author: D. MICHAEL SWINEY, J., HERSCHEL P. FRANKS, P.J.,

text:
    Susan BEGLEY v. STATE of Tennessee and Tennessee Department of Transportation.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    June 9, 2004 Session.
    Oct. 7, 2004.
    Permission to Appeal Denied by Supreme Court March 21, 2005.

      Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Michael B. Leftwich, Assistant Attorney General, for the Appellant, State of Tennessee.
    Gregory K. Haden, Kingsport, Tennessee, for the Appellee, Susan Begley.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court,

in which SHARON G. LEE, J„ joined. HERSCHEL P. FRANKS, P.J., filed a separate dissenting opinion.

In May of 2000, a car being driven eastbound on Interstate 40 (“1-40”) in Knox County by Jeremy Roark left the travel lane and crossed the rumble strips onto the inside shoulder of the road where it collided with a Tennessee Department of Transportation (“TDOT”) truck parked during routine litter pick-up. Mr. Roark was killed in the accident and the TDOT employee operating the truck that day, Kenneth Siler, was injured. Susan Beg-ley, Mr. Roark’s mother (“Plaintiff’), brought suit against the State of Tennessee. The case was transferred to the Claims Commission (“the Commission”) and was tried. The Commission held, inter alia, that a reasonable person standard applied and that it was not reasonable for the TDOT truck to be parked on the shoulder. The Commission assessed 45% of the fault for the accident to Mr. Roark and 55% to the State and awarded Plaintiff a judgment for $300,000. The State appeals claiming the Commission lacked jurisdiction, there was insufficient evidence that each element of the negligence cause of action had been met, and there was insufficient evidence to support a finding that Mr. Roark was less than 50% at fault. We affirm.

Background

Plaintiff sued the State of Tennessee after her twenty-year old. son, Jeremy Roark, was killed in an accident involving a TDOT truck. The ease was transferred to the Claims Commission pursuant to Tenn.Code Ann. § 9-8-402(e) and was tried in October of 2003.

On the day of the accident, May 31, 2000, at approximately 11:30 a.m., Mr. Roark was driving eastbound on 1-40 returning home after taking the necessary physical exam to join the Air Force. The day was sunny and clear, and it had not rained recently. The evidence showed Mr. Roark was in good health, was not under the influence of any drugs or alcohol, and was not tired. At the site of the accident, there are three lanes of travel eastbound, an emergency lane on each side, and a grassy median area. Traffic at the time was described as heavy.

A witness to the accident, Alan E. McFarland, II, testified at trial. He stated he and his wife were in a car traveling behind Mr. Roark’s car. He testified there were two packs of vehicles and that his car was “in one pack approaching the pack that Jeremy was in.” Mr. McFarland testified he was driving approximately 75 miles per hour and was gaining on Mr. Roark’s car. At that time, Mr. Roark’s car was in the center lane of the three lane eastbound highway. Mr. McFarland testified that Mr. Roark was not speeding, weaving in and out of traffic, tailgating, or driving erratically. Mr. McFarland noticed a tractor trailer ahead of Mr. Roark’s car put on its brake lights and then saw Mr. Roark move into the far left lane of travel. Mr. McFarland testified that it was safe for Mr. Roark to change lanes when he did so. As Mr. McFarland described it, Mr. Roark in changing lanes “went a little further and that’s when, when I noticed the TDOT truck and, and then, you know, the, the accident after.” When questioned, Mi'. McFarland stated it looked to him like the right side of the TDOT truck was “right by the rumble strips.” He also testified the TDOT truck was parked entirely on the shoulder and not on the grass median.

Richard Fitzgerald, Plaintiffs trial expert, is a consultant performing traffic accident investigation and reconstruction work. Mr. Fitzgerald reconstructed the accident and testified at trial that Mr. Roark’s departure from the travel lanes onto the shoulder does not appear to have been based on any problem with environmental or roadway conditions. Mr. Fitzgerald explained that the left front portion of Mr. Roark’s car hit the right rear portion of the bed of the truck, went underneath the truck, and hit the wheels on the right side. Police measurements of a skid mark left by the left front tire of Mr. Roark’s car show that the car was at least four feet ten inches off the travel lane and onto the shoulder at the beginning of the skid and four feet two inches off at the time of impact. Mr. Fitzgerald explained that the skid mark shows Mr. Roark had steered to the right as the right tires of his car were headed toward the yellow fine, back toward the travel lane. Mr. Fitzgerald explained that the skid mark is relatively straight, which means Mr. Roark “took collision avoidance action by braking hard enough at least to lock up one tire” and means the car was tracking normally not fishtailing or out of control. Mr. Fitzgerald stated:

[T]here’s no indication that the vehicle was either yawing or fishtailing. There’s no indication that it was not under control at the time the brake application occurred. When you lock up your brakes and you lock up all the tires, you’ve got no steering. You’re riding as a passenger. So at that time the vehicle becomes out of your control. It’s going to go whichever way it was headed....

At impact, the TDOT truck was pushed from the shoulder entirely on to the grass median.

Kenneth Siler, the TDOT truck operator, is employed by the State of Tennessee working for TDOT and has worked for about eight years as a Highway Worker I. His duties include driving up and down I-40 in Knox County picking up debris on and near the road. Mr. Siler received on-the-job training by accompanying older employees on the job at first, but received no formal instruction on litter pick-up. Ordinarily, Mr. Siler works with another Highway I worker, but he was working alone on the day of the accident. Mr. Siler explained that usually one worker drives the truck and the other looks for debris and traffic hazards like “pieces of metal, aluminum ladders falling off of trucks and gators”, which are the remnants of tires. Mr. Siler stated he never knows when he may need to stop. It depends on what debris the workers find as they ride the roads.

On the morning of the accident, Mr. Siler traveled west on 1-40 and then broke for lunch around 11:00 a.m. or 11:30 a.m. After lunch, he started eastbound. He stopped at the site where the accident occurred to pick up a piece of a tire located on the grass median separating the eastbound from the westbound traffic. Mr. Siler testified that the traffic was “real heavy” and the vehicles were traveling around 70 miles per hour at this location. He also admitted that real heavy traffic like this heightened his concerns because of the risk of danger. Mr. Siler explained that as he was lifting the “gator” to throw it into the truck, he heard a noise and then was pushed. He stated he was parked for only a few seconds before the accident happened.

Mr. Siler testified he remembers parking his truck half in the grass median and half on the emergency lane or shoulder. He stated he always gets over in the grass if possible. Mr. Siler testified that at the accident site, the grass median is wide and on that day was dry. The TROT truck he was driving had a bed width of approximately eight feet. The width of the shoulder is approximately ten and a half feet. If the TDOT truck were parked as Mr. Siler remembers, it would have been sticking four feet into the shoulder leaving approximately six and a half feet between the right side of his truck and the nearest travel lane.

The TDOT truck had a yellow strobe light on the bed of the truck that was working on the day of the accident. The truck also had a red sign approximately “four by four” on its back that said “Caution. Frequent stops.” However, there were no advance warning signs showing shoulder work ahead. When questioned, Mr. Siler stated the purpose of rumble strips is to “wake people up if they’re asleep or run out of the road or at night.”

Mr. Fitzgerald, Plaintiffs expert, testified that the Manual On Uniform Traffic Control Devices (“the MUTCD”), a publication by the Federal Highway Administration, which contains the “nationally accepted practice for traffic control including work zone type activities”, has been adopted by Tennessee as a standard through Tenn.Code Ann. § 54-5-108. When testifying, Mr. Fitzgerald also referred to the Roadside Design Guide (“the Guide”), which discusses roadside features and hazards associated with them. The Guide states it is to be used in conjunction with the MUTCD. Mr. Fitzgerald testified that in its introduction section, the Guide states “[ajbout thirty percent or almost one in every three fatalities are the result of a single vehicle run off the road crash. These figures mean that the roadside environment comes into play in a very significant percentage of fatal and serious injury accidents.” He stated that the presence of rumble strips indicates that vehicles leaving the travel lanes and running off the road is a common problem. Mr. Fitzgerald stated the purpose of rumble strips is “to alert a driver that has left the traffic way to the fact that they have now encroached upon the shoulder.”

