JBS CARRIERS, INC. and James Lundry, Petitioners, v. Trinette L. WASHINGTON, Sophia Renee Lenzy, Thomas Charles Lenzy, Individually and as Representatives of the Estate of Mary L. Turner, Deceased, Respondents, 564 S.W.3d 830

Here, the evidence connected Turner's mental health and drug use to her walking into the road outside a cross walk when a large truck was moving toward her. In Dr.

Miller's offer of proof testimony, he stated that after watching the video of Turner walking into the road and into the truck without slowing down, that [C]ertainly to me in my experience-my education, training and experience, [Turner's action] fits the scenario of a person who is not only impacted by medication but more likely is having an exacerbation of a severe mental condition particularly of the nature of schizophrenia paranoid type and bipolar disorder. He also testified that Turner had a level of opiates in her system which could impair her condition.

She was not taking at least two of her prescribed medicines that would improve her condition. She had cocaine in her system. Those things can sure impair you ... to a reasonable degree of medical certainty ... those things can contribute to a mental impairment. Such evidence was related to Turner's "vigilance, judgment, and reactions" in walking into the road when and where she did and under circumstances where she had an unrestricted view of a large truck moving toward her. See PPC Transp. , 254 S.W.3d at 642-43 ; Ticknor , 2006 WL 2074721, at *2.

The family asserts that the probative value of the evidence of drug use was extremely low because there was no evidence Turner was impaired. They first point to Dr. Miller's deposition testimony where he stated that he had no specific proof any substance was impairing Turner at the time of the accident. But Dr.

Miller clarified in his deposition that he had not seen the toxicology report or the autopsy, while his offer of proof testimony at trial showed that after his deposition he reviewed those documents and took them into account in forming his opinion that Turner's action as depicted in the video "fit the scenario" of a person impacted by a mental condition, medication, and drugs. The family argues that Dr. Miller's bill of exception testimony does not show Turner was actually intoxicated or impaired.

But a specific showing of intoxication is not required in order for evidence regarding the use of substances to be admissible. See Ford Motor Co. , 81 S.W.2d at 1037 (evidence of smell of liquor on a driver's breath was admissible in light of evidence that the driver swerved to the opposite side of the road). As for impairment, Dr.

Miller's testimony sufficiently linked Turner's mental health and drug use to her actions to make it relevant to and probative of the question of whether her mental health, drug use, or both, were connected to the actions she took relative to her death, and particularly to the question of whether her actions were such as would have been taken by a person using ordinary care. See TEX. R. EVID. 401 (providing that "evidence is relevant if ... it has any tendency to make a fact more or less probable than it would be without the evidence").

The family contends that the danger of unfair prejudice was high because of the stigma associated with schizophrenia and drug use. To the extent any stigma associated with mental illness might raise prejudice concerns, as noted above, the key question in analyzing this assertion is not whether the evidence is prejudicial, but whether it is unfairly prejudicial. Evidence is unfairly prejudicial if it has an "undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one." Diamond Offshore Servs. , 542 S.W.3d at 549.

The jury was tasked with deciding whether Turner acted with ordinary care in walking into the street under the circumstances. That necessarily required it to evaluate her mental and decision-making processes. The excluded evidence would have allowed the jury at least some view of those processes when it assessed whether her actions met the standard of ordinary care-that is, whether she walked into the street because her mental processes were impaired, or because Lundry's hand signals induced her to do so, as the family asserted.

See id. ("The [excluded evidence] does not encourage the jury to decide on any improper basis, but rather on the basis that Williams's condition is not as severe as he claims.

That is not unfair."); PPC Transp. , 254 S.W.3d at 643 (concluding that the danger that the jury might derive "unfair negative connotations" from evidence the defendant had consumed alcohol before an auto accident did not substantially outweigh its probative value because the evidence "serves to provide the jury with a clearer understanding of the evidence of Metcalf's driving ability, vigilance, judgment, and ability to react at the time of the accident"); Garza , 217 S.W.3d at 555 (finding that the probative value of a mother's mental health records outweighed any danger of unfair prejudice where the mother's mental state was relevant to the issue of child custody and to the best interests of the children).

