Roger Landry, Kenneth Porter and Q.A. Services, L.L.C. v. Phillip Currie and Charlotte Currie

Court of Appeals
Tenth Appellate District of Texas

10-23-00346-CV

Roger Landry, Kenneth Porter and Q.A. Services, L.L.C.,
Appellants

v.

Philip Currie and Charlotte Currie,
Appellees

On appeal from the
77th District Court of Limestone County, Texas
Judge Pat Simmons, presiding
Trial Court Cause No. 31883-A

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

After being injured in a motor vehicle accident, Philip and Charlotte

Currie filed suit against Roger Landry, Kenneth Porter, and Q.A. Services,

L.L.C. The Curries alleged negligence and gross negligence claims against

Landry, a negligent entrustment claim against Porter, and claims of

respondeat superior and negligent supervision, training, and retention,

against Q.A. The jury found that Landry was acting in the scope of his
employment with Q.A. and that the negligence of Landry, Porter, and Q.A.

proximately caused the occurrence in question. The jury apportioned

responsibility as 30% for Landry, 20% for Porter, and 50% for Q.A. The jury

awarded Charlotte $34,888,255.00 in damages, Philip $5,746,547.00 in

damages, and $806,400.00 in punitive damages against Landry to be shared

equally by Charlotte and Philip. The trial court entered judgment on the jury

verdict.

After entering judgment, the trial court signed a suggestion of remittitur

reducing Charlotte’s damage award to $9,299,555.00 and Philip’s damage

award to $5,242,285.00. Charlotte and Philip accepted the remittitur. This

appeal followed. 1

Issues on Appeal

Porter and Q.A. together raise six issues on appeal: (1) the evidence is

legally and factually insufficient to support the jury’s negligent entrustment

finding against Porter, (2) the Curries sought and obtained submission of an

improper negligence theory against Q.A., (3) the evidence is legally and

factually insufficient to support the jury’s finding that Landry was acting in

the scope of his employment with Q.A., (4) the evidence is legally and factually

insufficient to support the jury’s negligence finding against Q.A., (5) the entire

1
Philip and Charlotte filed Notice of Cross-Appeal on November 15, 2023, and on December 1, 2023, they filed an
Unopposed Motion to Voluntarily Dismiss Cross-Appeal. That motion is granted.

Landry v. Currie Page 2
judgment should be reversed and remanded for a new trial in the event this

Court sustains Issues 2, 3, and/or 4, and (6) the evidence is legally and factually

insufficient to support the damages awarded to the Curries.

Landry argues on appeal that (1) the evidence is legally and factually

insufficient to support the noneconomic damages awarded to Charlotte and

Philip, and (2) because the evidence is insufficient to support the noneconomic

damages, the jury’s exemplary damages award should be reversed. We modify

the judgment and affirm as modified.

Background

Porter is a co-owner of Q.A, a company that builds cellular phone towers

at various locations. Porter owned several trucks that were driven to the

jobsites by Q.A. employees, and the “company yard” was located at his

residence. Landry, a former employee of Q.A., traveled to the jobsites where

he helped build the cellular phone towers. Landry was authorized to drive

Porter’s vehicles for Q.A., and in December 2019, he drove to a jobsite near

Canadian, Texas.

While at the jobsite, Landry became ill and went to a local hospital.

After not being able to work for two days, Landry contacted Porter and asked

if he could return home because he was unable to perform his job requirements.

Porter sent another employee to the jobsite and allowed Landry to return

home. Landry left the jobsite in Porter’s vehicle, and he planned to return the

Landry v. Currie Page 3
vehicle to the company yard where his girlfriend would meet him and take him

home.

Landry admitted that he had smoked marijuana the night before he

drove home and that he had consumed alcohol on the drive home. At an

intersection in Limestone County, Landry ran through a stop sign and collided

with the Currie’s pickup. After the accident, Landry gave a blood sample that

revealed a blood alcohol content of 0.114 and also detected marijuana. Landry

was convicted of intoxication assault and sentenced to seven years

confinement.

The Currie’s had extensive injuries from the collision. Charlotte suffered

an aortic rupture that was life threatening as well as a significant abdominal

injury that caused severe damage to her large and small intestines. Charlotte

also had rib fractures and contusions to both of her kidneys. Charlotte

remained in a medically induced coma for approximately one month. After

being released from the hospital and a rehabilitation center, Charlotte went to

live with her daughter because she could not care for herself. Charlotte

continued to live with her daughter at the time of trial.

Philip suffered a severe fracture of his arm that caused a blood clot to

form in the major artery supplying blood to the arm. Because of his trauma

and injuries, Philip had a stroke that resulted in a loss of his peripheral vision.

Philip also had rib fractures and a severe laceration to his tongue. After being

Landry v. Currie Page 4
released from the hospital, Philip went to live with his sister because he could

not care for himself. He eventually moved back to his home, and his brother

moved in to help care for him.

Porter and Q.A.’s Issue One

Porter and Q.A. argue in the first issue that the evidence is legally and

factually insufficient to support the jury’s negligent entrustment finding

against Porter.

Standards of Review and Applicable Law

Legal Sufficiency

When a party challenges the legal sufficiency of an adverse finding on an

issue on which they did not have the burden of proof, the party must

demonstrate on appeal that no evidence supports the adverse finding.

Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). Evidence is viewed in

the light most favorable to the verdict. City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex. 2005). Anything more than a scintilla of evidence is legally

sufficient to support the finding. See Cont’l Coffee Prods. Co. v. Cazarez, 937

S.W.2d 444, 450 (Tex. 1996).