Mr. Fitzgerald testified that the MUTCD calls for the highest level of traffic control to be provided on freeways such as 1-40 and recommends an advance warning sign be used, but provides a list of exceptions to having warning signs. Mobile or short duration operations may fall into the exceptions. Litter pick-up, such as Mr. Siler was engaged in on the day of the accident, is categorized by the MUTCD as a mobile operation. Mr. Fitzgerald stated that in the MUTCD:

under the mobile operations, one of the points is that safety should not be compromised by using fewer devices simply because the operation will frequently change its location. You may have to do something different, but you don’t compromise what you need to do for safety just because you may move a lot.... [A]s a general rule the closer the work is to traffic the more traffic control devices that are needed.... [Wjhere you’re on or near the roadway edge ... ‘The shoulder should be signed as if the work were on the road itself since it is part of the driver’s recovery area’....

Mr. Fitzgerald stated the MUTCD says “it is desirable to provide an unencumbered roadside recovery area.” He also stated the MUTCD provides that for:

operations that move slowly, less than three miles an hour, it may be feasible to use stationary signs. You put up a sign, you leave it there, and move on down the road. That is periodically retrieved and re-positioned in the advance warning area. At higher speeds trucks are typically used to, as far as traffic control zones, they, they move as part of a train behind the work vehicles....

However, Mr. Fitzgerald admitted the MUTCD also provides in its section on mobile and short duration operations that:

[a]s compared to stationary operations, mobile and short duration operations are distinct activities that may involve different treatments. More mobile devices are needed. For example, signs mounted on trucks and larger, more imposing and more visible devices can be used effectively and economically. For example, appropriately colored and marked vehicles with flashing or rotating lights, perhaps augmented with signs or arrow displays, may be used in places, in place of signs and channelizing devices. The trade-off is economical because work duration is short. Mobility is essential .... Safety is not compromised as numerous small devices are merely replaced by fewer more dominant and effective devices.

Mr. Fitzgerald admitted the MUTCD does not require either a stationary advance warning sign or a trailing vehicle, but use of these measures simply is recommended practice. He also admitted there were no mandatory standards that were not met by Mr. Siler. In fact, Mr. Fitzgerald admitted the MUTCD says warning signs are not required if the work vehicle has a fast flashing or revolving yellow light, which Mr. Siler’s truck did.

When talking about clear roadside principles from the Guide, Mr. Fitzgerald stated if you can’t get the vehicle off the road or shield it with something like a guardrail, you can delineate the truck. He explained:

[t]hat would be where, for this type situation the truck has a sign on the back of it. It has a rotating beacon. He may have been flashing his hazard lights. It’s painted orange. Trying to make it stand out to delineate that there’s something there, ... if you can’t do any of the others, then that may be all you can do.

During his testimony, Mr. Fitzgerald also discussed a section from the Policy On Geometric Design of Highways and Streets, 2001 (“the AASHTO Policy”). The AASHTO Policy is prepared by the American Association of State Highway and Transportation Officials (“AASHTO”), an organization that researches and produces publications for guidance that are used by its members and others across the country. Mr. Fitzgerald admitted the AASHTO Policy states one of the purposes of a shoulder is to accommodate stopped or parked vehicles including maintenance vehicles. The AASHTO Policy states it is desirable for a vehicle stopped on the shoulder to be at least one foot from the travel lane and preferably two feet away. The AASHTO Policy states this recommendation has led to a normal shoulder width of ten feet on high type facilities, such as 1-40.

Mr. Fitzgerald testified there are several features about trucks like the TDOT truck involved in the accident that make them a special hazard. He explained that the bed of such trucks sits high and comes right above or at hood level of most cars and that such trucks are fairly rigid or strong compared to cars. In addition, such trucks weigh more than the typical car. Mr. Fitzgerald testified that these features make the potential consequences of an accident involving such a truck and a car extremely severe, even at low speeds.

Mr. Fitzgerald opined that Mr. Siler’s TDOT truck was parked entirely on the shoulder at the time of accident with its right side approximately two and a half feet from the edge of the lane of traffic. Mr. Fitzgerald stated the emergency lane is ten foot seven inches wide and that a TDOT truck similar to the one involved in the accident measured a little under eight feet wide.

Mr. Fitzgerald admitted there is no standard in the MUTCD that would require a TDOT truck to park off the shoulder in the grass median. He did not opine whether it was improper for Mr. Siler to park the distance he did from the travel lane. Instead, he stated he believes it was unsafe for Mr. Siler-to park two and a half feet from the travel lane.

William Ernest Plemons, Jr., the District Maintenance Superintendent II who supervises maintenance in District 15 which includes Knox, Blount, and Sevier Counties testified at trial. Mr. Plemons, who has been with TDOT for thirty years, supervises Mr. Siler’s direct supervisor. Mr. Plemons testified the MUTCD provides that:

“[sjhort duration activities are generally considered to be those in which it takes longer to set up and remove the traffic control zone than to perform the work. Typically such operations can be accomplished in sixty minutes or less. There are hazards involved for the crew in setting up and taking down a traffic control zone. Also the work time is short. The time during which motorists are affected is significantly increased when additional devices are installed and removed. Considering these factors, it is generally held that simplified control procedures are warranted for short duration activities. Such shortcomings may be offset by other, use of other more dominant devices such as special lighting units or work vehicles.”

Mr. Plemons explained he implements the MUTCD recommendations in his work by using trucks with strobe lights and a warning sign on the tailgate. Mr. Plemons stated the MUTCD also provides “ ‘[w] aiming signs are not required if the work vehicle displays a flashing or revolving yellow light if the distance between the location is one mile or more or if the work vehicle travels the traffic speed between the locations.’” Mr. Plemons stated it would not have been practical for Mr. Siler to have set up any signs. He also testified he believes Mr. Siler to be an honest man and takes him for his word as to where he was parked that day.

After a trial, the Commission entered a Judgment on December 8, 2003, finding, inter alia, that the TDOT truck was parked entirely on the shoulder, and that Mr. Roark was negligent in leaving the road, but this was not the proximate cause of the accident. The Commission specifically did not find that Mr. Siler had lied about where he parked the truck, but that he was simply mistaken. The Commission stated “[t]his is not a credibility issue.” Rather, the Commission simply found the evidence that the truck was parked entirely on the shoulder to be more persuasive. The Commission also found the MUTCD to be relevant to the facts and issues in this case, but held it does not control because the MUTCD contains recommendations, not mandatory standards regarding the issues involved in this case. Rather, the Commission stated a reasonable person standard applies because a reasonable person standard is a “ribbon that weaves throughout the entire MUTCD.... ” The Commission applied a reasonable person standard and found it was reasonable for Mr. Roark’s car to be on the shoulder, it was not reasonable for the TDOT truck to have been parked there, and that the TDOT truck was too close to the lanes of travel as it was in the recovery zone. The Commission stated “[tjhere needed to be a buffer to the truck or the truck needed to be off the road totally.” The parties had stipulated the damages to be in excess of $600,000. The Commission held that Mr. Roark was 45% at fault because he left the travel lanes and that the State was 55% at fault for the accident and awarded Plaintiff a judgment for the maximum of $300,000 as allowed under the statute. The State appeals to this Court.

Discussion

Although not stated exactly as such, the State raises three issues on appeal: 1) whether the Commission erred in holding it had jurisdiction under Tenn.Code Ann. § 9 — 8—307(a)(1)(J); 2) whether the evidence preponderates against the Commission’s finding that all the elements of negligence were proven; and, 3) whether the evidence preponderates against the Commission’s finding that Mr. Roark was less than fifty percent at fault for the accident.

Our review is de novo upon the record, accompanied by a presumption of correctness of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001). A trial court’s conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001).