Absent the excluded evidence, the jury was not properly informed in making its decision. It had to judge Turner's decision-making processes and actions after having seen and heard only a limited, filtered version of the evidence as to those processes and actions. While we recognize the potential for jurors to derive unfair negative connotations from the excluded evidence, under these circumstances, that potential is not substantially outweighed by the probative value of the evidence. Thus, the evidence is not unfairly prejudicial.

The family also argues that the probative value of the excluded evidence was lower because the jury was able to view a video of the events in determining who was at fault. We disagree. The video of the occurrence, in combination with other evidence the family introduced, provided a one-sided view of the possible reasons for Turner's actions. An expert witness called by the family addressed that question.

He opined that, considering the video and Lundry's testimony, Turner may have walked into the street in response to the hand motions that Lundry testified he directed toward the driver of the car blocking his turn from Rittiman onto Goldfield. That theory was brought up by the family throughout the trial. The evidence Lundry and JBS sought to introduce undoubtedly would have been prejudicial to the family's theory if the evidence had been admitted-as "much of a proponent's evidence is legitimately intended to wound the opponent." See Diamond Offshore Servs. Ltd. , 542 S.W.3d at 549.

The excluded evidence would have provided a distinct and completely different reason for Turner's actions from that advanced by the family. In sum, we agree with Lundry and JBS that allowing them to introduce evidence providing an alternative explanation for Turner's actions-her mental condition and the drugs and alcohol in her system- would not have been unfairly prejudicial to the Family when considered in context of the record as a whole.

The probative value of the excluded evidence was high, not low, when considered in context with the video and other evidence the family introduced regarding Turner's actions related to the question of why Turner walked into the street. We conclude that the trial court erred by excluding the toxicology report and Dr. Miller's opinion that Turner's mental health condition and the drugs in her system likely contributed to her actions. That being said, an erroneous exclusion of evidence is not reversible error unless it was harmful-that is, it "probably caused the rendition of an improper judgment." TEX. R. APP.

P. 61.1(a). We address that question next. 2. Harm "Exclusion of evidence is likely harmless if the evidence was cumulative or if the rest of the evidence was so one-sided that the error likely made no difference in the judgment." Gunn v. McCoy , 554 S.W.3d 645, 668 (Tex. 2018). But the exclusion "is likely harmful if it was 'crucial to a key issue.' " Id. The first consideration-whether the evidence was cumulative or strongly one-sided- does not support a conclusion that the exclusion was harmless. To begin with, the excluded evidence was not cumulative.

It related directly to Turner's state of mind and mental condition that resulted in her decision to walk into the street where and under the circumstances she did. Absent the excluded evidence, the only evidence the jury heard as to those matters was opinion testimony from an expert called by the family. That testimony did not address the question of whether Turner had impaired thought processes or perception abilities. To the contrary, it implied that she was not impaired and saw Lundry's hand signal and interpreted it as an ordinary person would have-as a direction for her to continue walking across the street.

Further, the evidence was not heavily one-sided in favor of the family's position. The liability and percentage of responsibility questions largely turned on why Lundry did not see and avoid running over Turner, and why Turner did not avoid colliding with the plainly visible truck. While Lundry testified directly as to why he did not see Turner, the family's evidence as to why Turner acted as she did was largely speculative and based primarily on opinion evidence by the family's expert.

As to the second consideration, whether the excluded evidence was crucial to a key issue, it is unquestionable that Turner's state of mind and mental decision-making processes were crucial to the key issue of whether her decision to walk into the street met the standard of reasonable care. As noted above, the family's theory was that Turner began to cross the street some distance from the crosswalk because she saw Lundry's hand signal and thought he was signaling her to cross.

The family's expert witness testified that in his opinion Turner was looking at the truck and "she could probably see the guy doing the hand signals. Maybe she thought he was signaling her forward." (emphasis added). The attorney for the family asked another witness about Lundry's hand signal and also brought it up in closing argument.