Factual Sufficiency

In a factual-sufficiency review, we consider all of the evidence in the

record in a neutral light and set aside the jury’s verdict only if it is so contrary

Landry v. Currie Page 5
to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see Republic Petroleum v.

Dynamic Offshore Res. NS LLC, 474 S.W.3d 424, 433 (Tex. App.—Houston [1st

Dist.] 2015, pet. denied). Jurors are entitled to resolve inconsistencies in

witness testimony, whether those inconsistencies result from the contradictory

accounts of multiple witnesses or from internal contradictions in the testimony

of a single witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986);

see Republic Petroleum, 474 S.W.3d at 433.

Negligent Entrustment

The elements of negligent entrustment are: (1) entrustment of a vehicle

by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the

owner knew or should have known to be unlicensed, incompetent, or reckless;

(4) who was negligent on the occasion in question; (5) and whose negligence

proximately caused the accident. Schneider v. Esperanza Transmission Co.,

744 S.W.2d 595, 596 (Tex. 1987) (internal citations omitted). For entrustment

to be a proximate cause, the defendant entrustor should be shown to be

reasonably able to anticipate that an injury would result as a natural and

probable consequence of the entrustment. Schneider, 744 S.W.2d at 596.

Discussion

When Landry was hired in December 2018, Q.A. checked his driving

record, and it was “clean.” Porter stated that as of June 2019, Landry did not

Landry v. Currie Page 6
have any driving convictions and was cleared by the insurance company to

drive his vehicles.

In July 2019, Landry was arrested for public intoxication and resisting

arrest. He was not working for Q.A. on the day of his arrest, and he was not

at a jobsite. The record shows that Porter was aware of that arrest. On

September 19, 2019, Landry was arrested for driving while intoxicated. Again,

Landry was not working at the time and was not at a jobsite. Landry was

convicted of driving while intoxicated, but his driver’s license was not

suspended. The record shows that Porter was aware of Landry’s arrest and

instructed him not to drink alcohol in any of his trucks or take any of his trucks

to a bar. There is no evidence that Landry had any prior accidents or driving

infractions while operating Porter’s vehicles.

There is no dispute that Porter entrusted his vehicle to Landry, that

Landry was negligent on the occasion in question, and that Landry’s negligence

was the proximate cause of the accident. The parties dispute whether Landry

was a reckless driver and whether Porter knew or should have known that

Landry was a reckless driver.

Porter cites Allways Auto Group, Ltd., v. Walters in support of his

argument that the evidence does not support the jury’s finding on negligent

entrustment. 530 S.W.3d 147 (Tex. 2017) (per curiam). In Allways, an auto

dealer, Allways Auto Group, provided a loaner vehicle to Heyden, who had

Landry v. Currie Page 7
prior arrests for driving while intoxicated and did not have a valid driver’s

license at the time of the entrustment. Id. at 148. Heyden admitted that he

was intoxicated at the time of the entrustment, but the salesperson did not

observe any obvious signs of intoxication. Id. Eighteen days after Allways

provided the vehicle to Heyden, he had an accident in the loaner vehicle that

injured another person. Id. at 147. Heyden was intoxicated at the time of the

accident and was convicted of intoxication assault and driving while

intoxicated. Id. at 148.

The Court held that Allways established that its providing Heyden a

loaner car was not a proximate cause of his injuring the other party eighteen

days later. Id. at 149. The Court stated, “[f]or entrustment to be a proximate

cause, the defendant entrustor should be shown to be reasonably able to

anticipate that an injury would result as a natural and probable consequence

of the entrustment.” Id. at 148 (citing Schneider, 744 S.W.2d at 596). The

Court noted that if Heyden were visibly intoxicated when he got the loaner

vehicle, Allways could reasonably have anticipated he might have a wreck

before he sobered up, but that Allways could not have foreseen that Heyden

would get drunk eighteen days later and have an accident. Id. at 148-49.

Unlike Allways, there is evidence to support a finding that Landry was

a reckless driver and that Porter knew or should have known that Landry was

a reckless driver. See Schneider, 744 S.W.2d at 596. Recklessness is defined

Landry v. Currie Page 8
as an act that the operator knew or should have known posed a high degree of

risk of serious injury. See 4Front Engineered Solutions, Inc., v. Rosales, 505

S.W.3d 905, 911 (Tex. 2016) (citing City of Amarillo v. Martin, 971 S.W.2d 426,

430 (Tex. 1998)). There is no dispute that Landry was driving while

intoxicated at the time of the collision with the Curries. Landry arrest for

driving while intoxicated was approximately three months before the collision

with the Curries. After his arrest, Landry was instructed by Porter not to

drink in any of Porter’s vehicles, but he ignored that instruction. Evidence of

a driver’s prior arrest for driving while intoxicated support a jury’s finding that

a driver was reckless. See Atlantic Indus., Inc. v. Blair, 457 S.W.3d 511, 518

(Tex. App.—El Paso 2014), reversed on other grounds, 482 S.W.3d 57 (Tex.

2016) (per curiam).

There was evidence that Porter knew or should have known that Landry

was a reckless driver. Unlike other negligent entrustment cases where the

reckless driving record was discoverable through background checks, Porter

was personally aware of Landry’s reckless behavior. Six months prior to the

collision with the Curries, when Landry was arrested for public intoxication,

Porter bailed him out of jail. Porter acknowledged that he bailed Landry out

of jail because Landry “had the keys to my truck in his pocket.” Three months

prior to the collision with the Curries, Landry was arrested for driving while

intoxicated before going to a remote job site. Porter again got Landry out of

Landry v. Currie Page 9
jail after that arrest. According to Porter, when he went to pick him up from

jail, Landry was “still too drunk to be released so they held him another day.”

