinced that this distinction makes a difference. Bentley, a
defamation case, quotes Saenz, a personal injury case, at great length.
Bentley, 94 S.W.3d at 606 (quoting Saenz, 925 S.W.2d at 614). Our
precedent thus cannot support the notion that defamation cases are
somehow unique. Nor do we see any valid basis on which to carve out
special rules for appellate review of noneconomic damages in wrongful
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death cases, as opposed to non-death injury cases or defamation cases.
Though the magnitude of mental anguish may often be heightened in
wrongful death cases, the jury’s task is the same: “They must find an
amount that, in the standard language of the jury charge, ‘would fairly
and reasonably compensate’ for the loss.” Id. A wrongful death case is
no different in this regard.
All acknowledge the inherent difficulty in assigning a dollar value
to the anguish and loss suffered by the grieving family of an accident
victim, but this is what we ask juries to do. The nature of this
undertaking—compensating people with money for emotional injuries
that are difficult to monetize—is not fundamentally different when the
emotional injuries are caused by a death rather than by defamation as
in Bentley or by a non-fatal personal injury as in Saenz. In any factual
context, including wrongful death, the approach we stated in Saenz and
repeated in Bentley applies to the legal-sufficiency review of damages
awarded for noneconomic injury:
Not only must there be evidence of the existence of
compensable mental anguish, there must also be some
evidence to justify the amount awarded. We disagree with
the court of appeals that “translating mental anguish into
dollars is necessarily an arbitrary process for which the
jury is given no guidelines.” Fidelity & Guaranty
Insurance Underwriters v. Saenz, 865 S.W.2d 103, 114
(Tex. App.—Corpus Christi 1993). While the impossibility
of any exact evaluation of mental anguish requires that
juries be given a measure of discretion in finding damages,
that discretion is limited. Juries cannot simply pick a
number and put it in the blank. They must find an amount
that, in the standard language of the jury charge, “would
fairly and reasonably compensate” for the loss.
Compensation can only be for mental anguish that causes
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“substantial disruption in . . . daily routine” or “a high
degree of mental pain and distress.” Parkway v. Woodruff,
901 S.W.2d 434, 444 (Tex. 1995). There must be evidence
that the amount found is fair and reasonable
compensation, just as there must be evidence to support
any other jury finding. Reasonable compensation is no
easier to determine than reasonable behavior—often it
may be harder—but the law requires factfinders to
determine both. And the law requires appellate courts to
conduct a meaningful evidentiary review of those
determinations.
Bentley, 94 S.W.3d at 606 (quoting Saenz, 925 S.W.2d at 614) (cleaned
up).
B.
Holding that some evidence must justify the amount of
noneconomic damages awarded does not fully answer the question,
however. If we take seriously the notion that mental anguish and loss
of companionship damages are meant to reasonably compensate
surviving family members for their injuries—as our cases undoubtedly
do 5—then we must grapple with the difficulties that inevitably arise
when courts attempt to evaluate the size of these compensatory awards.
“Compensation is the chief purpose of damages awards in tort
cases.” J&D Towing, LLC v. Am. Alt. Ins. Corp., 478 S.W.3d 649, 655
(Tex. 2016); see also id. at 655 n.14 (quoting Fowler Harper et al.,
Harper, James and Gray on Torts § 25.1, at 574 (3d ed. 2007) (“The
5E.g., Moore, 722 S.W.2d at 688. Mental anguish is “the emotional pain,
torment, and suffering that the named plaintiff would, in reasonable
probability, experience from the death of the family member.” Id. Loss of
companionship is the loss of “positive benefits flowing from the love, comfort,
companionship, and society the named plaintiff would, in reasonable
probability, experience if the decedent lived.” Id.
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cardinal principle of damages in Anglo–American law is that of
compensation for the injury caused to the plaintiff by the defendant’s
breach of duty.”)). Compensatory damages awards are meant to
compensate victims, not to punish or deter tortfeasors. This basic
premise of our civil justice system is no less true in a wrongful death
case than in any other context. No matter what the compensatory
damages are compensating for, they are supposed to be “[r]easonable
and proper compensation . . . sufficient to place the plaintiff in the
position in which he would have been absent the defendant’s tortious
act.” Id. at 655.
Applying this simple-sounding rule to noneconomic injuries is far
from simple. The unavoidable truth is that money cannot genuinely
compensate for emotional trauma, whether or not tort law claims
otherwise. Money’s inability to truly compensate for mental anguish is
most starkly demonstrated in a wrongful death case. How can money
“place the plaintiff[s] in the position” they were in before Deol died? 6
Obviously it cannot. The economic loss in this case may be readily
ascertainable, but the noneconomic harm transcends quantification
entirely. At Deol’s death, Jaswinder Chohan lost far more than just a
source of financial support. She lost her husband. 7 Three children lost
their father. Two parents were delivered the terrible news that they had
outlived their son.
6See Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434
S.W.3d 142, 152 (Tex. 2014) (“[M]oney does not equate to peace of mind.”).
7 For one man’s estimation of his own anguish upon the death of his
wife, see C.S. Lewis, A Grief Observed (1961).
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Any attempt to monetize the grief experienced by those whose
loved ones die suddenly and prematurely will fail in its paltry attempt
to compensate with money that which is priceless. The love we feel for
those closest to us—and the pain we would feel at their passing—far
exceeds any price that could ever be paid. Even as we establish legal
standards in an attempt to promote rationality and non-arbitrariness in
the damages awarded by courts, we are well aware of the
insurmountable imperfection of any attempt to use money damages to
compensate for the emotional injuries alleged in a wrongful death case.
