Jack Alton Sherman and Pilgrim's Pride Corporation v. Billie Joe Burnett and Sheri Lisa Burnett--Appeal from 159th District Court of Angelina County (Majority)

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Laws-info.com » Cases » Texas » 12th District Court of Appeals » 2012 » Jack Alton Sherman and Pilgrim's Pride Corporation v. Billie Joe Burnett and Sheri Lisa Burnett--Appeal from 159th District Court of Angelina County (Majority)

State: Texas

Court: Texas Northern District Court

Docket No: 12-10-00037-CV

Case Date: 02/03/2012

Plaintiff: Jack Alton Sherman and Pilgrim's Pride Corporation

Defendant: Billie Joe Burnett and Sheri Lisa Burnett--Appeal from 159th District Court of Angelina County (Maj

Preview:NO. 12-10-00037-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS
PILGRIM'S PRIDE CORPORATION AND JACK ALTON SHERMAN, APPELLANTS V. BILLIE JOE BURNETT AND SHERI LISA BURNETT, APPELLEES

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APPEAL FROM THE 159TH

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JUDICIAL DISTRICT COURT OF

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ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION Pilgrim`s Pride Corporation and Jack Alton Sherman appeal the judgment of the trial court awarding damages to Billie Joe Burnett and Sheri Lisa Burnett resulting from injuries they received in an automobile accident. They raise seven issues on appeal. The Burnetts raise three conditional cross-issues. We modify the judgment of the trial court, and affirm as modified. BACKGROUND On October 13, 2004, at approximately 6:30 a.m., Appellee Billie Joe Burnett was driving his pickup truck in the southbound lane of FM 326 near the intersection of FM 326 and Old Ewing Road in Angelina County, Texas. Appellant Jack Alton Sherman, a Pilgrim`s Pride employeedriver, was driving a tractor-trailer owned by Pilgrim`s Pride loaded with chickens on Old Ewing Road. After he stopped at the stop sign, he began to make a left turn onto FM 326 in the northbound lane. Exactly what happened next was disputed at trial, but the evidence showed that Burnett`s truck and Sherman`s tractor-trailer collided. Debbie Turner, who heard the accident and went to the scene, testified that most of the trailer was in the northbound lane, but the rear portion was partially in Burnett`s lane. Sherman testified that he did not see Burnett`s vehicle when he began

to turn, that he committed to the turn, and that he eventually saw Burnett`s truck come over the top of a hill on FM 326. But he believed that he had enough distance to complete the turn before Burnett`s truck would reach him. Burnett stated that he saw the truck at Old Ewing Road but could not see that it had a trailer because he was focused on the cab portion of the tractor-trailer and its blinding headlights.1 He also testified that he could not see whether the trailer had any side lamps or reflective taping. The trailer obstructed the roadway during its turn. Burnett believed Sherman`s truck had already completed the turn before he saw the trailer, and stated that he could not initiate the brakes in time to avoid a collision. The evidence showed that he did initiate his brakes and unsuccessfully tried to veer to the right just prior to impact. There was testimony that the lights on the trailer were working at the time of the collision. However, the Burnetts presented evidence that the tractor-trailer was equipped with reflective sheeting or taping, but that it was covered with chicken feces. Sherman testified that he did not clean the reflective material on the morning of the accident. He was unaware of any Pilgrim`s Pride policy stating who was responsible for washing trailers when they became dirty. Jerry Adams, the shop manager responsible for maintaining the tractor-trailers, testified that drivers were required to wash their own trucks and trailers, but that there was no specific time schedule or interval in which to do so. Kenny Clifton, former regional fleet safety manager and board member of the Internal Accident Review Board at Pilgrim`s Pride, also testified that there was not a specific schedule for washing tractor-trailers, that feces often covered them, and some offices were better than others at washing them. Clifton examined photos and testified that the trailer could have more tape, and that it probably should not have been on the road. On cross examination, he looked at other photos and stated that the taping on the trailer was not as obscured as it appeared in the prior photos he examined, but that the trailer needed to be washed with soap and water. Tom Reader was the fleet safety administrator for the Nacogdoches/Lufkin offices. He testified that the taping on the rear of the trailer was more visible than the taping on the exposed side of the trailer struck by Burnett, which was somewhat obscured by chicken feces. Nevertheless, he believed the tape on the side Burnett struck was visible and in good condition. Reader testified that the reflective material on the tractor-trailer at issue was about as good as the typical trailer in the Pilgrim`s Pride fleet.
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It was dark at the time of the collision.

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Adams testified Pilgrim`s Pride did not have a specific safety policy that required drivers to make sure the reflective sheeting or taping was in good condition. Adams also testified that it did not require drivers to walk around the trailer to clean the reflective material because it gets dirty every time a trailer goes down a farm road and gets blanketed with dust and chicken feces. Danny Lovell, the live haul shop manager and Sherman`s direct supervisor, whose job it was to oversee the drivers, largely corroborated Adams`s testimony.2 Finally, although equivocal, there was evidence that the reflective material was obscured by chicken feces at the time of the collision. There also was evidence that Burnett was in a methadone maintenance program and was self-regulating his intake of methadone at the time of the accident. In addition, at the hospital, he tested presumptively positive for barbiturates after the accident. Experts testified about the effects of these drugs on the body`s systems. Burnett is legally blind in his left eye, has no depth perception, and was not wearing any type of corrective lenses at the time of the accident. Sherman had cataract surgery on his left eye prior to the accident, and later had the same surgery on his right eye. He did not report any vision problems, the surgery, or the need for additional surgery to anyone at Pilgrim`s Pride. However, he was wearing glasses at the time of the accident. The parties also presented testimony from accident reconstructionists, and both testified that both drivers contributed to the accident and that both could have taken actions to avoid the accident. At the conclusion of the jury trial, the trial court charged the jury. The charge included negligence questions and an apportionment question for Burnett, Pilgrim`s Pride, and separately, Sherman. The jury found that all three parties were negligent and apportioned fault as follows: twenty percent to Pilgrim`s Pride, forty-five percent to Sherman, and thirty-five percent to Burnett. The jury awarded the Burnetts $1,084,390.22 in damages. After apportioning the responsibility of the parties, the trial court reduced the amount of damages in its judgment to $704,853.64. Pilgrim`s Pride and Sherman filed a motion for new trial, which appears to have been overruled by operation of law. This appeal followed.

ADMISSION OF EVIDENCE In their first issue, Pilgrim`s Pride and Sherman (Appellants) contend that the trial court reversibly erred in allowing evidence concerning the Internal Accident Review Board to be
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Reader, Adams, and Lovell all went to the scene shortly after the accident occurred.

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presented to the jury. Specifically, they contend that the evidence was inadmissible hearsay and protected from discovery by privilege. Standard of Review We review a trial court`s evidentiary rulings for an abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (per curiam). In addition, generally, the scope of discovery is within the trial court`s discretion. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (per curiam). The trial court abuses its discretion if it acts without reference to guiding rules or principles, or in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To reverse a judgment based on a claimed error in admitting or excluding evidence, a party must show that the error probably resulted in an improper judgment. TEX. R. APP. P. 44.1(a); Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). We must review the entire record to determine if the evidence probably resulted in the rendition of an improper judgment. Interstate Northborough P'ship, 66 S.W.3d at 220. We must uphold the trial court`s evidentiary ruling if there is any legitimate basis for it. Owens

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