Gaskey v. One Source Security and Sound
(Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Brown) (motor vehicle collision, school bus rear-
ender accident, negligence action, negligent entrustment, denial of motion for new trial after jury
verdict affirmed, factual sufficiency, legal sufficiency review on appeal)
e cannot say, having considered and weighed the complete record in this case,
that the jury's verdict was so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust.  See Mar. Overseas Corp., 971 S.W.2d at
407; 7979 Airport Garage, L.L.C., 245 S.W.3d at 499.  The trial court did not err
in denying Jed's motion for new trial.
AFFIRMED: Opinion by Justice Brown    
Before Chief Justice Hedges, Justices Guzman and Brown   
14-07-00850-CV  Jed Gaskey, Individually and as Next Friend of Cassandara Gaskey and Cassandra
Gaskey v. One Source Security and Found a/k/a One Source Security and Sound and Steven Green
Smith    
Appeal from 334th District Court of Harris County
Trial Court
Judge: Sharon McCally
Trial Court Cause No.  2004-60994
Affirmed and Memorandum Opinion filed June 18, 2009.


M E M O R A N D U M   O P I N I O N

Appellant Jed Gaskey, individually and as next friend of his daughter Cassandra Gaskey, appeals from
the trial court's denial of his motion for new trial after a jury's verdict against him.  Gaskey contends
that the trial court erred in denying him a new trial because (1) the jury's verdict was against the great
weight of the evidence, and (2) the evidence supporting the jury's verdict was legally insufficient.  

We affirm.

Facts

On October 30, 2002, Cassandra Gaskey, a fourteen-year-old student at Tomball Junior High School,
was riding home from school on a bus operated by the Tomball Independent School District.  As the
school bus stopped at an intersection, a Ford F-150 pickup struck it from the rear.  Appellee Steven
Green Smith was driving the truck, which was owned by appellee One Source Security and Sound
(“One Source").[1]  After the collision, Cassandra was taken to an area hospital, treated, and released
to her father.   Later she saw a series of doctors concerning neck pain and other health problems she
claims resulted from the collision.

In October 2004, Jed sued One Source, its owner C.T. Ashby, and Smith, seeking compensation for
Cassandra's injuries resulting from the collision.  His claims included allegations of both negligence
and gross negligence against Smith, and negligent entrustment against One Source and Ashby.  In
August 2006, Jed added the school district as a defendant, alleging that it had negligently entrusted its
bus to driver Elaine Overturff.  In September 2006, Jed non-suited Ashby.

The case was tried to a jury in June 2007.  During the trial, Jed agreed to non-suit Smith in return for
One Source's stipulation that he was acting in the course and scope of his employment at the time of
the collision.  The jury returned a verdict in favor of the appellees and Tomball I.S.D.  Jed filed a
motion for new trial.  The trial court denied Jed's motion, and this appeal followed.

Analysis

Jed Gaskey contends that the trial court erred in denying him a new trial because (1) the jury's verdict
was against the great weight of the evidence, and (2) the jury's verdict was supported by legally
insufficient evidence.

To prove negligence, a plaintiff must establish a duty, a breach of that duty, and damages proximately
caused by the breach.  Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam).  Proof
that the defendant's vehicle rear-ended the plaintiff's vehicle does not establish negligence as a
matter of law.  Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.- Houston [14th Dist.]
1989, writ denied); Till v.  Thomas, 10 S.W.3d 730, 733 (Tex. App.- Houston [1st Dist.] 1999, no pet.).  
The plaintiff still must prove both specific acts of negligence on the part of the defendant and that the
negligence proximately caused the plaintiff's damages.  Cent. Freight Lines, 774 S.W.2d at 412; Till,
10 S.W.3d at 733.

The jury charge in this case contained the following question:

Did the negligence, if any, of the persons named below proximately cause the injury in question?

Answer “Yes" or “No" for each of the following:

Steven Smith          ________

Elaine Overturff      ________

The jury answered “No" for both Smith and Overturff.  Jed insists that the evidence requires a
negligence finding against at least one of the two drivers.