Imperfect justice is all that can be offered to grieving families who
cannot truly be made whole, but it should be said that the entire
enterprise of assigning dollar values to matters of the heart is
exceedingly imperfect indeed. 8 Nevertheless, existing Texas law
authorizes such recoveries, and our justice system must proceed in this
realm, as in all others, on the basis of evidence and reason.
We must insist that every aspect of our legal system—including
the way we compensate grieving families for the wrongful death of a
loved one—yields rational and non-arbitrary results based on evidence
8 Similar considerations have led jurisdictions like the State of New
York to ban recovery for noneconomic losses in wrongful death cases
altogether. See Liff v. Schildkrout, 49 N.Y.2d 622, 633–34 (N.Y. 1980) (noting
that the New York wrongful death statute limits recovery to pecuniary
injuries). Indeed, on the very day we heard oral arguments in this case, the
Governor of New York vetoed a bill that would have authorized the recovery of
noneconomic damages in wrongful death actions. Carolyn Gusoff, Gov. Kathy
Hochul Vetoes Grieving Families Act, But Families of Victims of Fatal
Tragedies Aren’t Giving Up, CBS NEW YORK (Feb. 1, 2023),
https://www.cbsnews.com/amp/newyork/news/grieving-families-act-vetoed-
governor-hochul/.
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and reason, to the extent possible. Any system that countenances the
arbitrary “picking numbers out of a hat” approach to compensatory
damages awards is not providing the rational process of law that we are
obligated to provide, or at least to strive for.
As explained above, our precedents in Parkway, Saenz, Bentley,
and later cases require legally sufficient “evidence of the nature,
duration, and severity” of mental anguish to support both the existence
and the amount of compensable loss. Parkway, 901 S.W.2d at 444;
Saenz, 925 S.W.2d at 614; Bentley, 94 S.W.3d at 606. These decisions
acknowledge the inherent indeterminacy of noneconomic awards and
the discretion that must be afforded to juries asked to assign a dollar
value to emotional injury. But they also make clear that the jury’s
discretion is by no means unlimited and that the amount awarded must
be supported by evidence. The logic of these precedents applies with
equal force to wrongful death cases.
The en banc majority did not look to these non-death cases for
guidance because, in its view, “[d]eath is different.” 615 S.W.3d at 304.
While that statement is accurate in almost every conceivable
application, it is not accurate when it comes to assessing damages for
noneconomic injuries. No matter the source of the mental anguish or
loss of companionship suffered, our precedent is clear that “there must
be . . . evidence to justify the amount awarded” in compensatory
damages, just as there must be evidence to support any other relief
afforded by our judicial system. Hancock, 400 S.W.3d at 68.
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C.
Having established that (1) our precedent requires that the
amount of damages awarded must be based on evidence and
(2) emotional injuries are in their nature resistant to monetary
quantification, we turn to the question of how a wrongful death plaintiff
could establish the required connection between an emotional injury and
an amount of damages.
1.
We begin with a few examples of how not to do so. During closing
argument, counsel for Vasquez and Perales (other decedents) attempted
to support the large request for noneconomic damages using a tactic that
some amici refer to as “unsubstantiated anchoring.” 9 We understand
unsubstantiated anchoring to be a tactic whereby attorneys suggest
damages amounts by reference to objects or values with no rational
connection to the facts of the case. Analogies employed by counsel in
this case included a $71 million Boeing F-18 fighter jet and a $186
million painting by Mark Rothko.
Of course, the cost of a fighter jet, the auction price of a coveted
painting, or any other expensive comparator are all equally flawed
analogies. After learning that a particular aircraft or painting sells for
many millions of dollars, jurors are no closer to gaining a sense of how
to compensate the family for their injuries. The self-evident purpose of
these anchors, however, is to get jurors to think about the appropriate
damages award on a magnitude similar to the numbers offered, despite
9 Brief for Am. Prop. Cas. Ins. Ass’n, Ins. Council of Tex., and Nat’l Ass’n
of Mut. Ins. Cos. as Amici Curiae in Support of Petitioners, at 26–27.
17
the lack of any rational connection between reasonable compensation
and the anchors suggested. Unsubstantiated anchors like those
employed here have nothing to do with the emotional injuries suffered
by the plaintiff and cannot rationally connect the extent of the injuries
to the amount awarded.
Decedents’ counsel offered these examples to the jury with the
stated purpose of helping them “place a monetary value on human lives.”
That statement misunderstands the task a jury faces when asked to
award damages for mental anguish or loss of companionship. Such
awards are not meant to place a value on human life, which would be an
even more nebulous and speculative task than monetizing mental
anguish and loss of companionship. Unsubstantiated anchors
introduced as a way to assist a jury in “valuing a human life” are not the
type of information a jury can rightfully rely on when crafting a verdict.
And on appellate review, such suggestions are of no assistance in
rationally explaining why the amount of noneconomic damages awarded
reasonably compensates the decedent’s family.
Another unsubstantiated anchor offered in this case vividly
exemplifies the potential for such numbers to improperly influence
verdicts. After referencing expensive paintings and military aircraft,
counsel for Vasquez and Perales urged the jury to give defendants their
“two cents worth” for every one of the 650 million miles that New Prime’s
trucks drove during the year of the accident. The exact request was
“[t]wo cents worth for each [decedent]; six cents a mile for the six
hundred and fifty [million] miles . . . they traveled in the year that they
took these people’s lives.” Counsel argued that “for four years I’ve been
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trying to give this company and their lawyers my two cents
worth[;] . . . [f]or four years I’ve been trying and they won’t listen to me.”