We first will consider whether the Commission erred in holding it had jurisdiction under Tenn.Code Ann. § 9-8-307(a)(1)(J). Tenn.Code Ann. § 9-8-307(a)(1) provides, in pertinent part:

(a)(1) The commission or each commissioner sitting individually has exclusive jurisdiction to determine all monetary claims against the state based on the acts or omissions of “state employees,” as defined in § 8-42-101(3), falling within one (1) or more of the following categories:
(A) The negligent operation or maintenance of any motor vehicle or any other land, ah’, or sea conveyance. In addition, the state may be held liable pursuant to this subdivision for the negligent operation of state-owned motor vehicles or other conveyances by persons who are not state employees; provided, that such persons operated the vehicle or other conveyance with the permission of a state employee;
(C) Negligently created or maintained dangerous conditions on state controlled real property. The claimant under this subsection must establish the foreseeability of the risks and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures;
(I) Negligence in planning and programming for, inspection of, design of, preparation of plans for, approval of plans for, and construction of, public roads, streets, highways, and bridges and similar structures, and negligence in maintenance of highways, and bridges and similar structures, designated by the department of transportation as being on the state system of highways or the state system of interstate highways;
(J) Dangerous conditions on state maintained highways. The claimant under this subsection must establish the foreseeability of the risk and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures;
(M) Negligent operation of machinery or equipment; ...

Tenn.Code Ann. § 9-8-807(a)(1) (Supp.2003).

The Commission held it had jurisdiction under Tenn.Code Ann. § 9-8-307(a)(1)(J). In its appellate brief, the State argues that Tenn.Code Ann. § 9-8-307(a)(1)(J) “does not apply to the type of two-vehicle collision at issue here.” The State cites to Sweeney v. State, in which our Supreme Court held that in cases under subsection (J), a court “should consider the physical aspects of the roadway, the frequency of accidents at that place in the highway and the testimony of expert witnesses ...” in making the factual determination of whether the condition of the highway is dangerous. Sweeney v. State, 768 S.W.2d 253, 255 (Tenn.1989) (quoting Holmes v. Christopher, 435 So.2d 1022, 1026 (La.Ct.App.1983)). The State argues that “[t]his analysis clearly contemplates potential liability based on the physical condition of the actual roadway....” In addition, the State cites to Smith v. State, in which this Court declined to hold that jurisdiction existed under subsection (J) in a case involving a state vehicle that was parked. Smith v. State, No. W2002-00874-COA-R3-CV, 2002 WL 31895719, 2002 Tenn. App. LEXIS 939 (Tenn.Ct.App. Dec.30, 2002), no appl. perm, appeal filed. We agree with the State’s assertion that jurisdiction in the instant case does not fall under subsection (J).

However, Plaintiffs Complaint also pled that jurisdiction was present under Tenn.Code Ann. §§ 9-8-307(a)(1)(A), (C), (I), and (M). In our Smith v. State opinion relied on by the State, this Court discussed whether the parking of a police cruiser properly fell into the category of negligent operation of a vehicle under subsection (A) and held that jurisdiction was proper under subsection (A). Smith, 2002 WL 31895719 at *2-*4, 2002 Tenn.App. LEXIS 939, at *12-14. The Smith Court stated “[rjegardless of whether [the trooper] was inside of the vehicle when the accident occurred, operation of the vehicle by [the trooper] resulted in the condition and placement of the vehicle at the time of the accident causing injuries to [the plaintiff].” Id. at *5, at *14.

The operative facts in the instant case are similar to the Smith case. Just as in Smith, the Commission in this case had jurisdiction to adjudicate whether the operation and parking of the state owned vehicle was negligent and whether, if it was negligent, it was the proximate cause of the injuries suffered by Mr. Roark. As Plaintiff pled a proper basis for jurisdiction, we hold the Commission did have jurisdiction to adjudicate the issues involved in this suit under Tenn.Code Ann. § 9-8-307(a)(1)(A).

We next will consider whether the evidence preponderates against the Commission’s finding that all the elements of negligence were proven. To prove negligence, a plaintiff must show “(1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal, causation.” Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000).

The State argues it did not owe a duty to Mr. Roark; that even if it did owe a duty, there was no breach; and that Mr. Siler’s parking the TDOT truck on the shoulder was not the proximate cause of the accident. As our Supreme Court instructed in Rice v. Sabir:

In analyzing duty, the court must balance the foreseeability and gravity of the potential risk of harm to a plaintiff against the burden imposed on the defendant in protecting against that harm. McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 902 (Tenn.1996). A “risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by defendant’s conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995).

Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn.1998) (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995)). “This analysis applies even when the injury-causing condition was purportedly open and obvious.” Id. at 309.

In the case at hand, Plaintiffs expert, Mr. Fitzgerald, testified that the Guide states “[ajbout thirty percent or almost one in every three fatalities are the result of a single vehicle run off the road crash. These figures mean that the roadside environment comes into play in a very significant percentage of fatal and serious injury accidents.” He also testified that the presence of rumble strips indicates that vehicles leaving the travel lanes and running off the road is a common problem. Further, Mr. Fitzgerald testified there are several features about trucks like the TDOT truck involved in the accident that make them a special hazard, including the fact that the truck bed sits high, the truck is fairly rigid or strong, and the truck weighs more than the typical car. Mr. Fitzgerald stated these features make the potential consequences of an accident involving such a truck and a car extremely severe, even at low speeds. Given these facts, it was foreseeable a car could leave the travel lanes and run onto the shoulder of the road and that a collision between such a car and the TDOT truck would have severe, potentially fatal, consequences.

Further, Mr. Siler testified he always gets over in the grass if possible and there was nothing to prevent him from pulling the TDOT truck completely onto the grass median on that day at that site. Mr. Siler candidly admitted in his testimony that the traffic on the interstate where the accident occurred was “real heavy” and traveling generally around 70 miles per hour. He further admitted that this high speed, real heavy traffic caused him concerns because it increased the risk. Clearly, as evidenced by his policy of always pulling onto the grass if possible, Mr. Siler, as would any reasonable driver, could and did foresee the risk of parking on the shoulder and the potential gravity of harm. Even though the injury-causing condition, the parked TDOT truck, purportedly was open and obvious, given the foreseeability and the gravity of the potential harm, the State owed a duty to Mr. Roark and other drivers traveling on 1-40.

The duty owed to Mr. Roark and other drivers was breached when Mr. Siler parked the TDOT truck closer to the travel lanes than necessary at that site. The evidence does not preponderate against the Commission’s finding that the TDOT truck was parked entirely on the shoulder, too close to the lanes of travel, and in the recovery zone. Mr. Siler’s testimony establishes that there was no reason he could not have parked the truck on the grass median and it was his usual practice to do so. Although Mr. Siler violated no mandatory standards by parking where he did, he did not act as a reasonable person by parking entirely on the shoulder given the facts in this case.

We in no way mean to suggest that TDOT, or other drivers, always must pull their vehicles completely off the shoulder or be in violation of the reasonable person standard. A determination of whether the reasonable person standard has been violated is fact driven and will depend entirely upon the specific facts of each particular case. There will be numerous situations where it is either impossible or unsafe to pull a TDOT truck or other vehicle completely off the shoulder. We need not and are not addressing any situation except the one posed by the particular facts in the case at hand.

The State argues Mr. Roark was negligent and that his conduct, not Mr. Siler’s, was the proximate cause of the accident. The State relies upon Bennett v. Putnam County, Tennessee, in which this Court held that the actions of an ambulance driver in parking the ambulance were not the proximate cause of an accident because the car that struck the ambulance left its travel lane and crossed into the on-coming travel lane prior to striking the ambulance. Bennett v. Putnam County, Tennessee, 47 S.W.3d 438 (Tenn.Ct.App.2000). The State cites to Bennett for the proposition that “[t]he general rule is that every person has a right to presume that every other person will do his duty and obey the law.” Id. at 444 (quoting Donaho v. Large, 25 Tenn.App. 433, 158 S.W.2d 447, 451 (1941)).

However, in Bennett, this Court also discussed the fact that “[a]n act or omission will not be considered a proximate cause of an injury if a reasonable person could not have foreseen or anticipated the injury.” Id. In Bennett, the ambulance driver could not have foreseen that another driver would leave the unobstructed eastbound travel lane, cross into the westbound travel lane, and then collide with the ambulance which was parked at the scene of a previous accident with its lights on. Id. In addition, the Bennett Court noted that from the testimony, it appeared the driver of the car that left its travel lane “simply did not have her vehicle under proper control and was not devoting full time and attention to the driving of her vehicle.” Id.