A.      Legal Sufficiency

The test for legal sufficiency is whether the evidence at trial “would enable reasonable and fair-minded
people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005);
7979 Airport Garage, L.L.C. v.  Dollar Rent A Car Sys., Inc., 245 S.W.3d 488, 499 (Tex.  App.-
Houston [14th Dist.] 2007, pet. denied).  In making this determination, we must view the evidence in the
light most favorable to the verdict, crediting any favorable evidence if a reasonable fact‑finder could
and disregarding any contrary evidence unless a reasonable fact‑finder could not.  City of Keller, 168
S.W.3d at  827. We assume jurors made all inferences in favor of their verdict if reasonable minds
could, and disregard all other inferences.  Id. at 821.  We cannot substitute our judgment for that of
the jury, so long as the evidence falls within the zone of reasonable disagreement.  See id. at 822.  We
will sustain a legal-sufficiency challenge only when (1) the record discloses the complete absence of a
vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence
offered to prove a vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere
scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact.  Id. at 810.

Jed's legal-sufficiency challenge rests on his contention that “the evidence conclusively proves, as a
matter of law, that Smith was negligent to some degree."  Specifically, Jed states that several
statements Smith made during his trial testimony qualify as judicial admissions, compelling a jury
finding that Smith was negligent as a matter of law.  A judicial admission is a formal waiver of proof that
usually arises in the pleadings or a stipulation of the parties. Mendoza v. Fid. & Guar. Ins.
Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980).  Such an admission is conclusive upon the party
making it, relieves the opposing party's burden of proving the admitted fact, and bars the admitting
party from disputing it.  Id.   

Similarly, a party's testimonial declarations which are contrary to his position are quasi‑admissions.  Id.  
They are merely some evidence, and they are not conclusive upon the admitter.  Id.  The trier of fact
determines the weight to be given such admissions.  Id.  But as a matter of public policy, a party's
testimonial quasi‑admission will serve as a judicial admission if it appears that: (1) the declaration was
made during the course of a judicial proceeding; (2) the statement is contrary to an essential fact
embraced in the theory of recovery or defense asserted by the person giving the testimony; (3) the
statement is deliberate, clear, and unequivocal; (4) the giving of conclusive effect to the declaration will
be consistent with the public policy upon which the rule is based; and (5) the statement is not also
destructive of the opposing party's theory of recovery.  Id.  The public policy underlying this rule is that
it would be unjust to permit a party to prevail at trial after contradicting his theory of recovery or
defense by clear, unequivocal testimony.  Id.

Jed contends that Smith's trial testimony contained judicial admissions that: (1) he could have
prevented the accident; (2) he was partly at fault; and (3) he hit the bus because he was following it
too closely.  During his testimony, Smith agreed with Jed's trial counsel that the accident “could have
been avoided if [he had been] traveling slower and farther back from the bus."  He also testified, AI
was traveling a little too close, I guess," and AI think it was probably joint at fault."  These statements
appear to contradict Smith's defense that he was not negligent.  But Smith also testified repeatedly
that he was not speeding or in a hurry, and that he wasn't “tailgating the bus."  Instead, Smith
maintained that he had been traveling at about “three car-lengths" behind the bus.  He also testified
that the bus stopped suddenly and unexpectedly.  When we look, as we should, at the context and
totality of the statements Jed labels as judicial admissions, we cannot say that they were deliberate,
clear, and unequivocally contrary to his defense.[2]  See id.

As Jed is attacking the legal sufficiency of an adverse finding on an issue for which he had the burden
of proof, he must demonstrate on appeal that the evidence conclusively establishes all vital facts in
support of the issue.  Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); French v. Moore,
169 S.W.3d 1, 15 (Tex. App.- Houston [1st Dist.] 2004, no pet.).  Because he has not established that
Smith's testimony included judicial admissions, his legal-sufficiency argument fails.  We overrule the
first issue.