He then asked the jury to give New Prime their “two cents worth”
instead. The unmistakable purpose of this argument is to suggest that
New Prime can afford a large award and that it should be punished for
denying Chohan and her family justice for Deol’s death. But punitive
damages are not at issue here; only compensatory damages are, and the
“two cents a mile” argument has nothing to do with compensation.
This improper argument may have influenced the jury.
Accounting for three decedents, the “two cents a mile” calculation yields
$39 million in damages. The combined final jury verdict was $38.8
million, so it is not difficult to conclude that the improper argument
influenced the result. This is especially the case when we are given no
other explanation for the size of the award. The only discernible basis
for the amount awarded in this case that appears from the evidence or
the argument of counsel is the “two cents a mile” suggestion, which
matches the amount awarded within one-half of one percent.
Chohan urges that the Court should not consider these comments
because they were made by counsel for Vasquez and Perales, not her
own. We do not find that distinction convincing. The parties tried their
wrongful death claims simultaneously to the same jury, which heard
closing argument from both attorneys before deliberation. As a result,
the improper argument might very well have affected the jury’s
deliberations as to all three decedents. If the jury’s total award was
influenced by the unsubstantiated “two cents a mile” suggestion, then
improper considerations influenced the amount awarded to Deol’s
19
family just as much as they influenced the amount awarded to the
Vasquez and Perales plaintiffs.
The Texas Rules of Civil Procedure speak clearly to this issue.
“Counsel shall be required to confine the argument strictly to the
evidence and to the arguments of opposing counsel.” TEX. R. CIV. P.
269(e). It should go without saying that the cost of a painting, a military
aircraft, or a percentage of a company’s revenue are not “evidence” to
which “counsel shall be required to confine the argument.” Courts have
an obligation to prevent improper jury argument and “will not be
required to wait for objections to be made when the rules as to
arguments are violated.” TEX. R. CIV. P. 269(g). The trial court should
have done so in response to the unsubstantiated anchors suggested by
counsel.
Chohan’s counsel asked the jury to use Deol’s economic damages
as a reference for both mental anguish and loss of companionship.
Petitioners and some amici embrace the use of economic damages as a
benchmark for noneconomic damages, and the courts of appeals take a
mixed approach to the issue. 10 The usefulness of such ratios will vary
10 Compare JNM Express, LLC v. Lozano, 627 S.W.3d 682, 701–02 (Tex.
App.—Corpus Christi–Edinburg 2021, pet. pending) (entertaining an
argument that “the ratio of non-economic damages to economic damages” was
“approximately 17:1,” but ultimately tossing it for inadequate briefing), FTS
Int’l Servs., LLC v. Patterson, No. 12-19-00040-CV, 2020 WL 5047913, at *1
(Tex. App.—Tyler Aug. 26, 2020), pet. granted, cause remanded, No. 20-0795,
2023 WL 2358215 (Tex. Jan. 27, 2023), Lane v. Martinez, 494 S.W.3d 339, 351
(Tex. App.—Eastland 2015, no pet.) (“This large ratio of non-pecuniary
damages to pecuniary damages . . . lead[s] us to the conclusion that the jury’s
awards of non-pecuniary damages [are] not supported by factually sufficient
evidence.”), and Hous. Livestock Show and Rodeo, Inc. v. Hamrick, 125 S.W.3d
20depending on the nature of the case. In wrongful death cases, however,
we reject any requirement that the ratio between economic and
noneconomic damages must be considered. The emotional trauma and
loss experienced by the decedent’s loved ones is different in kind from
any lost income the family suffers because of the death. To suggest that
greater pecuniary loss necessarily justifies greater noneconomic
damages is to suggest that the families of a well-paid decedent suffer
more grief and pain than the families of those with less income. Our
consciences should indeed be shocked by such a suggestion. The severity
of mental anguish and loss of companionship felt by surviving family
members does not correlate with economic status. If—as the law
demands—noneconomic damages are calculated to compensate a
decedent’s family members for their suffering, we cannot endorse a rule
under which a wealthier family can recover more mental anguish
555, 581 n.24 (Tex. App.—Austin 2003, no pet.), with Alonzo v. John, 647
S.W.3d 764, 778–79 (Tex. App.—Houston [14th Dist.] 2022, pet. filed)
(expressing skepticism about using the ratio of economic and noneconomic
damages and upholding an award as supported by sufficient evidence despite
a 24:1 disparity between the two), Emerson Elec. Co. v. Johnson, 601 S.W.3d
813, 844 n.18 (Tex. App.—Fort Worth 2018), aff’d on other grounds by 627
S.W.3d 197 (Tex. 2021) (concluding that the court need not consider the ratio
of economic and noneconomic damages awards, but nevertheless concluding
that the ratio was not excessive), and Simmons v. Bisland, No. 03-08-00141-
CV, 2009 WL 961522, at *7 (Tex. App.—Austin April 9, 2009, pet. denied) (“The
applicable standard of review requires us to uphold non-economic damage
awards that are supported by the evidence, regardless of any ratio of non-
economic damages to economic damages.”).
21
damages than another family could simply because the wealthier
decedent stood to earn more during his life. 11
This is not to say that economic damages can never be considered
when assessing noneconomic damages. There are certainly
circumstances in which some types of economic damages might correlate
with noneconomic damages. For example, the family of a decedent who
suffers for an extended time in the hospital before passing away might
suffer more mental anguish due to the strain of dealing with medical
bills and insurance hassles while coping with the death of a loved one.