The ease at hand differs significantly from Bennett. In this case, as discussed above, Mr. Siler could reasonably foresee a possible injury as a result of parking the TDOT truck on the shoulder at this heavy and high speed traffic location. In addition, there was no evidence presented in the case at hand as to why Mr. Roark left his lane of travel and we cannot, and will not, speculate that he was not devoting full time and attention to his driving. As such, the holding in Bennett does not control this case. We hold that the action of Mr. Siler in parking the TDOT truck in an unsafe position was a proximate cause of the accident.

Finally, we consider whether the evidence preponderates against the Commission’s finding that Mr. Roark was less than fifty percent at fault for the accident. The State’s appellate brief argues that the fact that Mr. Roark’s vehicle left the travel lanes “creates a presumption of negligence” and that given the evidence that Mr. Roark’s vehicle left the travel lanes “the presumption that a deceased person was acting with due care disappears.” Expressing no opinion about whether these contentions are correct, we note the Commission did find Mr. Roark to have been negligent and to have been 45% at fault for the accident. Significant fault was assigned to Mr. Roark. Thus, we need not discuss any further the State’s assertions regarding such presumptions.

The State cites to Eaton v. McLain, in which our Supreme Court presented a list of factors that a trier of fact may consider when assigning fault. Eaton v. McLain, 891 S.W.2d 587 (Tenn.1994). These factors include:

(1) the relative closeness of the causal relationship between the conduct of the defendant and the injury to the plaintiff; (2) the reasonableness of the party’s conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it; (3) the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid the injury to the plaintiff; (4) the existence of a sudden emergency requiring a hasty decision; (5) the significance of what the party was attempting to accomplish by the conduct, such as an attempt to save another’s life; and (6) the party’s particular capacities, such as age, maturity, training, education, and so forth.

Id. at 592 (footnotes omitted). However, the Eaton Court specifically stated that these factors are not exclusive and “the percentage of fault assigned to each party should be dependent upon all the circumstances of the case....” Id.

An analysis of the facts of this case applying the Eaton factors shows there is a direct causal relationship between the conduct of Mr. Siler in parking the TDOT truck completely on the shoulder and the injuries to Mr. Roark. There was no reason Mr. Siler could not have parked the truck completely off the shoulder on the grass median at this site. The evidence in the record before us is that if Mr. Siler had parked the truck completely, or even half of the truck, on the grass median, the collision would not have occurred. The evidence shows Mr. Siler was aware of the risk in parking entirely on the shoulder as evidenced by his testimony that it was his usual practice to pull the truck onto the grass if possible. In addition, Mr. Siler failed to reasonably utilize an existing opportunity to avoid injuring others. Mr. Siler’s testimony was that the grass median at the accident site is wide and on that day was dry and there was no reason he could not have pulled the TDOT truck entirely onto the grass median. The State argues that Mr. Roark could have avoided the accident by staying in his travel lane. However, as discussed above, even though the record is devoid of evidence showing why Mr. Roark left his lane of travel, the Commission did allocate 45% of the fault to him. The fourth Eaton factor is not applicable to this case. The fifth factor, when considered, shows that Mr. Siler’s task of litter pick-up, while useful and necessary, could not be considered to be a significant one, such as an attempt to save the life of another, as the litter then being picked up was off the road completely. As for the final Eaton factor, Mr. Siler was trained to do his job by riding the roads with more experienced employees and the evidence shows he understood the dangers and risks inherent in parking the TDOT truck on or near the highway. Thus, the analysis of the facts of this case applying the Eaton factors supports the Commission’s assignment of fault.

Other evidence presented in the case also supports the Commission’s apportionment of fault. Mr. McFarland, a witness to the accident, testified the TDOT truck was parked entirely on the shoulder and not on the grass median. He also stated that it looked to him like the right side of the TDOT truck was “right by the rumble strips.” The evidence showed that rumble strips are designed to alert a driver who has left the travel lane. Mr. Fitzgerald, Plaintiffs expert, testified that the presence of ramble strips indicates that vehicles leaving the travel lanes and running off the road is a common problem. Mr. Fitzgerald opined that Mr. Siler’s TDOT track was located entirely on the shoulder at the time of the accident parked with its right side approximately two and a half feet from the edge of the lane of traffic. The Commission found the truck was too close to the travel lanes and that it was in the recovery zone. The evidence does not preponderate against these findings.

Mr. McFarland, who witnessed both the accident and Mr. Roark’s driving just prior to the accident, testified that Mr. Roark was not speeding, weaving in and out of traffic, tailgating, or driving erratically. Mr. McFarland testified that when Mr. Roark moved from the center lane to the left lane, it was safe for him to do so. Plaintiffs expert testified that the skid mark showed that Mr. Roark took collision avoidance and had steered to the right, back toward the travel lane. The evidence does not preponderate against the Commission’s finding that Mr. Roark was less than fifty percent at fault for the accident and, therefore, we affirm the Commission’s findings allocating fault.

Conclusion

The judgment of the Commission is affirmed, and this cause is remanded to the Commission for collection of the costs below. The costs on appeal are assessed against the Appellant, the State of Tennessee.

HERSCHEL P. FRANKS, P.J., filed a separate dissenting opinion.

HERSCHEL P. FRANKS, P.J.,

dissenting.

Assuming arguendo that the State’s parked vehicle was a contributing proximate cause of the accident, the Commissioner’s and the majority’s approach by focusing almost exclusively on the defendant’s parked vehicle and its location, led them in my view to the wrong conclusion. The majority is unable to point to any specific regulatory or statutory violations by the defendant. In contrast, the deceased violated numerous statutes, as well as common law violations. See Tenn.Code Ann. § 55-8-101 et seq., Operation of Vehicles-Rules of the Road.

Clearly, in my opinion, the deceased by leaving the main traveled portion of the road violated several rales of the road. By driving onto the shoulder and striking a stationery vehicle, he was more than 50% at fault for this accident.

I would reverse the Judgment of the Claims Commission.


source: Caselaw Access Project

author: Justice O’Neill

license: Public Domain

text:
    WESTERN INVESTMENTS, INC., Front Royale Apartments, Western Investments d/b/a Front Royale Apartments, Ron Deutsch, Warren Deutsch, and Kate Michon, Petitioners, v. Maria URENA, Individually and as Next Friend of L.U., a Minor, Respondent.
    No. 03-0919.
    Supreme Court of Texas.
    Argued Sept. 28, 2004.
    Decided April 8, 2005.
    Rehearing Denied June 10, 2005.

      Evelyn Ailts Derrington, Brock C. Ak-ers, Phillips & Akers, P.C., Houston, for petitioners.
    James T. Liston, Francis I. Spagnoletti, Jerry Von Sternberg, Spagnoletti & Co., Houston, for respondent.
    Deborah J. Lafetra, Sacramento, CA, for Amicus Curiae Pacific Legal Foundation.
   Justice O’Neill

delivered the opinion of the Court.

In this case, we decide whether a tenant presented any evidence that the acts or omissions of an apartment complex, its owners, and its manager proximately caused a tenant-on-tenant sexual assault that occurred at the complex. The trial court granted summary judgment for the defendants on all claims, but the court of appeals reversed and remanded. 122 S.W.3d 249. We hold that the plaintiffs presented no evidence that the defendants’ acts or omissions proximately caused the plaintiffs’ injuries. Accordingly, we reverse the judgment of the court of appeals and render judgment for the defendants.

I

Maria Urena and her ten-year-old son, L.U., lived in the Front Royale Apartments in Houston. L.U. has the mental capacity of a four-year-old. One day in November 1999, Urena left L.U. under the care of his aunt, who also lived in the complex. At around 10:00 in the morning, L.U. left his aunt’s apartment, unsupervised, to retrieve some toys from his home. On the way back, another Front Royale resident, Michael Zuniga, lured L.U. into his apartment with the promise of a one-dollar bill and sexually assaulted him. L.U.’s aunt discovered the assault immediately, confronted Zuniga, and called the police. Zuniga fled and has never been apprehended.

Urena, individually and on behalf of L.U., sued Western Investments, Front Royale Apartments, Ron Deutsch, and Warren Deutsch, the complex owners; and the complex manager, Kate Michon (collectively, “Front Royale”), for negligence, premises liability, breach of contract, breach of implied warranty of habitability, and violations of the Deceptive Trade Practices-Consumer Protection Act. Tex. Bus. & Com. Code §§ 17.41-.63.