B.  Factual Sufficiency

In his second issue, Jed contends the trial court erred by overruling his motion for new trial because
the verdict was against the great weight of the evidence.  When considering a factual-sufficiency
challenge to a jury's verdict, we must review and weigh all the evidence, not just the evidence that
supports the verdict.  Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); 7979 Airport
Garage, L.L.C., 245 S.W.3d at 499.  After considering and weighing all the evidence, we set aside the
fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust.  See Mar. Overseas Corp., 971 S.W.2d at 407; 7979 Airport Garage, L.L.C., 245 S.W.3d
at 499.  We may not simply substitute our judgment for that of the jury; the jury is the sole judge of the
credibility of witnesses and the weight to be given their testimony.  Golden Eagle Archery, Inc. v.
Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Praise Tabernacle Outreach & Family Worship Ctr. v.
Restoration Fin. Group, Inc., No. 14‑06‑01055‑CV, 2008 WL 2884601, at *9 (Tex. App.- Houston [14th
Dist.] July 29, 2008, no pet.) (mem. op.).

Jed asserts that it is undisputed that Smith was operating his truck behind the school bus on a clear
day, and that, at some point, Smith's truck struck the bus from behind.  It necessarily follows, Jed
contends, that either the bus driver was negligent in stopping too suddenly, or that Smith was
negligent in failing to stop before colliding with the rear of the bus.  The option that Jed excludes is that
the jury may have simply believed he failed to prove by a preponderance of the evidence that either
driver was negligent.  See Klein v. Brown-Griffin Texaco Distribs., Inc., 562 S.W.2d 910, 911 (Tex. Civ.
App.- Amarillo 1978, writ ref'd n.r.e.) (stating that in a rear-end collision, A[i]t was uniquely within the
jury's province to determine whether plaintiff succeeded in proving negligence by a preponderance of
the evidence").  The mere occurrence of a rear-end accident does not establish negligence as a
matter of law.  Id. at 912; Cent. Freight Lines, 774 S.W.2d at 412.  And it is neither impossible nor
automatically invalid for a jury to determine that neither driver in a rear-end accident committed
negligence.  See, e.g., Ordonez v. M.W. McCurdy & Co., Inc., 984 S.W.2d 264, 271 (Tex. App.-
Houston [1st Dist.] 1998, no pet.); Cent. Freight Lines, 774 S.W.2d at 414; Page v. Pete Singh
Produce, Inc., 624 S.W.2d 674, 675 (Tex. App.- El Paso 1981, writ ref'd n.r.e.); Klein, 562 S.W.2d at
911-13.

Smith testified that before the collision, he was traveling about three car-lengths behind the bus at
about 35 miles per hour, well below the posted limit of 50.  He believed he had left enough space
between himself and the bus, and did not feel that he was tailgating it.  Overturff, the bus driver,
testified that Smith was about three seconds behind her.  Smith testified that when the light at the
intersection turned yellow, he believed the bus was going to go through it, but instead it came to a
sudden and unexpected stop.  Smith also testified that he thought he and Overturff were “joint[ly] at
fault," that he was following “a little too close," and that he could have avoided the accident had he not
been following so closely.

Jed offered evidence that the investigating officer found the cause of the accident to be Smith's failure
to control his speed, that Smith's tires left skid marks but the bus's did not, that the bus stopped before
entering the intersection and that the vehicle traveling behind Smith's truck did not rear-end it when
Smith stopped.

Smith impeached Cassandra at trial with her deposition testimony that Overturff had tried to run a red
light, but thought better of it and stopped quickly.  Smith also pointed out to the jury that Cassandra
told Dr. Stephen Esses, her treating physician:  “the bus driver tried to run a red light, and I was
pushed forward in my seat."  She did not mention Smith rear-ending the bus to Dr. Esses.

