Honorable John A. Pope, III, Judge, Presiding

Sitting: Phil Hardberger, Chief Justice Tom Rickhoff, Justice Karen Angelini, Justice (concurring in the judgment only)

Opinion by: Tom Rickhoff, Justice

Concurring and Dissenting Opinion by: Phil Hardberger, Chief Justice

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Flavio Alaniz Sr. was killed when a highly intoxicated driver plowed into a flashing “arrow board” attached directly to his crew’s work truck on a Houston highway project. The question before us is whether the project’s general contractor, his employer’s employer, can be held liable. Because we find the general contractor’s traffic superintendent had actual knowledge that this arrangement was dangerous when he loaned the subcontractor the arrow board, this jury was justified in finding both a duty and a breach of that duty. However, because we find the measure of damages was not supported by the evidence, we reverse and remand.

On July 16, 1991, Alaniz was working for Paige Barricades, Inc., a subcontractor specializing in highway marking and striping, when the accident occurred. Alaniz’s survivors brought suit against the driver, the maker of the arrow board, Paige, and Traylor. All the defendants except Traylor settled before trial. The trial court entered judgment on a jury verdict for $12,152,730.43 against Traylor exclusive of interest. In thirty-one points of error Traylor argues: 1) it owed no duty to Alaniz because it was not Alaniz’s employer; 2) there was no evidence or insufficient evidence of Traylor’s negligence; 3) there was no evidence or insufficient evidence of causation; 4) the drunk driver’s actions were a new and independent cause of Alaniz’s death; 5) the trial court erred in permitting expert testimony on damages; 6) the jury’s damage awards were not supported by the evidence; and 7) the trial court erred in apportioning settlement credit and in assessing ad litem fees. We affirm in part and reverse and remand in part.

Facts

[14] Alaniz, a Starr County resident, was one of a six-member crew whose duties included applying striping and attaching raised pavement markers (“buttons”) to the pavement. Paige’s contract was part of a $45 million project to widen and expand the Southwest Freeway in Houston. Traylor was the general contractor on this project.

Testimony showed five members of the crew took a Paige truck to the Traylor yard and borrowed an arrow board. These arrow boards, which direct traffic to merge left or right by use of sixty lights arranged in an arrow shape, are mounted on a one-axle trailer and towed behind a truck. Testimony showed this particular arrow board’s face was four feet by eight feet and, when in position behind a truck, was designed to ride about seven feet off the ground. A generator enclosed by a steel cage rode between the wheels of the trailer, directly beneath the face of the arrow board. Testimony showed this cage, which was designed to prevent theft of the enclosed generator, had a hasp for a lock or bolt to secure it; however, none was used on that night. This Class C sign board was designed to be seen at a distance of about a mile.

The “head man” of the crew, Garcia, checked to make sure the board was working and then took the crew out to the job site, where he met the foreman, William Van Buren. [Garcia] was designated “head man” because he alone understood English (Alaniz was [Garcia]’s brother-in-law.) At the job site, the crew put down temporary markings for a newly completed exit ramp and then proceeded to another part of the access road to perform maintenance on temporary pavement markings. Van Buren stayed behind in a Paige pickup truck to get billing information on the work they had just performed.

1. The Work: Putting Down “Buttons”

This maintenance work, which was done pursuant to a “barricade report” from the Texas Department of Transportation, involved driving along the access road and looking for loose temporary “buttons.” These buttons defined the lanes on the access road. One man, carrying hot plastic adhesive in a ladle, would pour a patch of the glue in the appropriate place while one of the other men would place the appropriate button by hand. The adhesive, called thermoplastic, had to be heated to 350 degrees in a sizeable furnace kept in the back of the work truck. This hot adhesive was dispensed through a spigot on the side of the furnace; this furnace required constant tending.

2. The Process: The “Rolling Closure”

The work truck proceeded slowly down the closed lane while workers searched out missing buttons. This resulted in a “rolling closure” of that lane. The truck would be moving at a walking pace; the lane would be open to traffic in front of, and behind, the crew. The truck would stop periodically when the crew needed more adhesive or buttons. This would result in minimal disruption to traffic flow while the crew did its work. The arrow board, towed behind the work truck, would alert traffic to the fact that it had to merge to the right to avoid the convoy. The work truck also had strobe lights to alert drivers.