In those circumstances, economic damages would also be higher because
of the medical expenses associated with a long hospital stay. But the
possibility that economic and noneconomic damages may correlate or
inform one another in certain situations does not mean that they are
necessarily connected in all cases or that the ratio between the two is
always a useful tool. Like other unsubstantiated anchors, unexamined
use of the ratio between economic and noneconomic damages—without
case-specific reasons why such analysis is suitable—cannot provide the
required rational connection between the injuries suffered and the
amount awarded.
2.
If unsubstantiated anchors and unexamined ratios are not useful
tools, then how can a party discharge its obligation to support an amount
11Additionally, we agree with the dissent below that ratios between
economic and noneconomic damages are particularly ill-suited for a wrongful
death claim “because it is brought by the surviving family members, not the
decedent whose primary economic loss is captured in a separate claim.” 615
S.W.3d at 319 (Schenck, J., concurring in part and dissenting in part).
22
of noneconomic damages with evidence? To begin with, just as evidence
of the existence of mental anguish damages generally must establish the
“nature, duration, and severity” of the anguish suffered, Guerra, 348
S.W.3d at 231, the same kind of evidence—of “nature, duration, and
severity”—will naturally also be relevant to the amount awarded.
In some cases, there may be direct evidence supporting
quantification of an amount of damages, such as evidence of the likely
financial consequences of severe emotional disruption in the plaintiff’s
life. Or there may be evidence that some amount of money would enable
the plaintiff to better deal with grief or restore his emotional health.
While money itself cannot alleviate grief or truly compensate for
emotional trauma, it may be that money can provide access to all kinds
of things that may help the person who has endured such an experience.
We do not offer these examples to suggest that in all cases there
must be direct evidence of a quantifiable amount of damages. In other
words, the requirement that some evidence support the amount of
damages for emotional injury is not a requirement of precise
quantification or a requirement that a particular type of evidence must
always be proffered. It is instead merely a requirement that the amount
of damages must have a rational basis grounded in the evidence. This
requirement flows ineluctably from our prior holding that “[t]here must
be evidence that the amount found is fair and reasonable compensation,
just as there must be evidence to support any other jury finding.”
Bentley, 94 S.W.3d at 606 (quoting Saenz, 925 S.W.2d at 614). As with
any evidentiary-sufficiency requirement, parties defending an award of
damages cannot just assert that the amount justifies itself. Instead,
23
when the record lacks evidence directly supporting the amount found,
parties and reviewing courts must explore whether there is any other
rational explanation of how the evidence supports the finding. See Crim
Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 592
n.1 (Tex. 1992) (framing the sufficiency inquiry as including “whether
the evidence offered has a tendency to prove the existence of a material
fact”). As we held in Bentley and Saenz, the amount of a noneconomic
damages award is subject to these conventional requirements of
“meaningful evidentiary review,” just like “any other jury finding.”
Bentley, 94 S.W.3d at 606 (quoting Saenz, 925 S.W.2d at 614).
The required rational basis for the award may come from evidence
suggesting a quantifiable amount of damages, such as testimony about
the potential financial consequences of severe emotional trauma. Or the
rational basis may be revealed by lawyer argument rationally
connecting the amount sought—or on appeal, the amount awarded—to
the evidence. Accord Sheffield Dev. Co. v. City of Glenn Heights, 140
S.W.3d 660, 675 (Tex. 2004) (observing in the context of constitutional
law that a “rational basis” for government action should be found “if one
can be conceived,” whether or not government officials had that basis in
mind when they acted). We will not speculate here about all the
permissible ways in which parties may demonstrate that a rational
connection between the evidence and the amount awarded exists or is
lacking. But merely asserting, without rational explanation, that any
amount picked by the jury is reasonable compensation simply because a
properly instructed jury picked the number is to argue that a jury may
“simply pick a number and put it in the blank.” Saenz, 925 S.W.2d at
24
614. That is exactly what we have said must not be done. Id. Such an
arbitrary approach to damages is no more defensible in a wrongful death
case than in any other case.
If awarding and reviewing noneconomic damages is to be a
rational and non-arbitrary exercise, as we surely must insist that it be,
then courts and jurors alike should be told why a given amount of
damages, or a range of amounts, would be reasonable and just
compensation. Mathematical precision is by no means required, but it
is not enough for the plaintiff or his attorney merely to assert, without
rational explanation, that a given amount or a given range is reasonable
and just. We do not doubt that those who argue for such damages to
juries and who seek to uphold them on appeal genuinely believe the
amounts they seek and obtain are reasonable and just compensation for
the injuries suffered. But one party’s genuine belief is no rational basis
for a judgment. There must be a reason given for why the belief is valid,
a reason given for why the amount sought or obtained is reasonable and
just. And it must be a rational reason grounded in the evidence. 12
12 Although neither party advocates for a comparative method under
which the size of damages awards can be justified based on the damages
previously awarded in factually similar cases, several amici suggest such an
approach. We do not foreclose the possibility that comparison to other cases
may play some role in a plaintiff’s effort to establish that a given amount of
noneconomic damages is reasonable and just compensation rationally
grounded in the evidence. We have in the past invoked similar reasoning. See
Anderson, 550 S.W.3d at 620 (“The jury’s $400,000 award appears to be
excessive compared to awards in cases involving similar or more egregious
behavior . . . .”). We will not endeavor here to define the permissible uses of
verdict comparisons.
