Jeffrey D. Otto

Jeffrey D. Otto

Partner, Casualty Vice Chair

Unanimous Defense Verdict Affirmed by the 7th Court of Appeals

April 26, 2012

The Seventh Court of Appeals upheld a defense verdict obtained by Thompson Coe lawyers in a trucking accident case. Jeff Otto and Tasha Barnes tried the case to a Travis County jury in August, 2010. Plaintiff, a commercial truck driver, claimed injuries from an accident in which his eighteen-wheeler tractor trailer went off a roadway into a caliche pit. Plaintiff claimed the roadway collapsed and sued the construction company that operated the site for negligence, negligence per se, gross negligence and premises liability. During the trial, Plaintiffs' liability expert was excluded from testifying for lack of reliability of his opinions. At the close of Plaintiffs' case, the court directed a verdict on all claims except for the premises liability claims. After a three-day trial, the jury found unanimously in favor of the defendant and placed all responsibility on Plaintiff.

Plaintiffs appealed arguing a number of points including that (1) their liability expert should not have been excluded; (2) that certain statutes and regulations including provisions of OSHA and MSHA should have been admitted as evidence of Defendant's per se negligence and (3) that the court should not have directed a verdict on all claims except premises liability. Bill Mennucci and Wade Crosnoe handled the appeal. The appellate court affirmed the ruling of the trial court holding that (1) the case arose from an alleged premises defect and therefore, all claims should have been dismissed other than the premises liability claim; (2) there was sufficient evidence to support the jury's verdict; (3)the exclusion of the referenced statutes did not cause harm to the plaintiffs; (4) the trial court did not abuse its discretion when excluding the liability expert because his opinions were based upon possibilities, not probabilities; (5) admission of evidence concerning another accident involving the truck driver and his habit of taking naps during the day was harmless; and (6) the "sole proximate cause" instruction was harmless because the jury found only the driver responsible for the accident. A full copy of the opinion can be found here.