The Manual on Uniform Traffic Control Devices (“MUTCD”), which was incorporated by reference into Traylor’s contract with the state, and Traylor’s contract with Paige, advises that a “shadow vehicle” ought to be used to tow the work sign under such circumstances:

6F-10.3. Slow Moving Activities or Intermittent Stop Activities

Slow moving operations may involve such work as pavement marking or placement while intermittent stop operations may involve such work as pot hole patching. When performing such work on the roadway, a shadow vehicle should be used to warn traffic and protect workmen. Where feasible, advance warning signs should be placed along the roadway and periodically moved up as the work progresses. On low volume roads, a single vehicle equipped with signs, beacons and/or a flashing or sequencing arrow panel may suffice if there is good visibility.

When slow-moving operations are performed on high-speed roadways, it may be necessary to use one or more backup vehicles equipped with signs or flashing or sequencing arrow panels . . .

MUTCD later reinforces this advice:

6E-8. Advance Warning Arrow Panel Application

Placement of the arrow panel should be varied as needed to achieve the desired recognition distances. . . .

For moving-maintenance activities where a lane is closed, it is preferable that the arrow panel be placed at the rear of the activity in the closed lane on a vehicle separate from the maintenance vehicle itself. The arrow panel should always remain upstream of the maintenance vehicle where adequate recognition distance is available. . . .

However, Paige ignored this advice. Instead, the arrow board was hooked up directly to the work truck. In this arrangement, the crew, constantly reaching into the bed of the truck for markers or adhesive, would also be constantly between the arrow board and the work truck. The only thing between them and the oncoming traffic, in other words, was the arrow board.

3. The Accident Scene

The men were working on the outbound feeder road of U.S. Highway 59, just past Bissonnet, at some time after 11:30 p.m. At the time of the accident, the main freeway lanes were closed; all traffic was diverted from the main portion of U.S. 59 onto this three-lane feeder road. This traffic would drive past three off-duty police officers and police cars working traffic control, and through two intersections controlled by traffic lights. The police officers, with emergency lights activated, were stationed at the exit from the main lanes of the freeway and at each controlled intersection. The speed limit in this construction zone was 35 miles per hour. After the second intersection, the left-hand lane was closed by barrels and guard rails, reducing the road to two lanes. The accident occurred on this stretch, where Alaniz’s crew’s rolling lane closure reduced the access road (and, consequently, U.S. 59) to one lane.

4. The Accident

Vicente Garcia said the crew had traveled about 125 feet putting down buttons. Three men were working between the arrow board trailer and the work truck when the first warning was shouted that a pickup truck was coming and it wasn’t going to stop.

Vicente said he was tending the furnace, the second man was grabbing buttons, and Alaniz, on the traffic side of the trailer tow bar, was using the spigot on the furnace to load thermoplastic into his ladle. Vicente said the first warning came when the truck was just seconds away. He said Alaniz was jumping over the tow bar of the trailer when the truck plowed into the arrow board. Testimony from other drivers showed that the truck was travelling at about 55 miles per hour when it hit the arrow board almost straight on, and that the truck did not brake before the collision. The cage over the arrow board’s motor flew open and struck Alaniz, propelling him into the tailgate of the truck with terrific force. Alaniz was pronounced dead at the scene.

After the pickup truck shuddered to a halt, its driver, James Calvary, apparently got out, saw Alaniz dead or dying, and limped away in the pickup truck. He was arrested while trying to convince a wrecker driver to tow his truck without calling the police. He was later convicted of intoxication manslaughter in the incident.

The Question of Duty

In its first through fifteenth points of error, Traylor complains that it owed no duty to Alaniz, as an employee of a subcontractor; that Calvary’s criminal act was a superseding cause absolving it of liability; and that its own negligence did not cause Alaniz’s injuries.

1. The Legal Standard

The threshold inquiry in a negligence case is duty. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987). The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

Under the general rule of Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985), while an owner or occupier of premises is generally not obligated to require an independent contractor to perform an on-premises activity in a safe manner, he may be liable when he retains the right to control the contractor’s work but fails to exercise his retained control with reasonable care. Redinger, 689 S.W.2d at 418; Tovar v. Amarillo Oil Co., 692 S.W.2d 469, 470 (Tex. 1985); RESTATEMENT (SECOND) TORTS § 414 (1965). Moreover, a general contractor on a construction site in control of the premises is charged with the same duty as an owner or occupier. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 431 (1950).