25
If the amount sought is genuinely thought to be reasonable and
just compensation, then there should be an articulable reason why that
is so. An attorney asking a jury to award that amount in damages
should be expected to articulate the reason why the amount sought is
reasonable and just, so the jury can rationally decide whether it agrees.
And on appeal, if the reasons offered in justification of the amount
awarded are rational and do not partake of prohibited motives, courts
should defer to the jury’s verdict. Again, we do not place any limits, in
this opinion, on the reasons by which a plaintiff might justify the
amount he seeks or the amount he has been awarded. We hold only that
a rational reason, grounded in the evidence, must be given by the
plaintiff, whose burden it is to prove the damages. Only then can juries
and judges rationally assess whether the amount is reasonable and just
compensation for the injuries suffered. 13
In sum, to survive a legal-sufficiency challenge to an award of
noneconomic damages, a wrongful death plaintiff should bear the
burden of demonstrating both (1) the existence of compensable mental
13 Some amici support a standard that asks what “a reasonable person
could possibly estimate as fair compensation.” Waste Mgmt. of Tex., Inc., 434
S.W.3d at 153 (quoting RESTATEMENT (SECOND) OF TORTS § 905 cmt. i). The
Fifth Circuit has characterized Texas law as employing a similar standard.
Longoria v. Hunter Express, Ltd., 932 F.3d 360, 365 (5th Cir. 2019). Because
a juror acting reasonably could only award a specific amount of money if there
was a rational connection between that amount and the evidence adduced at
trial, we understand both our approach and the Restatement’s as asking
essentially the same question. The question is “what verdict is within the
bounds of reasonable inference from the evidence.” Miller v. Md. Cas. Co., 40
F.2d 463, 465 (2d Cir. 1930) (Learned Hand, J.). It is the plaintiff’s
responsibility, as the party with the burden of proof, to articulate the
“reasonable inference” connecting the size of the verdict and the evidence.
26
anguish or loss of companionship and (2) a rational connection,
grounded in the evidence, between the injuries suffered and the amount
awarded.
D.
With these standards in mind, we examine the proceedings below.
To determine whether the award was excessive, the en banc court of
appeals employed essentially a two-step framework.
First, it gave a detailed account of Chohan’s trial testimony
indicating that she, her three children, and Deol’s parents all had a close
relationship with Deol during his life and were deeply grieved by his
passing. 615 S.W.3d at 309–14. The unenviable task of explaining how
she and each of her family members had been affected by Deol’s death
fell to Chohan alone. Her testimony is thorough, saddening, and as the
en banc majority notes, accounts for nearly fifty pages of a lengthy
reporter’s record. Id. at 310. As to her own relationship with Deol, she
testified that they shared a “very, very close” relationship, and he was
her “best friend.” The night of the accident was particularly traumatic
for her, and she described the moment that she heard the news of his
passing as “the saddest moment of her life.” She began taking
antidepressants, and the loss of Deol’s support meant she had to relocate
the family, which created additional disruption and discomfort in all of
their lives, including hers. She finds herself particularly saddened by
Deol’s passing at milestones in their children’s lives.
As to the children, both sons quite understandably reacted
emotionally to their father’s death. Both were very attached to him.
Since the time of the accident, the older son, who used to be happy and
27
outgoing, is now quiet and keeps to himself. The younger son is less
active than before and has gained weight. As for the daughter, who was
only seven months old at Deol’s death, she sees pictures of her father
around the house and asks when he is coming home.
Finally, Chohan testified that Deol was very close to his parents,
who lived with them. They enjoyed spending time cooking and
gardening together. Since his death, his mother cries several times a
day. Though Deol’s father is more reserved in his grief, Chohan testified
that the family’s entire home life has changed for the worse and that
everyone is greatly saddened by Deol’s passing.
After surveying this evidence, the court of appeals turned to the
second step of its review. Noting that the jury was properly instructed
on the definitions of mental anguish and loss of companionship and the
types of evidence relevant to each, id. at 311–12, the court concluded
that the verdict displayed no indication that the award was motivated
by “passion, prejudice, sympathy, or other circumstances not in
evidence,” id. at 314. Nor was the award “flagrantly outrageous,
extravagant, [or] so excessive that it shock[ed] the judicial conscience.”
Id. With those observations, it began and ended its analysis, affirming
the verdict as sufficiently supported by the evidence. Id.
That approach is not so much wrong as it is incomplete. While
we agree with both the majority and Justice Schenck’s dissent that
Chohan’s testimony is sufficient evidence that Deol’s family suffered
compensable mental anguish and a loss of companionship, 14 the
14 Gregory and New Prime concede as much. Pet. Br. on the Merits, at
38–39.
28
testimony is no evidence, standing on its own, of the amount of damages
incurred on account of that suffering. Crucially, plaintiffs’ counsel at no
point in these proceedings has attempted to proffer a rational argument
justifying either the amount sought or the amount awarded. At trial,
the only arguments provided to justify an amount of damages were
impermissible appeals to irrelevant considerations, such as fighter jets
and New Prime’s total miles driven. See supra at 17–20. On appeal, the
plaintiffs’ suggested approach is that as long as the jury is properly
instructed and no improper motive is evident, then the jury may
essentially “pick a number and put it in the blank.” Saenz, 925 S.W.2d
at 614. But that is precisely the kind of arbitrariness our precedent
attempts to avoid by insisting on “evidence to justify the amount
awarded.” Id.