Porter admitted that at the time he entrusted his vehicle to Landry, he

knew that Landry was an alcoholic. He also admitted that he knew Landry

had a propensity to get drunk at remote job sites as well as other places.

Viewing all of the evidence in the light most favorable to the verdict, we

conclude that there was more than a scintilla of evidence to support the finding

on negligent entrustment. See Pesina v. Hudson, 132 S.W.3d 133, 139 (Tex.

App.—Amarillo 2004, no pet.). In addition, viewing all of the evidence in a

neutral light, the finding is not so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust. We overrule Porter and Q.A.’s first

issue.

Porter and Q.A.’s Issues Two, Three, and Four

In the second issue, Porter and Q.A. argue that the trial court submitted

an improper negligence theory to the jury. In the third issue, they contend

that the evidence is legally and factually insufficient to support the jury’s

finding that Landry was acting in the scope of his employment with Q.A. In

the fourth issue, they argue that the evidence is legally and factually

insufficient to support the negligence findings against Q.A.

Standard of Review and Applicable Law

Landry v. Currie Page 10
A trial court must submit jury questions, instructions, and definitions

that “are raised by the written pleadings and the evidence.” Tex. R. Civ. P.

278; United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 469 (Tex. 2017). In

reviewing alleged error in a jury submission, we consider “the pleadings of the

parties and the nature of the case, the evidence presented at trial, and the

charge in its entirety.” United Scaffolding, 537 S.W.3d at 469 (quoting

Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex.

2009)). The alleged charge error “will be deemed reversible only if, when

viewed in the light of the totality of these circumstances, it amounted to such

a denial of the rights of the complaining party as was reasonably calculated

and probably did cause the rendition of an improper judgment.” United

Scaffolding, 537 S.W.3d at 469 (quoting Island Recreational Dev. Corp. v.

Republic of Tex. Sav. Ass’n, 710 S.W.2d 551. 555 (Tex. 1986)).

Negligent Hiring, Supervision, or Retention

To successfully prosecute a claim of negligent hiring, supervision, or

retention, a plaintiff is required to show that (1) the employer owed a legal

duty to protect third parties from the employee’s actions, and (2) the third

party sustained damages proximately caused by the employer’s breach of that

legal duty. Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 655 (Tex.

App.—Dallas 2002, pet. den’d); see also Houser v. Smith, 968 S.W.2d 542, 544

(Tex. App.—Austin 1998, no pet.).

Landry v. Currie Page 11
Respondeat Superior

Under the doctrine of respondeat superior, an employer is responsible

for the negligence of an employee acting within the course and scope of his

employment, even though the employer has not personally committed a wrong.

Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). To

prove an employer’s vicarious liability for a worker’s negligence, the plaintiff

must show that, at the time of the negligent conduct, the worker (1) was an

employee and (2) was acting in the course and scope of his employment.

Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018).

To prove that an employee acted within the course and scope of

employment, a plaintiff must show that the act was (1) within the general

authority given to the employee, (2) in furtherance of the employer’s business,

and (3) for the accomplishment of the object for which the employee was

employed. Mejia-Rosa v. John Moore Servs., Inc., No. 01-17-00955-CV, 2019

WL 3330972, at *6 (Tex. App.—Houston [1st Dist.] July 25, 2019, no pet.)

(mem. op); Green v. Ransor, Inc., 175 S.W.3d 513, 516 (Tex. App.—Fort Worth

2005, no pet.).

Discussion

In their pleadings, the Curries alleged claims of respondeat superior and

negligence, including negligent supervision, training, and retention, against

Q.A. In the charge, Question 1 asked whether Landry was acting within the

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scope of his employment with Q.A. The jury answered “yes.” Question 2 asked

whether the negligence, if any of Landry, Porter, and Q.A. proximately caused

the occurrence in question. The jury responded yes as to each of the named

parties. The charge included the definition of negligent entrustment in

relation to the negligence claim against Porter. The charge did not contain any

definitions or instructions as to negligent supervision, training, and retention

as to Q.A.

The record shows that the Curries proposed jury charge requested an

instruction that:

An employer has a general duty to adequately hire, train, and
supervise its employees. An employer owes a duty to its other
employees and to the general public to ascertain the qualifications
and competence of the employees it hires, especially when the
employees are engaged in occupations that require skill or
experience that could be hazardous to the safety of others.

The trial court did not give the requested instruction.

Q.A. contends that the trial court’s instruction on negligence was

improper as to Q.A. because it only included a general negligence theory rather

than negligent supervision, training, and retention. Q.A. cites United

Scaffolding v. Levine as authority. 537 S.W. at 469.

In United Scaffolding, Levine, a pipefitter for Valero Energy

Corporation, brought suit against United Scaffolding, a contractor, after he

was injured on scaffolding constructed by United Scaffolding. Id. at 467.

Landry v. Currie Page 13
Levine alleged that United Scaffolding improperly constructed the scaffold and

failed to remedy or warn of the dangerous condition on the scaffold, causing

his injury. Id. at 468. The trial court submitted a general negligence question

to the jury, and the jury found United Scaffolding negligent. In its motion for

new trial and a motion for judgment notwithstanding the verdict, United

Scaffolding asserted for the first time that the trial court improperly submitted

a general negligence question to the jury when Levine’s claim sounded in

premises liability, and the trial court denied the motions. Id.

