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Reinicke v. Aeroground3/22/2005
In this wrongful death and survival action, Jimmie Reinicke, individually and as legal representative of the Estates of Karen, Max, and Derrick Reinicke (collectively, "Reinicke") appeals a judgment notwithstanding the verdict ("JNOV") in favor of Aeroground, Inc. ("Aeroground") on the grounds that the trial court erred in: (1) entering the JNOV because there was legally sufficient evidence to support the jury's verdict; and (2) excluding from evidence (i) a post-accident drug test for marijuana and valium of Aeroground's truck driver and (ii) the opinions of Texas Department of Public Safety ("DPS") accident reconstructionists. We affirm.
Background
In this particularly tragic case, Reinicke's wife, Karen, and their two sons, Max and Derrick, were killed by a fire resulting from a highway traffic collision (the "accident"). Reinicke brought this wrongful death and survival action against Aeroground (and others who are not parties to this appeal). At trial, the jury apportioned 50% of the negligence to Aeroground and awarded Reinicke damages totaling $23.25 million. However, the trial court ultimately concluded that there was no evidence that any negligence by Aeroground was a proximate cause of the accident, granted Aeroground's motion for JNOV, and entered a take-nothing judgment.
JNOV
Reinicke's first issue contends that the trial court erred in granting the JNOV because there was legally sufficient evidence that Aeroground's negligence proximately caused the accident.
Standard of Review
A trial court may grant a JNOV if there is no evidence to support one or more of the jury findings on issues necessary to liability. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). To determine whether there is no evidence to support a jury verdict (and thus uphold the JNOV), we view the evidence in a light that supports the challenged finding and disregard all evidence and inferences to the contrary. Id. If more than a scintilla of evidence supports the finding, the jury's verdict must be upheld. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003).
More than a scintilla of evidence exists when the evidence enables reasonable minds to differ in their conclusions. See Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004). Conversely, evidence that creates only a mere surmise or suspicion is no more than a scintilla and, thus, no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Similarly, an inference that is stacked only upon other inferences, rather than direct evidence, is not legally sufficient evidence. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003).
Overview of Negligence Grounds
In this case, an Aeroground 18-wheel tractor-trailer rig driven by Randy Peavy ran out of fuel while heading eastbound on Highway 290 and was parked on the shoulder, out of the lane of traffic. Peavy notified Aeroground, and it sent another driver, David Rodriguez, with another tractor with which to pull Peavy's tractor away from the trailer and then pull the trailer to Aeroground's yard. After the first tractor had been moved away from the trailer, but before the second tractor was connected to it, Karen's van drifted off the roadway, collided with the rear corner of the parked trailer, went back onto the roadway, collided with both a Murco 18-wheel rig and the concrete wall dividing the highway, then caught on fire. Reinicke contends that the accident was caused by Aeroground's negligence in the following respects: (1) Peavy allowed his rig to run out of fuel during rush hour on a busy highway, causing it to be placed in a dangerous position on the shou
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