The defendants filed joint motions for summary judgment under Texas Rules of Civil Procedure 166a(c) and 166a(i), contending that no act or omission on their part proximately caused L.U.’s injuries. The trial court granted summary judgment in them favor without specifying the grounds and rendered a take-nothing judgment against Urena. Urena appealed the judgment on her negligence and premises-liability claims only. The court of appeals reversed and remanded, holding that genuine issues of material fact existed regarding the foreseeability of the sexual assault and whether Front Royale breached its legal duty to protect Urena and L.U. from the criminal acts of third parties. 122 S.W.3d 249, 257.

Citing a series of violent crimes such as attempted sexual assault, robbery, and murder occurring in and around the Front Royale complex over a two-year period preceding L.U.’s assault, the court of appeals held that these crimes, which were violent and personal in nature, created a fact question as to whether the risk of other violent crimes in the apartment complex was foreseeable. Id. at. 255. Applying this Court’s decision in Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex.1998), the court of appeals held that summary judgment was improper and a fact issue remained with regard to whether Front Royale owed Urena and her family a legal duty to provide protection from the criminal acts of third parties. Id.

The court of appeals also held that the plaintiff presented evidence sufficient to raise a fact issue as to whether Front Royale breached that duty. Id. at 256. The court relied on the following evidence to support its conclusion: (1) Front Royale had not replaced its previously terminated security company at the time of the attack; (2) the apartment manager’s testimony that she did not request or obtain police reports of calls related to criminal activity in the area as the Texas Apartment Association’s “Red Book” recommended; and (3) although various witnesses testified that Front Royale required prospective tenants to provide certain documents such as Social Security cards and drivers licenses, and performed criminal background checks on at least some tenants, these documents were missing from a number of the tenants’ files. Id.

The defendants argue that Urena failed to present any evidence that Front Ro-yale’s acts or omissions proximately caused L.U.’s injuries and therefore the trial court properly granted summary judgment in its favor.

II

To succeed in a motion for summary judgment under Rule 166a(c), a mov-ant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). In reviewing a summary judgment, we consider the evidence in the light most favorable to the non-movant and resolve any doubt in the non-movant’s favor. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Under Rule 166a(i), a party 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. Unless the respondent produces summary judgment evidence raising a genuine issue of material fact, the court must grant the motion. Tex.R. Civ. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). Because the trial court’s order granting summary judgment does not specify the basis for the ruling, we must affirm the trial court’s judgment if any of the theories advanced are meritorious. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).

Ill

Urena contends she presented evidence that Front Royale proximately caused L.U.’s injuries by failing to provide appropriate security personnel and security measures, failing to implement sufficient security policies and procedures, and failing to warn the other tenants of Zuniga’s dangerous tendencies. These failures, Urena claims, constitute negligence in managing the complex as well as a breach of a duty to remedy a premises defect about which Front Royale knew or should have known.

We analyze Urena’s negligence and premises-liability claims together. To prevail on her negligence cause of action, Urena must establish the existence of a duty, a breach of that duty, and damages proximately caused by the breach. Doe v. Boys Clubs of Greater Dallas, Inc. 907 S.W.2d 472, 477 (Tex.1995). Premises liability is a special form of negligence where the duty owed to the plaintiff depends upon the status of the plaintiff at the time the incident occurred. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex.2004); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295-96 (Tex.1983). Here, because the Urenas were invitees, the premises liability inquiry focuses on whether Front Royale proximately caused L.U.’s injuries by faffing to use ordinary care to reduce or to eliminate an unreasonable risk of harm created by a premises condition that it knew about or should have known about. See Timberwalk, 972 S.W.2d at 753.

Negligence and premises liability, therefore, involve closely related but distinct duty analyses. But we need not delve into this distinction to resolve this case because recovery under either cause of action is foreclosed in the absence of evidence that Front Royale’s acts or omissions proximately caused L.U.’s injuries. Even if we were to assume that Front Royale owed the Urenas a duty to provide security guards, obtain police reports of calls related to criminal activity in the area, and investigate its tenants, as Urena contends, and further assumed that Front Royale breached these duties, there is no evidence that such a breach proximately caused the tragic occurrence here. Proximate cause has two elements: cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). “These elements cannot be established by mere conjecture, guess, or speculation.” Doe, 907 S.W.2d at 477. The test for cause in fact is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003). If the defendant’s negligence merely furnished a condition that made the injuries possible, there can be no cause in fact. See IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex.2004).

Urena points to three areas in which Front Royale allegedly breached its duty and argues that these breaches caused L.U.’s assault. First, Urena relies on deposition testimony showing that at the time of the assault, Front Royale did not employ a security company to patrol the complex. Urena alleges that had Front Royale provided adequate security, the assault would not have occurred. She presented no evidence, however, that increased security would have prevented this crime. Zuniga was a tenant authorized to be on the property. As such, security guards could not have prevented him from moving freely about the complex and interacting with other residents, nor would security guards have had the ability to monitor the goings-on inside Zuniga’s own apartment. Zuniga approached L.U. at 10:00 in the morning, calling L.U. by his name. When Zuniga asked him to come into the apartment he did so, apparently willingly. There was no evidence of a struggle or physical confrontation in the common areas of the complex, nor was there evidence that L.U. raised an outcry that would have been heard outside of Zuniga’s apartment once the assault was underway. In sum, nothing transpired that reasonably would have alerted security guards had they been present.

Second, Urena relies on the apartment manager’s testimony that she did not obtain police reports of calls related to criminal activity in the area, even though the guide she used in operating the apartments recommended it. But there is no evidence that the police reports would have alerted management that its tenant, Zuniga, was likely to sexually assault a young child. Police reports about criminal activity in the area would have done nothing to alert management that Zuniga was a pedophile, or to suggest that an attack by a pedophile tenant was likely to occur.

Third, Urena claims that although Front Royale required certain documents from prospective tenants like Social Security cards, drivers licenses, and criminal-background checks, these documents were missing from a number of tenants’ files. But there is no causal connection between this alleged breach of duty and L.U.’s injury. None of the tenants whose files were allegedly incomplete committed the crime here. Furthermore, a background check on Zuniga revealed only • driving infractions, nothing that would have alerted a reasonable landlord to the possibility that he posed a danger to others.

Simply stated, Urena presented no evidence that L.U.’s sexual assault could have been prevented if Front Royale had done the three things the plaintiff claims it should have done. Even assuming Front Royale’s acts or omissions constituted breach of a duty owed to the Urenas, as they allege, the Urenas presented no evidence that such acts or omissions were a substantial factor in causing L.U.’s injury.

IV

We reverse the judgment of the court of appeals and render judgment in favor of Front Royale.

      . The record does not clarify the exact relationship between Western Investments, Front Royale Apartments, Ron Deutsch, and Warren Deutsch.

      . As noted by the amicus curiae, Pacific Legal Foundation, landlord liability for tenant-on-tenant crime poses policy concerns above and beyond those inherent in cases in which tenants sue landlords as a result of third-party criminal actions perpetrated by an intruder. For instance, in order to prevent tenant-on-tenant crime a landlord might have to continuously monitor tenants to determine their propensity for criminal behavior. The amicus argues that such monitoring, in itself, has the potential to invade upon a tenant's rights of privacy. If a landlord discovers a potentially dangerous tenant, the landlord may be required to disclose this information in order to protect other tenants. Such disclosure, claims the amicus, could expose landlords to liability for defamation or other privacy-related torts. In this case we need not decide the existence or scope of a landlord’s duty to prevent tenant-on-tenant crime because the plaintiffs presented no evidence that Front Royale’s acts or failure to act proximately caused L.U.’s injuries.


author: Justice OWEN

text:
    Chon TRI a/k/a Hien Dinh Nguyen and Theravada Buddhist Corporation, Petitioners, v. J.T.T. and M.T., Respondents.
    No. 03-0794.
    Supreme Court of Texas.
    Argued Sept. 28, 2004.
    Decided May 13, 2005.
    Rehearing Denied June 10, 2005.

      Grant Parker Harpold, Hargis & Har-pold, L.L.P., Houston, for Petitioners.
    Richard L. Flowers Jr., Kevin McEvily, McEvily & Flowers, Michael 0. Whitmire, Christopher Lynn Ashby, Ashby & Whit-mire, Houston, for Respondents.
   Justice OWEN

delivered the opinion of the Court.