Chohan’s testimony gave the jury much to work with when
deliberating the first question related to damages: their existence. As
we said in Moore, proof of a “family relationship constitutes some
evidence” of mental anguish. 722 S.W.2d at 686. Chohan’s testimony,
in addition to proving the family relationships, provides an explanation
for how each member of the family grieved Deol’s loss. It gives examples
of appreciable ways in which each of their lives was made worse by his
passing. But it does not give any indication of what amount of damages
would be enough “to indemnify the injured [plaintiffs] for the loss
suffered.” 15 After hearing her testimony, no reasonable jury, however
attentive, properly instructed, and well-intentioned, would be any closer
to rationally assigning a monetary value to the losses she described.
15 Compensatory Damages, BLACK’S LAW DICTIONARY (11th ed. 2019).
29
While Chohan’s testimony satisfies Parkway’s requirement that a
plaintiff introduce legally sufficient “nature, duration, and severity”
evidence, 901 S.W.2d at 444, it does not satisfy Saenz’s requirement that
“there must also be some evidence to justify the amount awarded.” 925
S.W.2d at 614.
Nor does it suffice to simply conclude, as the en banc majority did,
that the result neither shocks the conscience nor arises from bias or
prejudice. We said almost 140 years ago that:
What shocks the conscience or manifests passion or
prejudice in the jury are tests too elastic for practical use
in the great majority of cases. They readily dispose of rare
extremes. But the cases which need a rule are those which
press the bounds of reason without transgressing; they
disturb, but do not shock, the conscience; voice a severe,
but not necessarily an enraged or prejudiced, jury.
Dorsey, 18 S.W. at 445. The “shocks the conscience” standard is
inherently subjective because the consciences of appellate judges will
surely differ in their assessment of damages awards. As we said in
Bentley, a court of appeals’ factual-sufficiency review of the amount of
damages for excessiveness—which is where the “shocks the conscience”
standard has been employed—does not “displace[] [the court of appeals’]
obligation, and ours, to determine whether there is any evidence at all
of the amount of damages determined by the jury.” 94 S.W.3d at 606.
Applying only the vague and subjective “shocks the conscience” standard
is therefore not enough. 16 Whether or not it is reversible error to “shock
16Whatever the limited value of the “shocks the conscience” inquiry, if
a reviewing court concludes that a jury’s verdict was motivated by improper
passion, prejudice, or a desire to punish a defendant, this remains a separate
30
the conscience” of an appellate judge, it is error to allow a verdict to
stand when no rational basis for the verdict’s amount is proffered, as is
the case here.
The court of appeals detailed Chohan’s testimony and then stated
that its conscience was not shocked. But it made no attempt to reason
from the testimony to an explanation for why $15 million reasonably
compensates Deol’s family for the many injuries Chohan described. Nor
did the plaintiffs’ counsel assist in that regard. Indeed, the only
argument offered at any point in this case that could explain the size of
this award is the impermissible “two cents a mile” exhortation by
counsel for Vasquez and Perales. No other explanation for the award’s
size has been proffered. Because no rational connection has been
proffered between the amount awarded and the evidence of the “nature,
duration, and severity” of the noneconomic damages suffered by Deol’s
family—and no such connection is apparent from the record—we must
conclude that no evidence supports the amount awarded. The award of
noneconomic damages must therefore be reversed.
When sufficient evidence exists to support the existence of
damages but not the amount awarded, we reverse and remand. See ERI
basis for reversal, even if there is otherwise evidence in the record that meets
the legal standards articulated here. Texas courts often say that they “will set
aside the verdict only where the record clearly indicates that the award was
based on passion, prejudice, or improper motive, or is so excessive so as to shock
the conscience.” E.g., Sanchez v. Balderrama, 546 S.W.3d 230, 237 (Tex.
App.—El Paso 2017, no pet.). Though our decisions in Parkway, Saenz, and
Bentley augment that standard of review, they do not eliminate it. “Passion,
prejudice, or improper motive” remains an independent basis for reversal.
31
Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 882 (Tex. 2010). 17
Typically, in such a case, we would remand to the court of appeals to
consider a remittitur. Id. But because in this case we also remand for
a new trial due to the responsible-third-party issue, we will remand the
entire case to the trial court for a new trial.
III.
Finally, we consider the responsible-third-party issue. Before
trial, Gregory and New Prime sought to designate several responsible
third parties, including ATG, Danfreight, CDO, and each of their
drivers. At the request of Deol’s family, the trial court struck the
designations before trial and later reaffirmed its ruling after
presentation of the evidence. 18
In this Court, the defendants complain only about the exclusion
of ATG as a responsible third party. Their theory as to ATG’s
responsibility is as follows. Though the New Prime truck was blocking
all of the left lane and most of the right lane of traffic, the two trucks
17 See also Swinnea, 318 S.W.3d at 882 (“We also hold that while legally
sufficient evidence does not exist to prove the lost profits awarded by the trial
court, legally sufficient evidence does exist to prove some reasonably certain
amount of lost profits. We therefore also reverse the portion of the court of
appeals’ judgment that ERI take nothing on its claims for lost profit damages
and punitive damages and remand the case to the court of appeals to consider
a remittitur, as well as any other remaining issues, before remanding the case
to the trial court.”).
18 In their briefing before this Court on the responsible-third-party
issue, both petitioners and respondents engage with the full extent of the
evidence presented at trial. Thus, they ask this Court to review the trial court’s
second, post-trial ruling on the issue, rather than the initial pre-trial ruling.
We decide the issue as presented, by applying the statutorily dictated
responsible-third-party standard to the trial evidence.