The evidence offered by Lundry and JBS was designed to directly rebut the family's theory by showing that Turner did not walk into the street because she thought she had been given a signal to cross, but rather did so because she was impaired to the extent she did not stop walking even in light of the clearly visible moving truck. Evidence of Turner's impairment was crucial to the questions of whether her actions fell below the standard of reasonable care, and if so, the extent to which her impairment and actions made her responsible for the occurrence.

The jury found her 20% responsible even absent evidence that she was impaired. The proffered evidence likely would have affected the jury's allocation of responsibility to both Lundry and Turner, at a minimum. Thus, the trial court's erroneous exclusion of the evidence probably caused rendition of an improper judgment. That being so, the court of appeals erred by affirming the trial court's judgment. III. JBS's Direct Negligence JBS asserts that it cannot be held directly liable for two reasons. First, there is no evidence to support the negligent training theory of liability.

Second, a direct negligence claim may not be submitted as to a corporate employer if that employer has already conceded that it will be vicariously liable for any negligence found against its employee. As to the first issue, sufficiency of the evidence, the family claims JBS waived the issue by focusing its briefing on the second issue regarding its direct liability. The family also asserts that the evidence of JBS's failure to train Lundry as to the blind spot in front of his truck supports the jury's finding of direct negligence.

In responding to the second issue-that JBS cannot be held directly liable because it has admitted vicarious liability-the family argues that JBS waived the issue because it made the argument for the first time in this Court. In the alternative, the family asserts that the Legislature has mandated that the negligence of each responsible party must be considered, thus a defendant's direct negligence should be considered even if that defendant may also be vicariously liable for its employee's negligence. See TEX. CIV. PRAC. & REM. CODE § 33.011(6).

Thus, the family argues, they had the right to submit both Lundry's negligence and JBS's independent, direct negligence for the jury to consider in apportioning responsibility, and the fact that JBS agreed to be financially responsible for any judgment against Lundry did not make JBS any less independently negligent in causing Turner's death. A. Legal Sufficiency 1.

Preservation JBS stated in its brief in this Court that "[t]he court of appeals erroneously tagged JBS for direct liability based on a specious 'negligent training' theory for which there is no evidence to support." It made other no-evidence challenges in addition to the foregoing. For example, it urged that "[t]here is no evidence that JBS's training program is faulty," and challenged the trial court's failure to enter a judgment notwithstanding the verdict, which it argued in the trial court was appropriate based on the lack of evidence to support the jury's verdict.

We conclude that JBS preserved its legal sufficiency challenge. See Weeks Marine, Inc. v. Garza , 371 S.W.3d 157, 162-63 (Tex. 2012) ("Appellate courts must treat the statement of an issue 'as covering every subsidiary question that is fairly included.' " (quoting TEX. R. APP. P. 38.1(f) ) ). 2.

The Evidence "Evidence is legally insufficient to support a jury finding when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact." Gunn , 554 S.W.3d at 658.

We must consider all of the evidence " 'in the 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.' " Id. (quoting Bustamante v. Ponte , 529 S.W.3d 447, 456 (Tex. 2017) ). If the evidence offered to prove a vital fact's existence is "so weak as to do no more than create a mere surmise or suspicion," the record contains less than a scintilla. Id.

JBS asserts that there is no evidence its training program fell below the level which a reasonably prudent employer in the industry would have provided. It contends the evidence supporting the family's direct negligence claim was essentially that a blindspot existed in front of the truck and the JBS training manual did not reference it. JBS also argues that even if a blind spot was a contributing factor in Turner's death, the family did not provide any evidence that if JBS had specifically trained Lundry about the blind spot, the accident would not have happened. See Dangerfield v.

Ormsby , 264 S.W.3d 904, 912 (Tex. App.-Fort Worth 2008, no pet.) ("To establish a claim for negligent training, a plaintiff must prove that a reasonably prudent employer would have provided training beyond that which was given and that failure to do so caused his injuries."); LaBella v. Charlie Thomas, Inc. , 942 S.W.2d 127, 137 (Tex. App.-Amarillo 1997, writ denied) ("[T]he negligence in hiring, [training, or supervising] must be the proximate cause of the injuries to the plaintiff.").