The ultimate question in this case is whether the trial court was required to render a judgment other than the one it did based on the jury’s findings. There were two theories of liability — conspiracy and negligence. Conspiracy is a ground of recovery that has more than one element. Some but not all the elements of conspiracy were submitted to and found by the jury, and the trial court was not asked to and did not find the omitted elements. The trial court’s judgment did not include any recovery on the basis of conspiracy. In these circumstances, the omitted elements of conspiracy are “deemed found by the court in such manner as to support the judgment.” With regard to negligence, the trial court refused to impose individual liability on a corporation’s agent and instead held the corporation liable for its agent’s negligence. The record does not reflect that the trial court erred in doing so. We accordingly reverse the court of appeals’ judgment and affirm the trial court’s judgment, which awards damages for negligence but not conspiracy.

I

The plaintiffs in this case are sisters, J.T.T. and M.T. We have few facts before us because the sisters, who were the appellants in the court of appeals, did not designate any of the evidence adduced at trial for inclusion in the appellate record, nor did the defendants counter-designate any part of the record. The sisters designated only their live pleadings at the time of trial, a handwritten request for a jury question that is not relevant to the issues on appeal, and the clerk’s and reporter’s records regarding a number of post-verdict proceedings.

Based on the parties’ recitation of facts in briefing before the court of appeals and this Court to which no challenge has been made, we know that J.T.T. and M.T. were raped and otherwise sexually assaulted by Dung Huu Khuat, a Buddhist monk, while they were guests at a Buddhist temple in Pomona, California. Khuat was convicted in California of rape and other sexual assaults of the sisters. They brought suit in Texas against Khuat, who did not appear at trial, and four other defendants: Theravada Buddhist Corp., which owned or operated the California temple at which the assaults occurred; Phap Luan Buddhist Culture Center, located in Houston; Ho Giac, a monk at the Houston-based Phap Luan Buddhist Culture Center; and Chon Tri, a monk at the California temple and an officer of the Theravada Buddhist Corp.

At the conclusion of a jury trial, the trial court rendered judgment in favor of J.T.T. and M.T. against some but not all defendants on some but not all legal theories the sisters had asserted. J.T.T. and M.T. appealed. The Houston-based Phap Luan Buddhist Culture Center and its clergyman Ho Giac also filed a notice of appeal, but they settled with the sisters prior to the court of appeals’ disposition of the case. The only remaining parties to the appeal in this Court are J.T.T. and M.T., the Theravada Buddhist Corp., which operated the California temple, and one of the clergymen, Chon Tri.

We will analyze the jury’s verdict and the trial court’s pre-and post-trial determinations in greater detail later in this opinion, but to summarize, the jury was instructed that the “negligence” of Khuat, the rapist, caused “the occurrence in question,” and the jury was asked to find whether the negligence of any of the other four defendants proximately caused “the occurrence in question.” The charge permitted the jury to find negligence on the part of the operator of the California temple based on simple negligence, premises liability, or both. The jury found the two clergymen as well as the operator of the California temple negligent, but it failed to find the Houston-based Buddhist Culture Center negligent. The jury was not instructed that the rapist Khuat committed negligence per se, as the court of appeals’ opinion states.

The jury was then asked to apportion negligence among the defendants, including the rapist Khuat. It attributed 85% to Khuat, 5% to Chon Tri (the California-based clergy), 5% to Ho Giac (the Houston-based clergy), 5% to Theravada Buddhist Corp. (the operator of the California temple), and 0% to the Houston-based Buddhist Culture Center. The jury was then asked to decide the amounts that would compensate the sisters, and it awarded $488,000 to J.T.T. and $727,000 to M.T.

The jury was also asked to find whether any of the defendants were “part of a conspiracy that damaged” J.T.T. and M.T. The jury answered “yes” as to all defendants except the Houston-based Buddhist Culture Center. In response to other questions, the jury found that Khuat, the rapist, acted with malice and assessed $4,500,000 in punitive damages against him. The jury failed to find that any of the other defendants acted with malice.

The trial court’s judgment reflects that the trial court found as a matter of law that two of the clergymen, Chon Tri and Ho Giac, “were acting within the course and scope of their employment with [the operator of the California temple] and [the Houston-based Buddhist Culture Center], respectively.” The trial court then rendered judgment against the rapist Khuat for 85% of the damages found by the jury, against the Theravada Buddhist Corp. (the operator of the California temple) for 10% of the damages found by the jury, and against Ho Giac (the Houston-based clergy) for 5% of the damages. Pre-and post-judgment interest was awarded on each of the amounts assessed against these defendants. A take-nothing judgment was rendered in favor of the Houston-based Buddhist Culture Center although there were negligence findings against its employee Ho Giac, and a take-nothing judgment was also rendered in favor of Chon Tri (the California clergyman), although there were jury findings against him individually, and the corporation in which he was an officer, Theravada Buddhist Corp., was held vicariously liable for his negligence. The trial court’s judgment imposed joint and several liability only for court costs. The judgment thus gave no effect to the conspiracy-related findings and did not impose liability on Chon Tri individually.

In the court of appeals, J.T.T. and M.T. challenged the trial court’s failure to give effect to the conspiracy-related findings and the failure to render judgment against Chon Tri in his individual capacity. The court of appeals sustained these points and remanded the case to the trial court with instructions to reform the judgment by imposing joint and several liability against the three remaining defendants (the rapist Khuat, the operator of the California temple Theravada Buddhist Corp., and California clergyman Chon Tri) and to render judgment against Chon Tri individually for 5% of the sisters’ damages. The court of appeals also directed the trial court to reduce Theravada Buddhist Corp.’s percentage of liability for the actual damages to 5% from 10%. For the reasons we consider below, the record before us does not reflect that the trial court erred. Accordingly, we reverse the court of appeals’ judgment.

II

J.T.T. and M.T. contended in the court of appeals and maintain in this Court that the trial court committed errors of law that are apparent on the face of the record. They argued that since the trial court did not “upset” any of the jury’s findings, the trial court was required to enter a judgment on the jury’s verdict. We first consider the sisters’ contentions regarding civil conspiracy.

A

J.T.T. and M.T. asserted in the court of appeals that the jury found a conspiracy and therefore the trial court was required to give effect to those findings and impose joint and several liability on the defendants. Although J.T.T. and M.T. asserted that no examination .of the facts presented to the jury was necessary to sustain this point of error on appeal, and none of those facts were part of the appellate record, the sisters nevertheless proceeded to discuss in their briefing before the court of appeals facts they said established a civil conspiracy.

Theravada Buddhist Corp. (the operator of the California temple) and Chon Tri assert that the jury was not requested to and did not find that they agreed to accomplish an unlawful purpose, in this case sexual assault. They assert that based on the trial court’s charge, all the jury could have found was an agreement to be negligent.

This Court has addressed the elements of an actionable civil conspiracy in at least three decisions within the last ten years. We have said those elements include:

(1), two or more persons;
(2) an object to be accomplished;
(3) a meeting of the minds on the object or course of action;
(4) one or more unlawful, overt acts; and
(5) damages as a proximate result.

We have consistently held that there cannot be a civil conspiracy to be negligent. The court of appeals acknowledged this rule of law but concluded that it “does not entail that parties cannot conspire to cause injury by their negligence, for, in such a ease, the gist of the conspiracy is not negligence, but the injury the conspirators specifically intend to cause.” This statement is, with all due respect, circular. If parties agreed and intended to cause a particular injury and followed through with that agreement, then the injury would be due to an intentional act, not negligence. Similarly, it appears that the court of appeals did not fully understand what we said in Triplex and repeated in Juki: “merely proving a joint ‘intent to engage in the conduct that resulted in the injury’ is not sufficient to establish a cause of action for civil conspiracy.” If proving intent to engage in the conduct that resulted in injury were enough, intent to leave an excavation in a roadway uncovered, with no warning signs, would give rise to liability for a civil conspiracy even though the conduct amounted to negligence and perhaps gross negligence, depending on the circumstances, but did not amount to an intentional tort.