32
that encountered the crash site before ATG were able to successfully
navigate around the hazard to the right. It was not until the ATG truck
arrived on the scene, tipped over, and blocked all remaining clearance
on the right that the accident became unavoidable for the approaching
vehicles. When the Vasquez van arrived soon after, it had no way to
avoid the obstacles in front of it. The defendants contend that ATG’s
driver bore much of the responsibility for the fact that the accident was
unavoidable for approaching vehicles, including the Vasquez van and
the ensuing vehicles that caused the Vasquez van to crush Deol. They
reason that if Gregory was responsible for Deol’s death because her
negligence created an obstructed road ultimately causing a later
collision that killed Deol, then ATG’s driver must likewise be at least
partly responsible because the later, deadly collision was not
unavoidable until the ATG driver’s negligence resulted in a total
obstruction of the road. 19
For her part, Chohan contends that ATG was properly excluded
as a responsible third party because the defendants produced no
19 Chohan contends that Gregory and New Prime waived this objection
because, at the charge conference, they objected to ATG’s exclusion from the
jury questions pertaining to the Vasquez and Perales parties but made no
objection about the questions directed at Deol. We disagree. Gregory and New
Prime designated ATG as a responsible third party, opposed the plaintiffs’
motion to strike the designation on the record, moved for reconsideration
multiple times after the first attempt was unsuccessful, and obtained a ruling
on the record. There are six pages of the reporter’s record dedicated to
back-and-forth argument on this point. The Texas Rules of Appellate
Procedure require that the record reflect a timely objection stating the grounds
for the ruling sought and a ruling on the request. TEX. R. APP. P. 33.1(a).
Gregory and New Prime’s preservation efforts satisfy those procedural
requirements.
33
evidence as to (1) duty, 20 (2) negligence, or (3) causation. As to
negligence, Chohan contends that, at most, the defendants point to
evidence that the ATG driver “steered aggressively to the right” and
spun out, which, given the circumstances created by Gregory’s prior
jackknife of the New Prime truck, was eminently understandable.
Chohan thus contends that the defendants did not introduce sufficient
evidence of negligence on the part of ATG. As to causation, Chohan
argues that ATG played no part in making the crashes that led to Deol’s
death more likely because the New Prime truck was the but-for cause of
the Vasquez van’s crash. Had the New Prime truck not been jackknifed
in the left lane, Chohan contends, the Vasquez van could have safely
avoided the overturned ATG truck by travelling in the left lane.
The court of appeals affirmed the trial court’s decision to exclude
ATG, reasoning that the Vasquez van’s involvement in the crash was
solely attributable to Gregory’s negligence. 615 S.W.3d at 299.
“A defendant may seek to designate a person as a responsible
third party.” TEX. CIV. PRAC. & REM. CODE § 33.004(a). “After adequate
time for discovery, a party may move to strike . . . on the ground that
there is no evidence that the designated person is responsible for any
portion of the claimant’s alleged injury or damage.” Id. § 33.004(l).
Then, the burden shifts to the designating party to “produce[] sufficient
20 We do not consider this objection in depth because the record contains
a police report demonstrating that the driver of the truck was also the owner
of ATG Transportation. That is some evidence implicating the entity.
Chohan’s negligence and causation objections are more substantial, and we
give them lengthier consideration.
34
evidence to raise a genuine issue of fact regarding the designated
person’s responsibility for the claimant’s injury or damage.” Id.
“Consistent with the statute’s language, [the] courts of appeals
have described the standard of review as mirroring a no-evidence
summary judgment” under Texas Rule of Civil Procedure 166a(i). In re
Eagleridge Operating, LLC, 642 S.W.3d 518, 525–26 (Tex. 2022)
(collecting cases). 21 We agree. The similarity between the statutory
responsible-third-party standard and the no-evidence summary
judgment standard is obvious. See City of Keller v. Wilson, 168 S.W.3d
802, 825 (Tex. 2005) (“The standards for taking any case from the jury
should be the same, no matter what motion is used.”). Regardless of the
procedural context, to ask “[w]hether the proof establishes as a matter
of law that there is no genuine issue of fact” is to ask a question of law,
which means that review of the denial of a responsible-third-party
designation is de novo. Ham v. Equity Residential Prop. Mgmt. Servs.
Corp., 315 S.W.3d 627, 631 (Tex. App.—Dallas 2010, pet. denied).
21 Compare TEX. CIV. PRAC. & REM. CODE § 33.004(l) (“After adequate
time for discovery, a party may move to strike the designation of a responsible
third party on the ground that there is no evidence that the designated person
is responsible for any portion of the claimant’s alleged injury or damage. The
court shall grant the motion to strike unless a defendant produces sufficient
evidence to raise a genuine issue of fact regarding the designated person’s
responsibility for the claimant’s injury or damage.”) (emphasis added), with
TEX. R. CIV. P. 166a(i) (“After adequate time for discovery, a party without
presenting summary judgment evidence may move for summary judgment on
the ground that there is no evidence of one or more essential elements of a claim
or defense on which an adverse party would have the burden of proof at trial.
The motion must state the elements as to which there is no evidence. The court
must grant the motion unless the respondent produces summary judgment
evidence raising a genuine issue of material fact.”) (emphasis added).
35
We cannot agree with the courts below that “there is no evidence
that [ATG] is responsible for any portion of [Deol’s family’s] injury.”