United Scaffolding argued on appeal that Levine’s claim was improperly

submitted as a general negligence theory. Id. The Court stated that negligence

and premises liability claims are separate and distinct theories of recovery,

requiring plaintiffs to prove different, albeit similar, elements to secure

judgment in their favor. Id. at 471. The Court explained that generally, a

plaintiff need only submit a general negligence question in support of a claim

for a defendant’s liability pursuant to a negligent activity theory. Id. However,

in a premises liability claim, the plaintiff must prove additional elements. See

id. Therefore, the Court concluded that when submitting a premises liability

cause of action to a jury, a general negligence question, unaccompanied by the

additional elements as instructions or definitions, cannot support a recovery

for premises liability. Id. at 472. The Court determined that based upon the

source of Levine’s injury, his pleadings, and the evidence presented at trial,

Landry v. Currie Page 14
Levine’s case sounded in premises liability. Id. at 479. The theory of recovery

submitted to the jury did not reflect the claim that was raised by the pleading

and the evidence. Id. at 480.

The Court held that because the case was submitted to the jury under

only a general negligence theory, without the elements of premises liability as

instructions or definitions, the verdict could not support a recovery for

premises defect. Id. at 480-81. The Court further held that Levine waived his

premises liability claim because he did not obtain findings on the premises

liability elements. Id. at 481.

Q.A. maintains that because the Curries did not obtain a jury submission

on their negligent supervision, training, and retention theories, the verdict was

rendered on a theory upon which relief cannot be granted against Q.A. The

Curries respond that United Scaffolding is not applicable because unlike

negligence and premises liability claims, which are distinct and separate

theories of recovery, negligence and negligent supervision, training, and

retention are not separate theories of recovery. However, where only ordinary

negligence is alleged, case law supports the contention that negligent hiring or

negligent entrustment and respondeat superior are mutually exclusive modes

of recovery. Rosell, 89 S.W.3d at 654; Estate of Arrington v. Fields, 578 S.W.2d

173, 178 (Tex. Civ. App.—Tyler 1979, writ ref’d n.r.e.).

Landry v. Currie Page 15
In Rossell, a bus driver for Central West Motor Stages struck and killed

Rossel, who was assisting another injured motorist. Id. at 649. Rossell’s estate

brought suit against the injured motorist, the bus driver, and Central West

Motor Stages. Id. The first question to the jury asked if the negligence of the

bus driver, the injured motorist, or Rossell proximately caused the occurrence.

Id. at 653. Rossell’s estate complained that Central West should have been

included in the first question. Central West stipulated that the bus driver was

acting within the scope of his employment. Id. at 654. The trial court

submitted a separate question on Central West’s liability for negligent

entrustment, hiring, supervision, and retention. Id. at 655-56. Rossell’s estate

complained on appeal that Central West should have been included in the first

general negligence question as well. Id. at 653.

The court noted that Rossell’s estate proposed several theories under

which Central West was liable including negligent entrustment and negligent

supervision, training, and retention. Id. at 655. The court stated that while

the theories were similar, they had different requirements. Id. The court

explained that to successfully prosecute a claim of negligent hiring,

supervision, or retention, a plaintiff is required to show that (1) the employer

owed a legal duty to protect third parties from the employee’s actions, and (2)

the third party sustained damages proximately caused by the employer’s

breach of that legal duty. Id.

Landry v. Currie Page 16
The court reasoned that there was no need to include Central West in

the general negligence liability question because there was a separate question

on Central West’s negligence. Id. at 656. The court determined that the trial

court did not abuse its discretion in submitting a separate liability issue for

Central West. Id.

We find the reasoning in Rossell to be instructive. The Curries’ pleadings

alleged claims for negligent hiring, supervision, or retention, and they

submitted evidence at trial in support of those claims. Unlike the charge before

us, in Rossell, the trial court submitted a separate question on the employer’s

liability. The court determined that negligent hiring, supervision, or retention

are mutually exclusive modes of recovery than that of general negligence with

different proof requirements. Id. at 654-55. The court found that the trial

court correctly submitted a separate question on the employer’s liability. Id.

at 656. We agree that general negligence and negligent hiring, supervision, or

retention are mutually exclusive modes of recovery than that of general

negligence with different proof requirements. See Id. at 654-55.

The Currie’s pleadings and the evidence at trial alleged a claim for

negligent hiring, supervision, or retention. Because negligent hiring,

supervision, or retention requires additional proof requirements than general

negligence, a general negligence question, unaccompanied by the additional

elements as instructions or definitions, cannot support a recovery for negligent

Landry v. Currie Page 17
hiring, supervision, or retention. See United Scaffolding, 537 S.W.463 at 472.

Therefore, we agree that the trial court erred by submitting a general

negligence theory against Q.A. without the additional proof requirements of

negligent hiring, supervision, or retention as instructions or definitions. See

Id. at 480-81.

The Curries contend that Q.A. did not object to the charge, and,

therefore, did not preserve the argument for review. A defendant has no

obligation to complain about a plaintiff’s omission of an independent theory of

recovery; rather, the burden to secure proper findings to support that theory of

recovery is on the plaintiff, and a plaintiff who fails to satisfy that burden

waives that claim. TEX. R. CIV. P. 279; United Scaffolding, 537 S.W.463 at 481.

Therefore, Q.A. was not required to object to the omission of the instruction on

negligent hiring, supervision, or retention. See United Scaffolding, 537

S.W.463 at 481. We sustain Porter and Q.A.’s second issue. Because we hold

that the trial court improperly submitted a general negligence question, we

need not address Porter and Q.A.’s fourth issue arguing that the evidence was

legally and factually insufficient to support the jury’s finding on Q.A.’s

negligence. See Tex. R. App. P. 47.1.

