Texas high court to determine if crash was ‘substantially certain’ to occur

The Texas Supreme Court heard oral arguments in a wrongful death case that centers on the question of whether or not a trucking company was “substantially certain” that a fatal crash would occur based on overworking the driver.

On Feb. 26, attorneys for Edinburg, Texas-based Mo-Vac Service Co. and the estate of Fabian Escobedo, a former Mo-Vac driver, presented oral arguments to the Texas Supreme Court. In August 2018, a Texas appellate court overturned a lower court’s ruling dismissing the case, allowing the family its day in court.

Mo-Vac petitioned to the Texas Supreme Court to hear the case, which it granted. The case is based on the definition of “intentional injury” and the definition of “substantially certain” within that definition.

The crash

At about 3 a.m. on May 30, 2012, Escobedo was driving one of Mo-Vac’s 2007 Mack trucks pulling a 1985 Reynolds tank trailer. Escobedo was “extremely tired and exhausted,” according to the complaint. As a result, he either fell asleep or lost control of his ability to control the truck. Escobedo sustained trauma to his torso and died due to positional asphyxiation.

Escobedo’s family filed a lawsuit against Mo-Vac for wrongful death. Mo-Vac argued that there was no evidence of intentional acts and no evidence of conscious pain and suffering. The company filed a motion for summary judgment, effectively dismissing the family’s claims without trial. The district court sided with Mo-Vac.

Urbano Garza, Mo-Vac terminal manager, testified how the oil boom in Texas led to a situation where the company “could not keep up with demand for drivers,” forcing dispatcher, managers like himself and drivers like Escobedo to overwork and falsify logs. Garza said he informed upper management that such practices would inevitably kill a driver.

“Management of the company forced upon me and the dispatchers a clear directive to have the drivers work unsafe hours rather than let a competitor get the jobs, which were demanded by our customers,” Garza stated in the affidavit.

Mo-Vac’s argument

J. Joseph Vale, an attorney representing Mo-Vac, began oral arguments by pointing out that the company is a historically safe one. Mo-Vac has been in business for 60 years with 11 locations in Texas. Vale said it is not a “fly-by-night” company. Rather, Mo-Vac invests in its drivers and machinery. In fact, Escobedo had drove for the company for 12 years.

Mo-Vac said there was no evidence of forced driving. Two days prior to the crash, Vale said, Escobedo had opportunities for plenty of rest. He was completely off duty on May 28 for 11.5 hours. Escobedo had 22.5 hours either completely off duty or “off duty and waiting” within the two days leading to the crash. He only drove nine to 15 hours in those two days, Vale said.

“This is not a situation where Mr. Escobedo was driving endlessly without a stop for hours and miles,” Vale said. “Mr. Garza told the state troopers in the report that Mr. Escobedo crashed when he was driving from Bustamante, Texas, to Zapata, Texas, which is a 15-mile route.”

In order for the family to have a claim, they have to prove intent rather than just gross negligence. Gross negligence is defined by law as “conscious indifference to an extreme risk.” In contrast, “intent” must pass the substantially certain test.

Although “intent” is known to mean consequences that someone desires to bring about, tort law has restated that intent is not “limited to consequences which are desired.” Rather, if someone “believes that the consequences are substantially certain to result from” the act and still goes ahead, he or she is treated by the law as if they had in fact desired to produce the result.

Vale argued that Mo-Vac would need to know that a driver was in such an impaired position that he was going to crash. Even with Garza’s testimony, Vale said there is no limit to intent without identifying a specific driver.

If the court agreed that Mo-Vac should be substantially certain about an inevitable crash, the next argument based on Vale’s claims is it could not know which was going to crash and when. The court then asked Vale if the Boston Marathon bomber intended to kill the specific people who died as a result of the bomb.

The court offered another hypothetical about a policy where the company fed its drivers mimosas every morning before driving. Would that be different? Vale argued that would be gross negligence, not intent. According to Vale, intent requires more certainty of what is going to happen. As dangerous as it is, drinking and driving will not lead to injury with any certainty, he argued.

Escobedo’s crash was ‘substantially certain’ to happen

Representing Escobedo, attorney Stuart Starry started off by declaring he was tired from not sleeping well and felt hazy.

“If you deprive a driver of oxygen, you’re committing an intentional act that you know can create a risk of an accident,’ Starry said.

Jumping off from the mimosa hypothetical, Starry said it was not one mimosa they were served but 10 mimosas. According to Starry, Escobedo worked 137 hours in the eight days before he crashed. He drove at midnight and crashed at 3 a.m. because he was deprived of sleep.

The court asked Starry where is the line between failing to provide a safe workplace and intention of consequences to result. Starry reminded the court there are two kinds of intent: purpose-based intent and knowledge-based intent.

Starry said that in this case there was not just many hypothetical mimosas but also a manager telling upper management they are going to get someone killed. Furthermore, a compliance manager responded by saying, “We’ll cross that bridge when we come to it.” When each driver was dispatched, there was a knowledge within the company that the hours were too many, Starry said.

In response to the Boston Marathon bomber analogy, Starry agreed with the justices that intent is when someone believes an event can occur to a particular victim or someone within a small class of potential victims within a localized area. In this case, the localized area was the truck cab.

The court had to decide line between knowledge-based intent, or being substantially certain, and gross negligence.

Starry emphasized that gross negligence involves “extreme risk.” That could be a 30% or 10% chance of death. However, a 95% chance is closer to being substantially certain.

The court put out another hypothetical. What if it was undisputed that there was a 50% chance of Escobedo being killed? Is that knowledge-based intent? What about 75% or 90%?

Starry explained it is all about testimony, not odds.

“Intent is a state of mind,” Starry said. “It is not a state of reality.”

Starry said the state of mind guides the courts, hence the emphasis on testimony. The substantially certain test is not based on the odds of occurrence, he argued. Rather, it is based on whether the person believes it is substantially certain that the event is going to happen.

If Texas Supreme Court upholds the appellate court’s opinion, the case goes back to the trial court for further proceedings. A ruling in favor of the lower court’s original summary judgment could effectively end the case in a dismissal in favor of Mo-Vac.