It is also well-established that the responsibility for conducting a task in a safe manner rests with the independent contractor and not the premises owner or occupier “where the activity is conducted by, and is under the control of an independent contractor, and where the danger arises” out of the employees’ performance of the task. Abalos v. Oil Development Co., 544 S.W.2d 627, 631 (Tex. 1976).

If a right of control over the work has a contractual basis, the fact that no actual control was exercised will not absolve a premises owner of liability; it is the right of control, and not the actual exercise of control, which gives rise to a duty to see that an independent contractor performs work in a safe manner. Pollard v. Missouri Pac. R. Co., 759 S.W.2d 670, 671 (Tex. 1988); Newspapers Inc. v. Love, 380 S.W.2d 582, 589 (Tex. 1964).

In other words, in a contractor-subcontractor context, liability follows control; there must be a nexus between the control and the accident. Hoechst-Celanese Chemical Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex. 1998); Clayton W. Williams Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993).

2. Traylor’s Traffic Control Duties

Appellees first argue that Traylor was negligent in its traffic control duties and that we should find liability on this basis. They argue, first, that it was traffic that killed Alaniz; since Traylor did not delegate traffic control to Paige, Traylor was responsible. Second, they argue that Traylor negligently failed to control Calvary, which negligence caused Alaniz’s death. We decline to find this, for several reasons.

First, we believe the conduct of the parties shows they never intended for Traylor to supervise Paige’s rolling lane closures; therefore no contractual basis exists for imposing liability on Traylor.

Conduct of the parties which indicates the construction that the parties themselves place on the contract may be considered in determining the parties’ true intent. Consol. Eng’g Co. v. Southern Steel Co., 699 S.W.2d 188, 192-193 (Tex. 1985). Evidence with reference to the control that was actually exercised is relevant and admissible as tending to prove what the contract really contemplated. Newspapers Inc., 380 S.W.2d at 589.

In the contractor-subcontractor agreement, Traylor delegated to Paige the duty to “furnish all labor, materials, equipment, supervision” relevant to pavement markings. Maintaining the temporary markings on the travelled roadway was clearly Paige’s job, and this job could not be done without closing a lane on at least a temporary basis. Indeed, testimony indicates that Paige was working in the area that night not at Traylor’s direction, but according to a “barricade report” issued by the Texas Department of Transportation. The inescapable inference is that the parties’ contract called for Paige to conduct those rolling lane closures which were a necessary part of its temporary marker maintenance duties.

Second, we do not believe Traylor’s conduct of its general traffic control duties could have prevented Alaniz’s injury. We do not see how Traylor could have stopped this severely intoxicated man — a man who barely swerved from colliding dead-on with an arrow board designed to be seen from a distance of one mile – by a more vigorous exercise of its traffic control duties. Cf. Lear Sigler v. Perez, 819 S.W.2d 470, 472 (Tex. 1991) (whether arrow board was working irrelevant when driver who struck arrow board was asleep). To hold otherwise would be to make Traylor, under the guise of its “traffic control duties,” an insuror of the safety of every workman on its job, which would be contrary to law.

3. The Mendez Duty

If Traylor is to be held legally liable, its negligence must involve its failure to intervene, when Paige borrowed its arrow board, to see that it was not hooked up in an arrangement which it knew to be dangerous. ¹ We find that Traylor’s failure to do so is sufficient to impose legal liability on the general contractor.

In Hoechst-Celanese Chemical Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex. 1998), the court found that a contractor which requires a subcontractor to comply with its safety regulations owes a narrow duty of care – that is, that its safety requirements and procedures do not unreasonably increase the probability and severity of injury. Id. at 358. In the process of reaching that conclusion, the court noted that “an employer who is aware that its contractor routinely ignores applicable federal guidelines and standard company policies related to safety may owe a duty to require corrective measures to be taken or to cancel the contract.” Id. at 357. We believe this is the duty implicated here.