In United Scaffolding, the plaintiff did not have another basis of

recovery, and the Court rendered a take-nothing judgment in United

Scaffolding’s favor. Id. at 481, 483. While the Curries cannot recover on their

Landry v. Currie Page 18
claims of negligent hiring, supervision, or retention, unlike United Scaffolding,

they have a remaining basis of recovery on their claim of respondeat superior.

In the third issue, Porter and Q.A. argue that the evidence is legally and

factually insufficient to support the jury’s finding that Landry was acting

within the scope of his employment with Q.A. To prove that an employee acted

within the course and scope of employment, the Curries must show that

Landry was acting (1) within the general authority given to him, (2) in

furtherance of Q.A.’s business, and (3) for the accomplishment of the object for

which Landry was employed. See Means v. Property Management Contractors,

LLC, No. 01-21-00415-CV, 2023 WL 138620 at *5 (Tex. App.—Houston [1st

Dist.] Jan. 10, 2023, no pet.) (mem. op).

Because Landry was authorized to drive Porter’s trucks for Q.A., he was

acting within the general authority given to him. The question before us is

whether Landry was acting in furtherance of Q.A.’s business for the

accomplishment of the object for which he was employed. See id.

Porter owned the trucks used by Q.A. employees for Q.A.’s business. The

record shows that Q.A. employees, including Landry, would drive the trucks

from the company yard at Porter’s residence to the jobsites and return the

trucks to the company yard. Porter agreed that once a truck left the company

yard to go to a jobsite, that truck was being used for Q.A. business. He further

Landry v. Currie Page 19
agreed that employees expected to be paid for their time driving the trucks to

jobsites.

Landry testified that driving to and from job sites was part of his job

requirement and that he was compensated for driving to and from the jobsites.

Landry became ill at the jobsite and wanted to return home. According to

Landry, he was informed that in order to return home, he would have to drive

one of Porter’s trucks back to the yard. If Landry did not drive one of Porter’s

trucks back, a truck would be left at the remote jobsite because there would be

more trucks than drivers. Landry did not live near the company yard. He

intended to return Porter’s truck to the company yard as instructed, and have

his girlfriend pick him up there so that he could return home. Landry believed

he would be paid for driving the truck from the jobsite to the company yard.

Landry was acting in furtherance of Q.A.’s business for the

accomplishment of his work for Q.A. at the time of the collision. Landry was

returning the truck to the company yard so that it would not be left at the

jobsite. Porter agreed that when a truck left the company yard, it was for Q.A.

business. There is nothing in the record to show that Landry was ever allowed

to drive one of Porter’s trucks to his home. The trucks left from the company

yard to go to the jobsites and were returned to the company yard. Even though

Landry was leaving the jobsite because he was ill, he was still required to

return the truck to the company yard. He was not authorized to take the truck

Landry v. Currie Page 20
to his house, which was many miles away. Therefore, the “coming and going”

rule is not applicable. See Orozco v. County of El Paso, 602 S.W.3d 389, 396

(Tex. 2020). Moreover, because Porter paid for the transportation and

controlled its use, the “coming and going” rule would not exclude Landry’s

return trip to the company yard from the course and scope of his employment.

See id. Viewing all of the evidence in the light most favorable to the verdict,

we conclude that there was more than a scintilla of evidence to support the

finding that Landry was acting in the course and scope of his employment. In

addition, viewing all of the evidence in a neutral light, the finding is not so

contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. Accordingly, we overrule Porter and Q.A.’s third issue.

In summary, the evidence is legally and factually sufficient to support

the jury’s findings against Porter for negligent entrustment. The Curries

cannot recover on their negligence claims against Q.A. because trial court

erroneously submitted a general negligence theory against Q.A. without the

additional proof requirements of negligent hiring, supervision, or retention as

instructions or definitions. However, the evidence is legally and factually

sufficient to support the jury’s finding that Landry was acting in the course

and scope of his employment, and that supports the trial court’s judgment

against Q.A. See Boatland of Houston, Inc., v. Bailey, 609 S.W.2d 743, 750

(Tex. 1980). While we sustain Porter and Q.A.’s second issue, we need not

Landry v. Currie Page 21
reverse the entire judgment. The judgment did not expressly tie the damage

award against Q.A. to a specific negligence finding. Therefore, we overrule

Porter and Q.A.’s fifth issue.

Porter and Q.A.’s Issue Six and Landry’s Issues One and Two

In their sixth issue, Porter and Q.A. argue that the evidence is legally

and factually insufficient to support the damages as remitted. They

specifically challenge the damages awarded for Philip and Charlotte’s past and

future physical pain and mental anguish, Charlote’s future physical and

mental impairment, and Philip’s future physical impairment.

Landry does not dispute that his negligence proximately caused the

collision with the Curries. He further does not dispute that Philip and

Charlotte suffered damages proximately caused by his negligence. He only

disputes the amount of some of the damages awarded. In his first issue,

Landry argues that the evidence is legally and factually insufficient to support

the noneconomic damages awarded in the judgment. In the second issue, he

contends that because the evidence is insufficient to support the noneconomic

damages, the jury’s exemplary damages award should be reversed.

Standard of Review and Applicable Law

“Noneconomic damages” are damages awarded:

Landry v. Currie Page 22
for the purpose of compensating a claimant for physical pain and
suffering, mental or emotional pain or anguish, loss of consortium,
disfigurement, physical impairment, loss of companionship and
society, inconvenience, loss of enjoyment of life, injury to
reputation, and all other nonpecuniary losses of any kind other
than exemplary damages.