TEX. CIV. PRAC. & REM. CODE § 33.004(l). Instead, the evidence of the
ATG driver’s role in bringing about the dangerous conditions that
caused the deadly collision would have permitted a reasonable jury to
assign partial responsibility to ATG for Deol’s death.
To begin with, there was evidence that the ATG driver’s
negligence—and not solely the negligence of Gregory—resulted in a total
obstruction of the road. An expert witness for the plaintiffs testified that
the ATG driver “steered aggressively to the right” with “well beyond the
normal steering input that you would use,” which “led to the [ATG]
tractor trailer spinning out and then ultimately rolling over onto its left
side.” That same witness agreed that it would be “fair to say that any
motor vehicle reacting to [the condition of the roadway] that lost
traction, just like Ms. Gregory had done, was also failing to properly
control their speed.” A surviving passenger from the Vasquez van
testified that, right before the ATG truck crashed, it “went straight up
in the air like it was [a] catapult. And you could actually see the bottom
of the trailer and the axles underneath as it went up.” Other passengers
from the van provided a similar version of events. Additionally, the ATG
truck was the only truck to overturn during the entire course of events.
Two other trucks had previously encountered the jackknifed New Prime
truck, and unlike the ATG truck, both were able to steer clear of it on
the right.
From this testimony, a reasonable jury could have concluded that
the ATG driver negligently operated his vehicle, either by driving it too
36
fast in inclement conditions such that he could not avoid the crash to the
right, as other trucks did, or by overcorrecting his vehicle in an attempt
to steer to the right.
Chohan’s argument in both the trial court and the court of appeals
focused less on the ATG driver’s negligence and more on causation. The
court of appeals affirmed solely on that basis, reasoning that Gregory’s
truck, not the ATG truck, was solely responsible for causing the Vasquez
van to crash because:
The evidence showed that, but for Gregory’s vehicle
blocking the road with no hazard warning signal, Vasquez
would have had ample space and time to stop his vehicle
and get off the road, notwithstanding the location of the
ATG Transportation truck. Because it was due to
Gregory’s actions that the Vasquez van was placed in the
position it was before being pushed over Deol, the evidence
is insufficient to establish that any act or omission by ATG
Transportation was a substantial factor in causing Deol’s
death.
615 S.W.3d at 299.
There are two problems with this reasoning. First, while it is true
that Gregory’s truck blocked the Vasquez van from travelling safely
along the highway in the left lane (and in most of the right lane), it is
just as true that the ATG truck blocked the Vasquez van from avoiding
the accident on the right—as two earlier large trucks had done. Before
the ATG truck arrived on the scene, two other trucks had safely passed
the New Prime truck on the right, avoiding any serious accident. But
after the ATG truck fell and blocked the right side of the road, any
possibility that later drivers who approached the accident could safely
navigate around the accident was eliminated. When the Vasquez van
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arrived shortly thereafter, its driver had no choice but to crash into
either the New Prime truck on the left or the ATG truck on the right.
Indeed, it was only because the ATG truck flipped over in front of the
Vasquez van that its driver was compelled to move into the left lane to
begin with. We cannot know whether the Vasquez van and the later
vehicles would have crashed into the New Prime truck had the fallen
ATG truck not blocked the rest of the road, but there can be little doubt
on this record that the total obstruction of the road increased the
likelihood of later collisions, including the one that killed Deol.
Second, even if it were true that the New Prime truck was the sole
cause of the Vasquez van’s crash, the Vasquez van’s crash did not kill
Deol. The evidence indicated that later collisions by subsequent vehicles
pushed the van onto Deol. Thus, it is not enough to say, as the court of
appeals did, that “it was due to Gregory’s actions that the Vasquez van
was placed in the position it was before being pushed over Deol.” Id. at
299. It was not the van’s presence that killed Deol; it was instead the
van’s being “pushed over Deol” by later collisions. Regardless of what
caused the Vasquez van’s presence at the scene, a reasonable juror could
have concluded that the later, deadly collisions were made more likely
by the total obstruction of the road and that the total obstruction was
caused, in part, by the ATG driver’s negligence.
The court of appeals was correct to conclude that “but for
Gregory’s vehicle blocking the road,” “Vasquez would have had ample
space and time to . . . get off the road.” Id. But the mere fact that one
person’s behavior is a but-for cause of an injury does not mean that
another’s behavior is not also a substantial factor in causing the same
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injury. Gregory’s negligent operation of her truck was the first cause in
a series of events that led to a tragedy. Although the accident would not
have occurred but for Gregory’s actions, a reasonable jury could have
concluded that the ATG driver’s actions turned an already dangerous
situation into a deadlier one by closing off the ability of drivers
approaching the scene to avoid a crash.
For these reasons, there was “sufficient evidence to raise a
genuine issue of fact regarding [ATG’s] responsibility” for Deol’s death.
TEX. CIV. PRAC. & REM. CODE § 33.004(l). Prohibiting the jury from
considering ATG’s partial responsibility for Deol’s death was harmful
error because litigants have a “significant and substantive right to allow
the fact finder to determine the proportionate responsibility of all
responsible parties.” In re Coppola, 535 S.W.3d 506, 509 (Tex. 2017). A
new trial is therefore required. See id. (“Allowing a case to proceed to
trial despite erroneous denial of a responsible-third-party designation
would skew the proceedings and potentially affect the outcome of the
litigation”) (cleaned up).
IV.
The judgment of the court of appeals is reversed, and the case is
remanded to the trial court for a new trial on all remaining issues
between the remaining parties.
James D. Blacklock
Justice
OPINION DELIVERED: June 16, 2023
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