A Texas Court of Appeals recently upheld a $14 million verdict against a cellphone tower construction company and its employee, reasoning that the evidence was legally and factually sufficient to support the jury’s findings and the awarded damages was within the jury’s discretion.

Q.A. Services, LLC (QA) builds cell phone towers. Kenneth Porter is a co-owner of QA and owns several trucks that were driven to jobsites by QA employees. Roger Landry, a former employee of QA, would travel to the jobsites where he helped build the cell phone towers. In December 2018, he drove to a jobsite near Canadian, Texas. While at the site, Landry became ill and contacted Porter to request if he could return home. Porter agreed to send another employee to the jobsite and allowed Landry to return home once he returned the company truck to the company yard.

On the drive back to the company yard, Landry ran through a stop sign and collided with a pickup truck occupying Charlotte and Philip Currie. After the accident, Landry’s blood alcohol content was found to be 0.114 and he had marijuana detected in his system. Landry admitted to smoking marijuana the night before and that he had consumed alcohol on the drive home. Landry was convicted of intoxication assault and sentenced to seven years confinement.

The Curries had extensive injuries from the collision. Charlotte suffered an aortic rupture that was life threatening. She remained in a medically induced coma for approximately one month after the accident. Philip suffered a severe fracture of his arm that caused a blood clot to form in the major artery supplying blood to the arm. Further, because of his trauma and injuries, Philip had a stroke that resulted in a loss of his peripheral vision.

The Curries filed suit against Landry, Porter and QA, alleging negligence and gross negligence against Landry, negligent entrustment against Porter, and respondeat superior and negligent supervision, training, and retention against QA

The trial court entered a judgment on the jury verdict which apportioned responsibility as 30% for Landry, 20% for Porter, and 50% for QA. The jury awarded Charlotte $34,888,255 in damages, Philip $5,746,547 in damages, and $806,400 in punitive damages to be shared equally by Charlotte and Philip. After entering judgment, the trial court signed a suggestion of remittitur reducing Charlotte’s damage award to $9,299,555 and Philip’s damage award to $5,242,285. Charlotte and Philip accepted the remittitur. Porter and QA appealed.

First, Porter and Q.A. argued that the evidence was legally and factually insufficient to support the jury’s negligent entrustment finding against Porter. However, the record reflected that Porter had personal knowledge of Landry’s reckless behavior. Specifically, Porter had previously bailed Landry out of jail on at least two occasions prior to the accident; once for public intoxication six months prior to the accident and then for driving while intoxicated three months prior to the accident. The Court of Appeals held this was more than a scintilla of evidence to support the finding on negligent entrustment.

Second, Porter and QA argued that the trial court submitted an improper negligence theory to the jury as to QA because it only included a general negligence theory rather than negligent supervision, training, and retention. The Court of Appeals sustained this point of error because negligent hiring, supervision, or retention require additional proof requirements than general negligence. As a result, the Curries could not recover on their claims of negligent hiring, supervision, or retention.

However, the Court of Appeals held that the Curries could recover against QA on their claim for respondeat superior. Porter and QA argued that the evidence was legally and factually insufficient to support the jury’s finding that Landry was acting within the scope of his employment with QA. However, the evidence demonstrated that the company trucks left the company yard to go to the jobsites and had to be returned to the company yard. At the time of the accident, Landry was returning the truck to the company yard so that it would not be left at the jobsite. The Court of Appeals held that there was more than a scintilla of evidence to support the finding that Landry was acting in the course and scope of his employment with QA.

Lastly, Porter and QA argued that the evidence was legally and factually insufficient to support the damages as remitted. However, given the severity of the injuries, the Court of Appeals held that the award to Charlotte and Philip was within the range of the jury’s broad discretion in awarding damages.

Ultimately, the Court of Appeals affirmed the trail court’s judgment on the Curries’ claims against Porter. The judgment was modified to delete QA’s proportionate responsibility of 50% because the trial court erroneously submitted a general negligence theory against QA without the additional proof requirements of negligent hiring, supervision, or retention. However, because there was enough evidence to support the jury’s finding on respondeat superior, QA was held to be vicariously liable for Landry’s negligence. Thus QA was liable for 30% of the damages awarded.

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