TEX. CIV. PRAC. & REM. CODE ANN. § 41.001 (12).

An excessive damages complaint is a challenge to the factual sufficiency

of the evidence supporting the damages award. See Anderson v. Durant, 550

S.W.3d 605, 620 & n.66 (Tex. 2018); Maritime Overseas Corp. v. Ellis, 971

S.W.2d 402, 406 (Tex. 1998); Team Industrial Servs, Inc., v. Most, 711 S.W.3d

31, 57 (Tex. App.—Houston [1st Dist.] 2024, no pet.). When a party attacks

the factual sufficiency of an adverse finding on an issue on which it did not the

burden of proof at trial, it must demonstrate that the adverse finding is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and

manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Team

Industrial, 711 S.W.3d at 57.

A jury has great discretion in awarding damages, and we give deference

to the jury findings on damages. See Herchman v. Lee, No. 02-22-00217-CV,

2024 WL 4898787, at *7 (Tex. App.—Fort Worth Nov. 27, 2024, pet. den’d)

(mem. op). “Assigning a dollar value to non-financial, emotional injuries such

as mental anguish ... will never be a matter of mathematical precision,” and

we review an award for noneconomic damages with this firmly in mind. Id.

Landry v. Currie Page 23
(quoting Gregory v. Chohan, 670 S.W.3d 546, 550 (Tex. 2023)) (plurality op).

Although the amount of a noneconomic damages award is “uniquely within the

factfinder’s discretion,” the award must still “fairly and reasonably

compensate” for the plaintiff’s injury based on the evidence presented. Bennett

v. Grant, 525 S.W.3d 642, 648 (Tex. 2017); Golden Eagle Archery, 116 S.W.3d

at 772–73; Herchman, 2024 WL 4898787, at *7. We must reverse the jury’s

award if it is so against the great weight and preponderance of the evidence as

to be manifestly unjust. Golden Eagle Archery, 116 S.W.3d at 772–73.

Herchman, 2024 WL 4898787, at *7.

In Gregory, a plurality of the Court proposed a new standard for

reviewing noneconomic damage awards requiring a “rational connection,

grounded in the evidence, between the injuries suffered and the dollar amount

awarded.” Herchman, 2024 WL 4898787, at *7 n. 8 (quoting Gregory, 670

S.W.3d at 550-51). Because it is a plurality opinion, the proposed standard is

not binding precedent. See Gregory, 670 S.W.3d at 549. Although Gregory is

a nonbinding plurality opinion, the justices all agreed that, when deciding on

the amount of damages to award, the jury should consider the nature,

duration, and severity of the claimant’s loss. Garza v. Escamilla, 712 S.W.3d

718, 727 (Tex. App.—Houston [14th Dist.] 2025, no pet.) (citing Gregory, 670

S.W.3d at 557, 570–71). They agreed that the amount decided should not be

Landry v. Currie Page 24
based on mere passion or prejudice or improper motivations. Garza, 712

S.W.3d at 727. Id. at 564 n.16, 570, 576.

Discussion

In relevant part, Question 4 asked the jury what sum of money would

fairly and reasonably compensate Philip for his injuries that resulted from the

occurrence in question as follows:

1. Physical pain and mental anguish sustained in the past.
ANSWER: 1,062,720.00

2. Physical pain and mental anguish that, in reasonable
probability, Philip Currie will sustain in the future.
ANSWER: 1,555,200.00

3. Physical impairment sustained in the past.
ANSWER: 100,000.00

4. Physical impairment that, in reasonable probability, Philip
Currie will sustain in the future.
ANSWER: 585,365.00

5. Disfigurement sustained in the past.
ANSWER: 50,000.00

6. Disfigurement that, in reasonable probability, Philip Currie will
sustain in the future.
ANSWER: 50,000.00

In relevant part, Question 5 asked the jury what sum of money would fairly

and reasonably compensate Charlotte for her injuries that resulted from the

occurrence in question as follows:

1. Physical pain and mental anguish sustained in the past.
ANSWER: 2,656,800.00

Landry v. Currie Page 25
2. Physical pain and mental anguish that, in reasonable
probability, Charlotte Currie will sustain in the future.
ANSWER: 27,993,600.00

3. Physical impairment sustained in the past.
ANSWER: 200,000.00

4. Physical impairment that, in reasonable probability, Charlotte
Currie will sustain in the future.
ANSWER: 1,756,097.00

5. Disfigurement sustained in the past.
ANSWER: 150,000.00

6. Disfigurement that, in reasonable probability, Charlotte Currie
will sustain in the future.
ANSWER: 250,000.00

The trial court’s suggestion of remittitur did not reduce the noneconomic

damages as to Philip. The trial suggested remittitur on the noneconomic

damages for Charlotte as follows:

Physical pain and mental anguish in the past.
Suggested remittitur: 1,582,800.00

Physical pain and mental anguish in the future.
Suggested remittitur: 23,697,600.00

Physical and mental impairment in the past.
Suggested remittitur: 0

Physical and mental impairment in the future.
Suggested remittitur: 0

Disfigurement in the past.
Suggested remittitur: 25,000.00

Disfigurement in the future.

Landry v. Currie Page 26
Suggested remittitur: 125,000.00

Charlotte accepted the trial court’s suggestion of remittitur.