With these principles in mind, we turn to the jury’s findings in this case. We reiterate that none of the facts presented to the jury are before us. We do not have any record of what transpired at trial. We do not know whether there is evidence to support each of the elements of conspiracy because none of the parties has argued either that there is some evidence to support the jury’s findings or that there is no evidence to support the jury’s findings. The only question before us is whether, based on the face of the charge to the jury and the answers to that charge, the trial court was required to render a judgment in favor of J.T.T. and M.T. based on a conspiracy theory.

In answering that question, Rule 279 of the Rules of Civil Procedure provides our road map. It says in pertinent part:

Rule 279. Omissions From the Charge.

Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived. When a ground of recovery or defense consists of more than one element, if one or more of such elements necessary to sustain such ground of recovery or defense, and necessarily referable thereto, are submitted to and found by the jury, and one or more of such elements are omitted from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted element or elements in support of the judgment. If no such written findings are made, such omitted element or elements shall be deemed found by the court in such manner as to support the judgment.

Civil conspiracy is a ground of recovery that has more than one element. If one or more elements of that cause of action was omitted from the charge, and there was no request to include the omitted element or objection to its exclusion, and no written findings were made by the trial court on the omitted element, then the omitted element must be deemed found by the trial court in a manner that supports its judgment. In this case, the judgment did not include any liability based on conspiracy, and therefore, the trial court will be deemed to have found the omitted element in support of its judgment if the other requirements of Rule 279 are met. J.T.T. and M.T. do not contend that they objected to the way the conspiracy issue was submitted, and the limited record before us does not contain any objections to the charge. Nor do the sisters suggest that there are written findings by the trial court on this issue. The only question, then, is whether an element of recovery based on conspiracy was omitted.

To determine whether there was an omission, we must examine the charge and the jury’s findings. We begin with the negligence and damage questions, because, as all the parties agree, the jury’s findings regarding conspiracy in this particular case cannot be viewed in isolation:

QUESTION 1
Did the negligence, if any, of those named below proximately cause the occurrence in question regarding [J.T.T.]?
“NEGLIGENCE” means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.
With respect to the condition of the premises, THERAVADA BUDDHIST CORPORATION as owner or occupier of the premises was negligent if:
a. the condition posed an unreasonable risk of harm, and
b. THERAVADA BUDDHIST CORPORATION knew or reasonably should have known of the danger, and
c. THERAVADA BUDDHIST CORPORATION failed to exercise ordinary care to protect [J.T.T.] from the danger by both failing to adequately warn [J.T.T.] of the condition and failing to make that condition reasonably safe.
“ORDINARY CARE” means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. “ORDINARY CARE,” when used with respect to the conduct of THERAVADA BUDDHIST CORPORATION as an owner or occupier of a premises, means that degree of care that would be used by an owner or occupier of ordinary prudence under the same or similar circumstances.
“PROXIMATE CAUSE” means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.
There may be more than one proximate cause of an event.
You are instructed that the negligence of DUNG HUU KHAT [sic] caused the occurrence in question.
Answer ‘Tes” or “No” for each of the following:
b. HO GIAC _ yes
c. THERAVADA BUDDHIST CORPORATION _ yes
d. PHAP LUAN BUDDHIST CULTURE CENTER _ no
If you have answered ‘Tes” to QUESTION 1 for one or more of those named below, then answer the following question. Otherwise, do not answer QUESTION 2.
QUESTION 2
What percentage of the negligence that caused the occurrence in question regarding [J.T.T.] do you find to be attributable to each of those found by you, in your answer to QUESTION 1, or instructed by the judge in QUESTION 1 to have been negligent?
The percentages you find must total 100 percent. The percentages must be expressed in whole numbers. The negligence attributable to any one named below is not necessarily measured by the number of acts or omissions found.
b. CHON TRI 5%
e. HO GIAC 5%
d. THERAVADA BUDDHIST CORPORATION 5%
e. PHAP LUAN BUDDHIST CULTURE CENTER 0%
Total 100%
QUESTION 3
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate [J.T.T.] for her injuries, if any, that resulted from the occurrence in question?
Consider the following elements of damages and none other. Consider each question separately. Do not include damages for one element in any other element. Do not include interest on any amount of damages you find, if any. Do not include any amount for any condition not resulting from the occurrence in question. Do not include any amount for any condition existing before the occurrence in question, except to the extent, if any, that such other condition was aggravated by any injuries that resulted from the occurrence in question. Answer in dollars and cents, if any
a. Physical pain and mental anguish in the past $150,000
b. Physical pain and mental anguish that, in reasonable probability, will be sustained in the future $300,000
c.Reasonable expense of necessary medical care that, in reasonable probability, will be sustained in the future $38,000

The same series of questions was asked with regard to M.T., and the jury’s answers were the same, except that the award of damages to M.T. was larger. The jury was then asked the following conspiracy-related question:

QUESTION 7
Were any of the parties named below part of a conspiracy that damaged [J.T.T.]?
To be part of a conspiracy, the party named below for which you answer “Yes” and another person or persons must have had knowledge or [sic], agreed to and intended a common objective or course of action that resulted in the damages to [J.T.T.]. One or more persons involved in the conspiracy must have performed some act or acts to further the conspiracy.
Answer ‘Yes” or “No” for each of the following:
b. CHON TRI yes
c. HOGIAC yes
d. THERAVADA BUDDHIST COI yes
e.PHAP LUAN BUDDHIST CULTURE CENTER _ no

An identical question was put to the jury with regard to M.T., and the answers were the same.

This charge did not require the jury to find that there was a meeting of the minds to accomplish an unlawful purpose or to accomplish a lawful purpose by an unlawful means. The charge only required the jury to find that the defendants “agreed to and intended a common objective or course of action that resulted in the damages to” J.T.T. and M.T. Additionally, the charge permitted the jury to conclude that the “common objective or course of action” consisted of acts that were merely negligent.

J.T.T. and M.T. contend that the jury’s findings regarding a conspiracy are necessarily referable to Khuat’s sexual assaults and not the jury’s negligence findings. They contend that it was undisputed that Khuat committed sexual assault. While it was undisputed that Khuat committed sexual assault, it was not undisputed that the other defendants conspired to commit those sexual assaults. The jury also found that some defendants were negligent and that the negligence caused “the occurrence in question.” The charge permitted the jury to conclude that the “common objective or course of action” to which some of the defendants agreed was the same course of action on which the jury based its negligence findings.

In analyzing the sisters’ point of error regarding their conspiracy theory, the court of appeals strayed from the limited record that was before it and was diverted from the only issue regarding conspiracy. Instead of focusing on the charge and the jury’s findings, the court of appeals attempted to find evidence of a conspiracy. It did so even though no evidence was before the court and no complaint about the factual or legal sufficiency of the evidence had been made by any party. For example, the court of appeals said:

the jury can reasonably have inferred that the Theravada Buddhist Corporation, the Phap Luan Buddhist Culture Center, and abbot Chon Tri knew of Khuat’s propensity and intent to assault girls and women in the course of performing religious rituals, had a duty to prevent Khuat’s sexual assaults on the sisters, and knowingly participated in a conspiracy not to prevent such injuries, i.e., not to protect the sisters from Khu-at’s assaults, knowing that they were substantially likely to occur. The conspiracy here was thus not a conspiracy to commit negligence; it was a conspiracy not to prevent — and hence to further — Khuat’s criminal acts of sexual assault on the sisters, which the defendants had a duty to prevent and which they knew were substantially certain to result from their breaches of duty.

None of the “facts” recited by the court of appeals is in the limited appellate record. Nor was there any issue regarding any duty that the defendants owed to J.T.T. and M.T. with respect to the conspiracy claim.

At one juncture the court of appeals referred to what J.T.T. and M.T. had pleaded. Pleadings cannot support jury findings, and in any event, as we have seen, the sufficiency of the evidence to support the jury’s findings was not before the court. The only question was whether the jury made affirmative findings on each element necessary to establish a civil conspiracy.