The members of the crew testified that they always borrowed an arrow board from Traylor on that job. They also testified they always hooked up the arrow board directly behind the work truck. Jerry Williams, Traylor’s traffic superintendent, testified he watched as the Paige crew rigged up the signboard behind its work vehicle:

[WILLIAMS:] But, yeah, Bill [Van Buren, foreman of the Paige Barricades crew] had called me and met with me, and wanted to borrow one of our arrow boards[.]

Question: All right.

[Williams:] – and I said that was fine. And he would meet – him and the crew would meet me at the yard, they would pick up the arrow board, and he knew exactly where he was going and what he was going to do.

Question: All right.

[Williams:] I met him at the yard. They hooked the arrow board to the truck, hooked the chains up. I checked the board. Everything was – was operable, the lights on their truck was working, and they were ready to go.

Other testimony established that the bulky furnace designed to heat the thermoplastic was in the bed of the pickup truck when the Paige crew hooked up the arrow board. Therefore it would be unlikely that Williams would be mistaken about whether the crew would be working out of the back of this truck. The testimony of Karen Baker, a Texas Department of Transportation engineer involved with the project, shows that this arrangement would make the crew’s pickup truck a “work vehicle” and not a shadow vehicle within the meaning of the MUTCD regulations. Moreover, Williams saw the crew working with the arrow board later that day and saw that the board was hooked up to the work truck, not a shadow vehicle. He acknowledged that Traylor would have been able to stop Paige if it saw an unsafe practice.

Perhaps most importantly, Williams testified that in the course of his employment with Traylor he had seen or heard of three arrowboards being struck by oncoming vehicles prior to Alaniz’s death, and said he knew of a similar accident since. Williams even said he had been at the scene on one of those occasions.

We therefore find that Traylor knew that its subcontractor routinely violated the MUTCD provisions concerning use of an arrow board and is therefore chargeable with the duty recognized in Hoechst-Celanese.

As the supreme court noted in Mendez, this duty is akin to the failure to the duty to exercise a contractually retained right of control. Id. (citing Tovar v. Amarillo Oil Co., 692 S.W.2d 469 (Tex. 1985)). This in turn suggests an alternative basis for liability.

In Tovar, a contractor retained a subcontractor to drill an oil well; the contract gave the contractor the right to intervene and take possession of the operation in the event of carelessness, incompetence or inattention. Id. at 470. Included in the contract was a specific provision that the kill line should not be used as a fill line on the blowout preventer. Id. The subcontractor used the kill line for the fill line; this design was implicated in the blowout which injured Tovar. Id. The supreme court, noting that the contractor knew of this deviation, held that it had negligently failed to exercise its right of control over the subcontractor. Id.

Traylor contractually retained the right to regulate the use of its borrowed equipment. The contract between Traylor and Paige provided that Paige would “[c]omply with all statutory and/or contractual safety requirements applying to his work and/or initiated by the Contractor . . .” and provided that “Contractor’s equipment will be available to the Subcontractor only at the Contractor’s discretion and on mutually satisfactory terms.” By retaining the right to veto the use of its equipment, Traylor contractually reserved the right to see that its equipment was used properly.

So Traylor knew that its subcontractor routinely ignored safety standards incorporated both into state regulations and its contract; it knew that this failure created a dangerous condition; and it did nothing. Moreover, the safety equipment used in dangerous fashion was Traylor’s own equipment. Traylor maintained an independent right to see that its equipment was not misused. Yet Traylor did nothing.

Viewing the evidence in the light most favorable to the jury’s verdict, as we must, we find that Traylor owed Alaniz a duty, breach of which proximately caused Alaniz’s injuries.

3. Sufficiency of the Evidence

Traylor also challenges the legal and factual sufficiency of the evidence that it was negligent. When reviewing a legal sufficiency challenge to a jury verdict, all of the record evidence must be considered in a light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party’s favor. Formosa Plastics Corp. USA v. Presidio Eng’rs, 960 S.W.2d 41, 48 (Tex. 1997) (quoting Harbin v. Seale, 461 S.W.2d 591, 592 (Tex. 1970)). Anything more than a scintilla of evidence is legally sufficient to support the finding. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993).