Landry specifically argues in his first issue that even though Charlotte

accepted the trial court’s suggestion of remittitur, the remitted awards for her

past and future pain and mental anguish, past and future physical

impairment, and past and future disfigurement are not supported by the

evidence. He further contends that the evidence does not support the jury’s

award of damages on Philip’s past and future pain and mental anguish, past

and future physical impairment, and past and future disfigurement.

Pain and Mental Anguish

The presence or absence of pain, either physical or mental, is an

inherently subjective question that largely depend on the plaintiff’s word and

on the jury’s credibility determinations. Herchman, 2024 WL 4898787, at *9.

In addition to a plaintiff’s testimony, evidence of a severe injury will support

an inference that the plaintiff experienced pain and suffering. Id. (citing Gen.

Motors Corp. v. Burry, 203 S.W.3d 514, 552 (Tex. App.—Fort Worth 2006 pet.

denied)).

Mental anguish is compensable only if it causes a “substantial disruption

in daily routine or a high degree of mental pain and distress.” Hancock v.

Variyam, 400 S.W.3d 59, 68 (Tex. 2013) (internal quotation marks omitted).

This requires evidence of the nature, duration, and severity of the mental

Landry v. Currie Page 27
anguish, demonstrating a substantial disruption to the plaintiff’s daily

routine.” SCI Tex. Funeral Servs., Inc. v. Nelson, 540 S.W.3d 539, 544 (Tex.

2018); Team Indus. Servs., Inc. v. Most, 711 S.W.3d 31, 58 (Tex. App.—Houston

[1st Dist.] 2024, no pet.).

Both Porter and Q.A. and Landry challenge the awards to Charlotte for

past and future physical pain and mental anguish. Charlotte suffered multiple

injuries as a result of the collision including an aortic rupture, a significant

abdominal injury, and rib fractures. She was in a medically induced coma for

approximately one month. She testified at trial that when she was awakened

from the coma, she experienced pain all over her body. She went to a

rehabilitation hospital to learn basic skills. When she was released, she went

to live with her daughter because she could not care for herself. She continued

to live with her daughter at the time of trial with no immediate plans to return

to her home with Philip because she needs assistance in caring for herself.

Charlotte described that she experiences constant headaches at least five

days out of the week and that she also has persistent backaches. She has no

feeling in her abdomen, and she has numbness in her fingers and toes. She

stated that she cannot stand for a long time and that it hurts to walk.

Charlotte had trouble sleeping after the collision and had nightmares of Philip

screaming. Charlotte also testified that she suffers from anxiety after the

Landry v. Currie Page 28
collision and that she can no longer interact with her grandchildren as she did

before the collision.

There was evidence that Charlotte would require more surgeries in the

future on her knee, back, and abdomen. There was also evidence that her

memory loss, headaches, and dizziness would be chronic conditions. The jury

heard testimony that Charlotte walks with an abnormal gait and that would

also be a chronic condition.

While the awards were significant, they reflected the combined sums for

two types of damages—physical pain and mental anguish—both of which were

“almost entirely subjective,” making the jury’s role in assessing such damages

“paramount.” See Herchman, 2024 WL 4898787, at *10. Based upon the

evidence, we conclude that the awards were within the range of the jury’s broad

discretion. See Id.

We will next consider the jury’s award for Philip’s past and future pain

and mental anguish. Philip suffered a severe fracture of his arm that caused

the bone to go into his shoulder. He described that immediately after the

collision, his arm felt like it was on fire. As a result of the fracture, Philip

developed a blood clot in the major artery supplying blood to the arm. Philip

required immediate surgery to save his arm. Because of his trauma and

injuries, Philip had a stroke that resulted in a loss of his peripheral vision.

Philip also had rib fractures and a severe laceration to his tongue.

Landry v. Currie Page 29
Philip stated that for over a year, he had to sleep in a recliner because of

his arm injury. He described that his arm feels like it is “asleep” and that from

his elbow to his wrist, it feels like his arm is in a “vice and it’s squeezing.” He

said that feeling was still present at the time of trial. He testified that he

experiences pain almost every day.

When he was released from the hospital, Philip went to live with his

sister because he could not care for himself. He eventually moved back into

his home, but his brother moved in with him to help with his care. Philip

suffered from depression after the collision. He was unable to return to work

after the collision, and he cannot perform routine tasks at his home.

Philip testified to the extreme pain he suffered at the time of the

collision, and the ongoing pain he experiences daily. He described a

“substantial disruption in daily routine or a high degree of mental pain and

distress.” See Hancock, 400 S.W.3d. at 68 (internal quotation marks omitted).

Based upon the evidence, we conclude that the awards for past and future

physical pain and mental anguish were within the range of the jury’s broad

discretion. See Herchman, 2024 WL 4898787, at *10.

Physical Impairment

Physical impairment damages compensate a plaintiff for the loss of the

injured party's former lifestyle to the extent that such injuries are distinct

from, or extend beyond, injuries compensable through other damage elements.

Landry v. Currie Page 30
See Herchman, 2024 WL 4898787, at *10. Physical impairment extends

beyond loss of earning capacity and beyond any pain and suffering, to the

extent that it produces a separate loss that is substantial or extremely

disabling. Dawson v. Briggs, 107 S.W.3d 739, 752 (Tex. App.—Fort Worth

2023, no pet.).

Landry does not challenge the existence of Charlotte and Philip’s

physical and mental impairment, but rather the amount of those damage

awards. Porter and Q.A. challenge Charlotte’s award for future physical and

mental impairment. As previously stated, a jury has great discretion in

awarding damages, and we give deference to the jury findings on damages. See

Herchman, 2024 WL 4898787, at *10. The trial court did not suggest any

remittitur on the jury’s award to Charlotte for past and future physical and

mental impairment.