Central Freight Lines is particularly instructive in evaluating Jed's factual-sufficiency argument.  In that
case, also arising from a rear-end collision, the plaintiff claimed - just as Jed does in this case - that
the rear-ending vehicle “was following too closely."  774 S.W.2d at 412.  And the defendant in Central
Freight Lines, just like Smith does in this case, contended that the rear-ended vehicle had stopped
suddenly.  Id. at 413.  But there was conflicting evidence in Central Freight Lines, just as there is this
case, on these issues and others.  Id. at 414.  In the face of such conflicting evidence, the court in
Central Freight Lines determined that it must defer to the jury, “the sole judge of the credibility of the
witnesses and the weight to be given their testimony."  Id. at 414.

Jed points us to four cases in which the court of appeals determined that a jury's failure to find the
defendant negligent in an automobile collision was against the great weight of the evidence.[3]  
Chumley v. Barhorst, No. 01-03-01342-CV, 2005 WL 856887 (Tex. App.- Houston [1st Dist.] Apr. 14,
2005, no pet.) (mem. op.); Hardy v. Bianchi, No. 09-00-121-CV, 2000 WL 1677943 (Tex. App.-
Beaumont Nov. 9, 2000, no pet.) (per curiam) (not designated for publication); Moore v. State Farm
Mut.  Auto. Ins. Co., 792 S.W.2d 818 (Tex. App.- Houston [1st Dist.] 1990, no writ); Priest v. Myers, 598
S.W.2d 359 (Tex. Civ. App.- Houston [14th Dist.] 1980, no writ).  But in none of these cases was there
any allegation that the accident was caused by anything other than a single defendant's negligence.  
The juries in these cases did not face what the juries in Central Freight Lines and this case faced -
conflicting evidence about whether the accident was caused by one driver as opposed to the other.  
When so faced, nothing prohibits a jury from deciding that the plaintiff had failed to prove by a
preponderance of the evidence that either driver was negligent.  See Klein, 562 S.W.2d at 911.

Because we may not substitute our own judgment for that of the trier of fact, even if a different answer
could be reached on the evidence, Mayes v. Stewart, 11 S.W.3d 440, 451 (Tex. App.- Houston [14th
Dist.] 2000, pet. denied), we do the same in this case as the court did in Central Freight Lines.  “After
reviewing the evidence in accordance with the standards previously set forth," we find it factually
sufficient to support the jury's findings.  Cent. Freight Lines, 774 S.W.2d at 415.

We cannot say, having considered and weighed the complete record in this case, that the jury's verdict
was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  See
Mar. Overseas Corp., 971 S.W.2d at 407; 7979 Airport Garage, L.L.C., 245 S.W.3d at 499.  The trial
court did not err in denying Jed's motion for new trial.  We overrule Jed's second issue, and affirm the
judgment.

/s/      Jeff Brown

Justice

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

[1]  Smith's employer is referred to as “One Source Security and Found" in the case style of the
Gaskeys' amended petition, the trial court's final judgment, the Gaskeys' motion for new trial, and in
both parties' briefs on appeal.  But the same party is referred to as “One Source Security and Sound"
in the case style on the notice of appeal, and in the “Identification of Parties and Counsel" in the
appellees' brief.  We interpret this distinction as merely a typographical error that was uncorrected
throughout most of the record, until the notice of appeal.

[2]  In pressing this issue, Jed relies on Phillips v. Bramlett, 258 S.W.3d 158 (Tex. App.- Amarillo 2007),
rev'd on other grounds, 52 Tex. Sup. Ct. J. 422, 2009 WL 567889 (Tex. Mar. 6, 2009).  In Phillips, the
court highlighted the fact that because the defendant-witness made the same admission twice, there
was no chance that it was just an inadvertent slip of the tongue.  Id. at 168.  But in this case, instead of
reconfirming the alleged admissions, Smith contradicted some and qualified others.

[3]  We have reviewed each of the cases the parties have cited to us in spite of the perhaps wise
advice of then Chief Justice Tunks of this court that A[i]n automobile collision cases a review of other
opinions usually is of little help in determining the issues of liability" because “[t]he facts of each case
are different from those of any other case."  Jordan v. Walker, 448 S.W.2d 837, 842 (Tex. Civ. App.-
Houston [14th Dist.] 1969, writ ref'd n.r.e.).