Factual sufficiency points of error concede conflicting evidence on an issue, yet maintain that the evidence against the jury’s finding is so great as to make the finding erroneous. Raw Hide Oil & Gas v. Maxus Exploration, 766 S.W.2d 264, 275 (Tex. App.-Amarillo 1988, writ denied). In reviewing a factual insufficiency point, we must examine the entire record to determine if there is some probative evidence to support the finding, and, if there is, we must determine whether the evidence supporting the finding is so weak or the answer so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951); Maxus, 776 S.W.2d at 276.

a. Evidence of Negligence

Entered into evidence was the Manual on Uniform Traffic Control Devices, which was incorporated both into Traylor’s contract with the state, into Traylor’s contract with Paige, and into the Texas Administrative Code. It provides a standard for use of an arrow board in a “rolling lane” closure and asserts that use of a shadow vehicle is advisable. Paige’s conduct of the rolling lane closure fell short of that standard. Because the Manual on Uniform Traffic Control Devices is written permissively, it does not have the force of law and does not by itself create a duty. State Dep’t of Highways and Public Transportation v. King, 808 S.W.2d 465, 466 (Tex. 1991). However, we believe it may be considered, like OSHA regulations, to be “the cumulative wisdom of the industry on what is safe and what is unsafe.” Wal-Mart Stores v. Seale, 904 S.W.2d 718, 720 (Tex. App.-San Antonio 1995, no writ). We therefore find this constitutes some evidence on which a jury could rationally find Paige, and by extension Traylor, negligent. We also find that this evidence, coupled with Williams’ testimony of the number of arrow boards he had seen struck by traffic, is factually sufficient to support the jury’s finding that Traylor was negligent.

Traylor’s first through eleventh and fourteenth points of error are overruled.

b. Intervening cause

In its twelfth and thirteenth points of error, Traylor argues it owed no duty to Alaniz because James Calvary’s conduct was a new and independent cause of Alaniz’s death, and because it had no duty to foresee Calvary’s criminal conduct. We disagree.

A cause will only be considered “new and independent” if it is an act or omission of a separate and independent nature which destroys the causal connection between the negligent act or omission of the first tortfeasor and the injury complained of, which thereby becomes the immediate cause of such injury. Darwin v. Fugit, 914 S.W.2d 621, 626 (Tex. App.-Fort Worth 1995, writ denied). The act of a third person which intervenes but only contributes a condition necessary to the injurious effect of the original negligence, does not excuse the first tortfeasor if the act was foreseeable. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549-550 (Tex. 1986).

The jury was instructed:

“New and Independent Cause” means the act or omission of a separate and independent agency, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of such occurrence.

Williams testified he had seen three arrowboards struck by automobiles prior to Alaniz’s death. Calvary’s conduct was reasonably foreseeable; therefore he does not constitute a new and independent cause. Traylor’s twelfth and thirteenth points of error are overruled.

c. Criminal Conduct of Third Parties

In its fifteenth point of error Traylor contends it had no duty to anticipate the criminal acts of third parties. We disagree.

Because criminal and tortious conduct of third persons is not necessarily foreseeable to a reasonably prudent landowner, such conduct is usually a superseding cause relieving a negligent landowner or occupier from liability. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 550 (Tex. 1985). However, when the criminal act in question was foreseeable, the premises owner or occupier can be charged with a duty to protect its business invitees from crime. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).

The testimony adduced in this cause contains ample references to accidents in which vehicles crash not only into arrow boards protecting moving lane closures, but permanent lane closures in which workers were protected by guard rails and barrels. Williams’ testimony showed he had seen three arrow boards hit before. He acknowledged that intoxicated drivers were a fact of life in working on building or maintaining highways. ² We therefore find that Calvary’s conduct was foreseeable to Traylor. Traylor’s fifteenth point of error is overruled.

Damages

In its twenty-first point of error Traylor complains the trial court erred in admitting Everett Dillman’s testimony regarding the value of intangible damages. We agree.