We will first address Charlotte’s past and future physical impairment.

After being released from the rehabilitation facility, Charlotte could not care

for herself. She needed assistance to use the restroom as well as in other

aspects of her personal hygiene care. Charlotte described that she no longer

has the ability to feel when she needs to use the restroom, so she wears diapers

and routinely goes to the restroom every two hours. According to her daughter,

Charlotte is unable to cook, clean, do laundry, or go to the grocery store to care

for herself. Charlotte needs daily reminders to perform personal grooming and

Landry v. Currie Page 31
hygiene. There was credible evidence of Charlotte’s loss of her former lifestyle

distinct from those of physical pain and mental anguish. See Herchman, 2024

WL 4898787, at *11. Therefore, we cannot say that the awards were

manifestly unjust or unreasonably compensated her for the permanent

changes to her lifestyle. See id.

Philip suffered permanent damage to his arm. The Currie’s expert

agreed that Philip will “see a significant amount of impairment moving

forward.” In addition, Philip has permanent vision loss, and he was not able

to return to his previous job. Philip’s brother lives with him to assist in caring

for Philip and in household tasks. Philip’s brother testified that Philip will not

be able to live independently. Philip no longer lives with Charlotte, and he

testified that is not able to have sexual relations. There was credible evidence

of Philip’s loss of his former lifestyle distinct from those of physical pain and

mental anguish. See id. Therefore, we cannot say that the awards were

manifestly unjust or unreasonably compensated him for the permanent

changes to his lifestyle. See id.

Physical Disfigurement

Landry does not dispute the existence of Charlotte and Philip’s

disfigurement but rather challenges the amount of damages awarded. Porter

and Q.A. challenge Philip’s award for future physical disfigurement.

Disfigurement means that which impairs or injures the beauty, symmetry, or

Landry v. Currie Page 32
appearance of a person or which renders a person unsightly, misshapen, or

imperfect, or deforms in some manner. Goldman v. Torres, 161 Tex. 437, 341

S.W.2d 154, 160 (Tex. 1960). Surgical scarring falls into that category. See

Gonzales as Next Friend of Gonzales v. 3 Atoms, LLC, No. 07-19-00437-CV,

2020 WL 1966290, at *3 (Tex. App.—Amarillo Apr. 23, 2020, no pet.) (mem.

op.). Furthermore, additional scarring or deforming is not required to recover

damages for future disfigurement, although it may be a factor in determining

the extent of the damages. See id. Other indicia relevant to the inquiry is

embarrassment and shame arising from the scars. See id. The award depends

on the circumstances of each case and there is no mathematical yardstick

exists by which one can measure damages for it. See id.

As a result of her injuries, Charlotte required a tracheostomy to breathe.

That procedure left a large, permanent scar on her neck. In addition, she has

scarring on her abdomen from her required surgeries. Her daughter testified

that Charlotte is uncomfortable with her scars and feels that her appearance

is “gross” because of it. Based upon the evidence before us and given that there

is no mathematical yardstick by which to measure disfigurement awards, we

cannot say that the awards to Charlotte for past and future disfigurement were

manifestly unjust. See Herchman, 2024 WL 4898787, at *8.

Philip’s surgery on his arm required an eight-inch cut that left a

significant scar. He explained that the scar is painful and continues to bother

Landry v. Currie Page 33
him. The jury viewed a photograph of Philip’s permanent scarring on his arm.

Again, based upon the evidence before us and given that there is no

mathematical yardstick by which to measure disfigurement awards, we cannot

say that the awards to Philip for past and future disfigurement were

manifestly unjust. See Herchman, 2024 WL 4898787, at *8.

Having reviewed all of Porter and Q.A.’s and Landry’s complaints on the

award of noneconomic damages awarded to Charlotte and Philip, we conclude

that the evidence is factually sufficient to support the noneconomic damages

awarded in the judgment. Accordingly, we overrule Porter and Q.A.’s sixth

issue and Landry’s first issue.

Exemplary Damages

Landry contends that because the evidence is insufficient to support the

noneconomic damages, the jury’s exemplary damages award should be

reversed. Landry argues that because “the overwhelming majority of

compensatory damages awarded to the Curries were for non-economic

damages supported by insufficient evidence,[] the award of $806,400 in

exemplary damages should also be reversed and remanded for determination

in a new trial.” We note that here the trial court’s judgment awarded the

Curries $10,979,382 in non-economic damages and awarded $3,562,458 in

economic damages. Because of our disposition of Landry’s first issue, we

overrule Landry’s second issue.

Landry v. Currie Page 34
This Court’s Ruling

We affirm the trial court’s judgment on the Curries’ claims against

Porter. Having sustained Porter and Q.A.’s second issue, we modify the

judgment to delete Q.A.’s proportionate responsibility of 50%. Because we

conclude that the jury’s finding on respondeat superior is supported by the

evidence, Q.A. is vicariously liable for Landry’s negligence. Therefore, Q.A. is

liable for 30% of the damages awarded, and we modify the judgment to that

effect. Having overruled Landry’s first issue, we affirm the trial court’s

judgment on the Curries’ claims against him. We affirm the judgment as

modified.

MATT JOHNSON
Chief Justice

OPINION DELIVERED and FILED: January 29, 2026
Before Chief Justice Johnson,
Justice Smith, and
Senior Justice Davis 2
Modified and affirmed; motion granted
CV06

2 The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Texas.

Landry v. Currie Page 35