In response, the family points to evidence that a 2014 JBS training manual indicated three specific blind spots, but did not mention a blind spot in front of the truck. Further, the family notes Lundry's testimony that he could not recall any specific training by JBS concerning the blind spot to the front of the truck. The family asserts that had Lundry been trained about the blind spot, he would have known that just because he could not see anything in front of him did not mean that there was nothing there.

The court of appeals credited this evidence on lack of training regarding a blind spot as legally sufficient to support the finding of direct negligence against JBS. 513 S.W.3d at 709- 10. As JBS notes, we "have not ruled definitively on the existence, elements, and scope of such torts and related torts such as negligent training and hiring." Waffle House, Inc. v. Williams , 313 S.W.3d 796, 804 n.7 (Tex. 2010). However, we have considered evidentiary challenges to jury findings regarding such claims. See, e.g. , Fifth Club, Inc. v. Ramirez , 196 S.W.3d 788, 790, 796-97 (Tex. 2006).

In those matters, we have required evidence that the employer's alleged negligence caused the injury. Id. at 796 ("There is no evidence to support the jury's finding that Fifth Club's lack of a background check of West caused the altercation or the injuries. As to negligence in hiring, the evidence indicates that even if Fifth Club had investigated West before hiring him, nothing would have been found that would cause a reasonable employer to not hire West.").

For the reasons expressed below, we agree with JBS that even if a cause of action for negligent training exists, the family presented no evidence that the lack of training regarding a blind spot in front of the truck was a proximate cause of Turner's injuries. Lundry testified that he did not see Turner, and when he started his turn he checked his left and right mirrors and made sure no one was in the crosswalk. The expert for JBS and Lundry testified that Turner was in Lundry's blind spot. The family's expert witness disagreed that there was a blind spot that prevented Lundry from seeing Turner.

The court of appeals agreed with the family that if Lundry had been trained about the claimed blind spot " 'he would have known that he could not assume that just because he did not see anything in front of him' did not mean there was not anyone in front of him." 513 S.W.3d at 710. The appeals court also agreed with the family that "the jury was free to conclude that JBS failed to use ordinary care when it instructed Lundry on how to safely operate the 18-wheeler ... when it failed to determine whether Lundry's seat position allowed him to see in front of the truck." Id.

The single negligence question in the jury charge asked whether "the negligence, if any, of those named below proximately cause[d] the occurrence in question." Lundry, JBS, and Turner were named. Proximate cause was defined as follows: "Proximate cause" means a cause that was a substantial factor in bringing about an occurrence and without which cause such occurrence would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the occurrence, or some similar occurrence, might reasonably result therefrom.

There may be more than one proximate cause of an occurrence. JBS disputes the family's claim that there was evidence it failed to train Lundry about the blind spot in front of the truck. But even assuming there was evidence it failed to do so, JBS further maintains there was no evidence that its failure was a cause in fact of the occurrence; that is, there was no evidence that had it so trained Lundry, the occurrence would have been avoided. We agree.

Assuming there was evidence that Lundry was not trained regarding the blind spot, there was no evidence that if he had received such training the occurrence would not have happened. Thus, there was no evidence that the alleged absence of training by JBS as to the blind spot in front of the truck proximately caused the occurrence. That part of the judgment based on the finding that JBS's direct negligence was a proximate cause of the occurrence is reversed.

In light of the foregoing, we need not and do not reach JBS's contention that its direct liability should not have been submitted to the jury because JBS did not contest its vicarious liability for Lundry's actions. IV. Conclusion We reverse the judgment of the court of appeals. We render judgment that the family take nothing against JBS on the direct negligence claim. We remand the claims against Lundry and those against JBS based on respondeat superior to the trial court for further proceedings consistent with this opinion. Justice Lehrmann and Justice Boyd did not participate in the decision.