Dillman, an economist, was qualified as an expert and testified as to the measure of damages due Alaniz’s minor children. He first testified as to Alaniz’s expected future earnings and the value of his household services over his lifetime (roughly $287,578). He then went on to attempt to quantify how the jury could value the children’s loss of Alaniz’s love and affection, guidance and companionship. Dillman suggested the jury could calculate the amount of these damages based on per diem amounts of $100 and $150 per day. Traylor objected to this part of his testimony, citing E.I. Du Pont v. Robinson, 923 S.W.2d 549 (Tex. 1995); this objection was overruled. Dillman suggested awards of $2.3 million, $2 million and $1.82 million, respectively, based on his calculations; the actual awards by the jury were $3.5 million, $2.5 million and $2.5 million.

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a qualified expert may testify in the form of an opinion or otherwise. Tex. R. Civ. Evid. 702, superseded by Tex. R. Evid. 702 (1998). It is not enough that an expert is qualified in the field in which he seeks to testify; it is the burden of the proponent of the expert’s testimony to show that the expert’s testimony is both relevant and reliable. Robinson, 923 S.W.2d at 556. Reliability is tested by considering whether the testimony is grounded in the methods and procedures of science; testimony which is not so grounded is nothing more than subjective belief or unsupported speculation. Id. at 557 (quoting Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993)).

Even after finding an expert’s testimony is both relevant and reliable, the trial court has a further duty to weigh the expert’s testimony against the danger of unfair prejudice, confusion of the issues, or possibility of misleading the jury. Robinson, 923 S.W.2d at 557 (quoting Tex. R. Civ. Evid. 403, superseded by Tex. R. Evid. 403).

We believe the trial court abused its discretion in permitting Dillman to testify in detail as to how the jury should value such non-economic damages. We believe this is the case for several reasons.

First, Dillman’s testimony, based as it was on speculative numbers, is not relevant within the meaning of Robinson. Dillman was eminently qualified by his training and experience as an expert economist; however, this record is devoid of evidence that Dillman is an expert parent, an expert spouse or an expert sibling. In fact, this record is devoid of evidence that Dillman plays any of those roles in real life. Dillman’s giving opinions on the topic amounts to an abuse of his position as an expert.

We note that when Texas courts are called on to value the parent-child relationship, they do not depend on economists for that valuation. Suits involving termination of parental rights require determination of whether a parent’s behavior is so counterproductive that they should be removed. Since termination required clear and convincing evidence, both sides marshal substantial evidence, including testimony from social workers, case workers, psychiatrists and the like. Likewise, in Title III Family Code cases where a determination must be made as to the wisdom of sending a child to the Texas Youth Commission, trial judges must assess the value of parental guidance. True, these types of cases do not involve monetary value, and they require proof by clear and convincing evidence; yet these cases can have much more serious consequences for parents and children alike. The utter absence of Dillman’s qualifications, coupled with his failure to know any facts about this father and these children and their relationship, leads to the conclusion that Dillman is nothing more than an unqualified “think big” witness.

Since Dillman was not qualified as an expert on the topic of placing a dollar value on loss of consortium damages, he was a lay witness and therefore limited to giving an opinion “rationally based on the perception of the witness.” Tex. R. Civ. Evid. 701 (superseded by Tex. R. Evid. 701). Because this record is devoid of evidence that Dillman knew the Alaniz family, his opinion was not “rationally based on the perception of the witness” and this testimony was improper.

We also believe Dillman’s testimony was not relevant because it was not a proper topic of expert testimony. As noted in another case in which Dillman attempted to quantify loss of society and consortium damages, his testimony “possessed no traces of special knowledge which jurors do not possess in deciding this issue.” Seale v. Winn Exploration Co., 732 S.W.2d 667, 669 (Tex. App.-Corpus Christi 1987, writ denied). And it is error to admit expert testimony on a topic which does not require expert testimony. See Borden Inc. v. de la Rosa, 825 S.W.2d 710 (Tex. App.-Corpus Christi 1991), vacated pursuant to agreement, 831 S.W.2d 304 (Tex. 1992).

Secondly, we believe Dillman’s testimony is not reliable within the meaning of Robinson. The heart of Dillman’s testimony is the rather novel assertion that such damages as loss of society and loss of consortium can be rationally calculated on a per diem basis, and that this loss can be assumed to remain constant over the projected lifespan of an individual. This theory has not been published, has not been reviewed by peers and was created solely for the purposes of litigation. In other words, it is not “based on a reliable foundation.” Robinson, 923 S.W.2d at 556. It meets the criteria that would qualify it as “junk science.” Id. at 554.