B

As another basis for its conclusion that an actionable conspiracy had been found, the court of appeals reasoned that “by expressly granting the sisters’ motion for rendition of judgment on the verdict, and by expressly denying the defendants motions’ [sic] to disregard the jury’s findings and to render judgment notwithstanding the verdict, the trial court bound itself to render a judgment affording the sisters all of the relief to which they were entitled by the jury’s verdict.” We disagree. A trial court’s judgment is the final indication of what relief it granted or denied with regard to specific causes of action. The fact that a trial court may deny a motion for judgment notwithstanding the verdict does not mean that it is thereafter foreclosed from rendering a judgment that in fact disregards the verdict. A trial court may ultimately render the judgment it determines is required by the law and the facts as found by the factfinder as long as it retains its plenary power, notwithstanding its prior rulings.

But in any event, a sua sponte or sub silentio reversal of a prior ruling on a motion for judgment notwithstanding the verdict or motion to disregard the verdict was not what transpired in the trial court in this case. The trial court declined to set aside or disregard what the jury did find, as far as those findings went. But the trial court did not give any legal effect to the conspiracy-related findings because it was not required to. The findings omitted an element necessary for imposition of liability based on conspiracy.

The court of appeals erred in holding that the trial court was required to render judgment based on a cause of action for conspiracy. The court of appeals therefore erred in directing the trial court to impose joint and several liability based on a conspiracy theory.

Ill

The other issue before us is whether, in light of the charge and the jury’s findings, the trial court erred in failing to render judgment against Chon Tri in his individual capacity. The jury found that Chon Tri was negligent and apportioned his responsibility as 5%. The jury also found that the corporation of which he was an officer, Theravada Buddhist Corp., was negligent and that its responsibility was 5%. The trial court ruled that as a matter of law, Chon Tri was acting in the course and scope of his employment with that corporation. The trial court’s judgment imposed vicarious liability on the corporation for Chon Tri’s negligence, rendering judgment against it for 10% of the damages, but a take-nothing judgment was rendered in favor of Chon Tri.

J.T.T. and M.T. contend that the trial court was required to render judgment against Chon Tri individually. Chon Tri and Theravada Buddhist Corp. contend that (1) the trial court heard the evidence; (2) we should presume that it properly concluded that Chon Tri individually owed no duty to the sisters; and (3) the trial court therefore properly rendered a take-nothing judgment against Chon Tri.

The defendants are correct that a negligence finding against an individual does not automatically result in individual liability when the individual was acting as the agent or employee of a corporation. Corporations can, of course, only act through individuals. We explained in Leitch v. Hornsby when individual liability will be imposed and when it will not. “[IJndividual liability arises only when the officer or agent owes an independent duty of reasonable care to the injured party apart from the employer’s duty.” We gave as an example an agent whose negligence caused an automobile collision while the agent was driving in the course and scope of employment. An agent, in his individual capacity, owes a duty to the public to drive with reasonable care. Therefore, the individual is liable for his or her own negligence, and the employer is also vicariously liable. The situation in Leitch, however, was different. The corporate agents were not individually liable even though the jury had found them and their employer negligent. In that case, the plaintiff Hornsby was injured when he lifted a sixty-pound reel of cable. There was evidence that his employer, through its officers and employees, had declined to provide Hornsby a lifting belt or dolly. We held that the actions or inactions of the individuals were actions or inactions “within their capacities as officers” of Hornsby’s corporate employer and that the individuals “had no individual duty as corporate officers to provide Hornsby with a safe workplace.” The individuals were not liable for their negligence because they “did not breach any separate duty” to Hornsby. Only their corporate employer was liable for their negligence.

The existence of a legal duty is a question of law for the court to decide, and that determination is made “from the facts surrounding the occurrence in question.” In the present case, however, we have no facts before us. As already discussed, there is no record before us of what transpired at trial. We cannot determine whether Chon Tri breached a duty that he owed to J.T.T. and M.T. separate from the duty his employer, the Theravada Buddhist Corp., owed to them. It was incumbent on J.T.T. and M.T., as the appellants in the court of appeals, to bring forward a record demonstrating that the trial court erred in failing to impose individual liability on Chon Tri. We must presume that the trial court decided that Chon Tri did not owe a duty to the sisters separate and apart from that of his employer and that the facts support that determination because that presumption is in favor of the judgment the trial court rendered.

The court of appeals concluded that, in rendering a take-nothing judgment in favor of Chon Tri, the trial court effectively rendered a judgment notwithstanding the verdict. We disagree. The jury’s findings were not disturbed, set aside, or disregarded. Chon Tri was found negligent, and the trial court gave effect to that finding by holding Chon Tri’s employer liable for his negligence. The legal effect of the jury’s negligence finding against Chon Tri remained a matter to be determined by the court, not the factfinder.

J.T.T. and M.T. argue that Chon Tri and the Theravada Buddhist Corp. were required to assert a “no evidence” cross-point in the court of appeals. Again, we disagree. These defendants do not contend that the jury’s findings had no support in the evidence. They contend only that, accepting the jury’s findings at face value, the trial court did not err in rendering the judgment it did.

Because the record does not reflect that the trial court erred in failing to hold Chon Tri individually liable, the court of appeals erred in reversing the trial court’s judgment in that regard.

We hold that the limited record before us does not establish that the trial court erred. Accordingly, we reverse the court of appeals’ judgment, and the trial court’s judgment will therefore stand.

Justice BRISTER and Justice JOHNSON- did not participate in the decision.

      . Tex.R. Civ. P. 279.

      . See Tex.R.App. P. 34.6(b)(1) ("At or before the time for perfecting the appeal, the appellant must request in writing that the official reporter prepare the reporter’s record.”); id. 34.6(c)(1) ("If the appellant requests a partial reporter’s record, the appellant must include in the request a statement of the points or issues to be presented on appeal and will then be limited to those points or issues.”).

      . See id. 34.6(c)(2) ("Any other party may designate additional exhibits and portions of the testimony to be included in the reporter's record.”).

      . See id. 38.1(f) ("In a civil case, the court will accept as true the facts stated unless another party contradicts them.’’).

      . 111 S.W.3d 680, 684.

      . Id. at 687.

      . Id.

      . Juhl v. Airington, 936 S.W.2d 640, 644 (Tex.1996); Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 614 (Tex.1996); Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 719-20 (Tex.1995).

        . See Juhl, 936 S.W.2d at 644 (citing Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983)).

        . Id. at 644 ("Because negligence by definition is not an intentional wrong, one cannot agree or conspire to be negligent.”); Barajas, 927 S.W.2d at 617 ("Because a conspiracy requires intent, parties cannot conspire to be negligent."); Triplex, 900 S.W.2d at 720 n. 2 ("This definition is also erroneous because it permitted the jury to find that the parties conspired to be negligent.”).

      . 111 S.W.3d at 684 ("[W]e recognize that a conspiracy cannot be based on negligence.” (citing Triplex, 900 S.W.2d at 719-20 n. 2)).

      . Id.

      . Juhl, 936 S.W.2d at 644 (quoting Triplex, 900 S.W.2d at 719).

      . Tex.R. Civ. P. 279.

      . The defendants' joint motion to disregard the jury’s finding with respect to conspiracy is a part of the appellate record, and that motion recites that the defendants objected to the submission of the conspiracy issues. However, the defendants' objections are immaterial to our Rule 279 inquiry. The only pertinent question is whether J.T.T. and M.T. objected.

      . 111 S.W.3d at 685.

      . Id. at 684.

        . Id. at 686 (citing Townsend v. Catalina Ambulance Co., 857 S.W.2d 791, 798 (Tex.App.Corpus Christi 1993, no writ), and Mowery v. Fantastic Homes, Inc., 568 S.W.2d 171, 173 (Tex.Civ.App.Dallas 1978, no writ)).

      . 935 S.W.2d 114, 117 (Tex.1996).

      . Id.

      . Id.

      . Id.

      . Id. at 118.

      . Id.

      . Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170 (Tex.2004); Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex.2002) ("Whether a duty exists is a question of law for the court.”); SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 351 (Tex.1995) ("The existence of a legal duty is, of course, a question of law.”); Centeq Realty, Inc., v. Siegler, 899 S.W.2d 195, 197 (Tex.1995) ("The threshold inquiry in a negligence case is whether the defendant owes a legal duty to the plaintiff. ... The existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question.”); Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex.1994) ("Whether a legal duty exists under a set of facts is a question of law.”); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990) ("The threshold inquiry in a negligence case is duty- [T]he existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question.”); Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983).

      . Bird, 868 S.W.2d at 769.

      . 111 S.W.3d at 686-87.