On an icy winter day more than ten years ago, the driver of an F-350 pickup truck, traveling eastbound on Interstate 20, crossed a 42-foot grassy median, entered in westbound traffic, and collided with a Werner Enterprises tractor-trailer traveling below the speed limit. The passengers, a mother and her three children, were the victims: one child was killed while the rest of the family was severely injured. In the lengthy litigation that followed, Werner and its driver were found liable and a jury awarded approximately $100 million in damages.

Friday, June 27, the Texas Supreme Court, in Werner Enterprises v. Blake, overturned the decision holding that the trial and appellate courts had erred in finding Werner and its driver liable. Although the ultimate outcome of the case necessarily turned on the specifics of this tragic accident — such as the speed of the respective drivers, weather conditions, and the width of the median — the Court’s reversal contains several important lessons, particularly for transportation companies.

The Existence of Negligence Does Not Necessarily Establish Liability

The Court could, and did, assume that the Werner driver was negligent, in either his speed of travel or that he was on the road at all given the weather conditions. Nevertheless, neither the driver nor Werner were liable because the driver’s “initial act of negligence…merely created the condition” for the injury to occur rather than being the cause of injury itself. The Court reached this conclusion applying its practical proximate cause analysis, under which plaintiffs must demonstrate that the defendant’s negligence was both the “but for” and substantial cause of the injury.

Here, but for the Werner driver’s presence on the road at that precise moment, the F-350 would have safely crossed the interstate without collision. Nevertheless, as “[p]owerful as this line of argument may be” given the tragedy that followed, it is merely the “kind of happenstance of place of time that cannot reasonably be considered a substantial factor in causing these injuries.” Instead, when evaluating whether negligent conduct was a substantial factor in causing the harm, courts must ask whether the defendant was “actually responsible.” The F-350 “losing control and hurtling across the median was the substantial factor in bringing about the injuries” not “a vehicle driving below the speed limit in its proper lane on the other side.”

Facts, Rather Than Foreseeability, May Determine Liability

In overturning the decision against Werner and its driver, the Court emphasized the importance of the specific circumstances in which this accident occurred. Even though the Werner driver was aware that passenger vehicles are more likely to lose control in icy conditions, the foreseeability of that event was not sufficient for establishing liability. The Court previously reached a different conclusion, which plaintiffs relied upon below, in which the vehicles at issue (a commercial bus and a passenger vehicle) were operating on a narrow, two-lane highway crossing a bridge.¹ In that case, applying a “practical, common sense test,” the Court rejected defendant’s argument that the “speed of a vehicle traveling in its proper lane can never be a proximate cause of a collision with an oncoming car that moves unexpectedly into oncoming traffic.” The bus driver should have known that it was foreseeable a vehicle in the opposite lane could cross over when traveling on a narrow thoroughfare and slowed down accordingly. But applying the same “practical, common sense test…yields a different result” when it involves “driving on a four-lane highway divided by a broad, grassy median.”

Setting aside the particulars of the roadways at issue, the Court also pointed one additional key fact: the reaction time available to the commercial driver. Unlike previous cases, the Werner driver’s reaction time, no more than 2 seconds, was much lower than that which was available to other defendant drivers.

Carrier Risk from Nuclear Verdicts Can be Mitigated Through Driver Training and Management

Although the Court found that neither Werner nor its driver were liable, the protracted duration of the case validates the proverb that an ounce of prevention is worth a pound of cure. The appellate court had affirmed the verdict because Werner “created unreasonable risk” by sending its driver “on the run without access to important weather updates, allowing him to drive despite [ ] receiving a low score on a recent driving exam, and sending him into the storm untrained to deliver a time-sensitive load." Had the conditions been different — perhaps something as simple as a narrower median — these deficiencies may have been sufficient to uphold the decision leaving Werner subject to both “derivative” and “direct” liability. Instead, because Werner’s driver’s “unsafe driving did not proximately cause the injuries, Werner cannot be separately liable for facilitating [that] unsafe driving” under either claim.

Accidents, and thus tragedies, are inevitable in the transportation business. But investing in driver training and management can help reduce liability and forestall expensive, time-consuming litigation. This case offers valuable insight into how one court’s practical, fact-based approach reversed a nuclear verdict years in the making.

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¹ Biggers v. Continental Bus System, Inc., 303 S.W.2d 359 (Tex. 1957).