Dillman freely acknowledged that his suggested values were chosen out of thin air. He testified that “I’m giving a number that the jury can move up or down very easily depending on the evidence. The only reason we use a hundred or ten is that we operate on the decimal system, which means we can move it up or down easily depending on what they feel.” Dillman never did explain why his assumption that grief and loss would remain constant over the remaining thirty-nine years of Alaniz’s projected lifespan was sound.

Because Dillman’s testimony was not shown to be scientifically reliable, then, the trial court abused its discretion in admitting such testimony. We now consider whether Dillman’s testimony “probably caused the rendition of an improper judgment.” Tex. R. App. P. 44.1(a)(1). We believe that it did.

First, one measure of harmfulness is whether the jury’s award appears to have been unduly influenced by the testimony. See, e.g., Celotex Corp. v. Tate, 797 S.W.2d 197 (Tex. App.-Corpus Christi 1990). Tate was a case in which Dillman sought to analogize the value of past and future guidance and counsel to the average salary of a teacher. Id. at 202. The reviewing court found this testimony by Dillman was improper; it also found that because the jury’s awards were less than a third of those “authorized” by Dillman, any error in admitting his testimony was harmless. Id. at 203. Here the awards given are from one-fifth to one-third larger than those “authorized” by Dillman. We therefore find that Dillman’s testimony probably did cause rendition of an improper judgment.

Second, we believe Dillman’s testimony is harmful as a matter of public policy. We believe it essentially displaces the good sense of the jury when evaluating damages which are peculiarly within the province of the jury. As the supreme court noted in Robinson, “to the jury an `expert’ is just an unbridled authority figure,” and a witness who has been admitted by the trial court as an expert often appears inherently more credible to the jury than does a lay witness. Robinson, 923 S.W.2d at 553.

Dillman’s testimony does violence to the deeply rooted concept in Texas that the duty of resolving the monetary value to be placed on loss of society damages, such as loss of consortium, falls upon the jury and its impartial conscience and judgment acting reasonably, intelligently and in harmony with the evidence. Whittlesey v. Miller, 572 S.W.2d 665, 667 (Tex. 1978). Evaluating these damages is primarily and peculiarly within the province of the jury. Loyd Elec. Co. v. Millett, 767 S.W.2d 476, 484 (Tex. App.-San Antonio 1989, no writ).

For all these reasons, we believe the trial court erred in admitting Dillman’s testimony on valuation of loss of society damages. We also believe this error resulted in rendition of an erroneous judgment. Traylor’s twenty-first point of error is sustained.

Because our disposition of this point of error dictates a remand, we need not reach the remaining points of error, including the intriguing questions of whether the jury’s actions in apportioning only five percent of the blame for this accident to the drunk driver and ten percent to Paige was so against the evidence as to be wrong as a matter of law.

Conclusion

When Traylor saw its borrowed equipment being used in a dangerous way, it had a duty to Alaniz to correct the arrangement. Breach of that duty proximately caused Alaniz’s death. However, because the trial court’s admission of improper testimony caused rendition of an improper verdict, we reverse the judgment of the trial court and remand this cause for further proceedings.

Tom Rickhoff, Justice

Publish

¹ Appellees also contend that Traylor can be held liable for lending Paige a defective piece of equipment – i.e., an arrow board which did not have a padlock or bolt through the hasp. However, the cage was a theft prevention device, not a safety device. Since the character of the harm caused by the lack of a bolt or lock was not foreseeable, we decline to consider appellees’ argument in the alternative. See generally W. Paige Keeton et al., Prosser and Keeton on The Law Of Torts § 43 (5th ed. (Lawyer’s Edition) 1984).

² See also Universal Services Co. v. Ung, 904 S.W.2d 638, 642 (Tex. 1995) (acknowledging “ample evidence that working alongside a busy highway is an inherently dangerous occupation”). However, we also note Texas has not adopted the Restatement (Second) of Torts’ view that some activities are abnormally dangerous and warrant imposition of strict liability. See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 438 (Tex. 1997); Robertson v. Grogan Investment Co., 710 S.W.2d 678, 679 (Tex. App.-Dallas 1986, no writ).