Affirmed and En Banc Majority Opinion and En Banc Dissenting Opinions

filed May 18, 2023.

In The

Fourteenth Court of Appeals

NO. 14-18-00967-CV

WERNER ENTERPRISES, INC. AND SHIRAZ A. ALI, Appellants

V.

JENNIFER BLAKE, INDIVIDUALLY AND AS NEXT FRIEND FOR 

NATHAN BLAKE, AND AS HEIR OF THE ESTATE OF ZACKERY 

BLAKE, DECEASED; AND ELDRIDGE MOAK, IN HIS CAPACITY AS 

GUARDIAN OF THE ESTATE OF BRIANNA BLAKE, Appellees

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2015-36666

E N B A N C D I S S E N T I N G O P I N I O N

A trucking company and its employee appeal the trial court’s $116 million 

judgment awarding personal-injury damages to passengers in a pickup truck 

involved in a collision with a tractor-trailer owned by the company and driven by 

its employee. This court should (1) adopt the “Admission Rule,” under which an 

employer’s admission that an employee was acting in the course and scope of his
2

employment when the employee allegedly engaged in negligent conduct bars a

party allegedly injured by the employee’s negligence from pursuing derivative

theories of negligence against the employer, subject to an exemplary-damage 

exception; (2) conclude that the trial court erred in denying the employer’s motion 

for directed verdict as to all derivative theories against it because the employer 

admitted that its employee was acting in the course and scope of his employment 

and because the trial evidence was legally insufficient to support the plaintiffs’

gross-negligence allegation; (3) reverse the trial court’s judgment, (4) render 

judgment that the plaintiffs take nothing as to all of their derivative theories of 

negligence against the employer, and (5) remand the case to the trial court for a 

new trial. Instead, the en banc majority affirms the trial court’s judgment, issuing

an opinion in which the en banc majority erroneously concludes that even if this 

court chose to adopt the Admission Rule, the plaintiffs in today’s case would fall 

within the exemplary-damage exception to this rule because they pleaded gross 

negligence, even though the evidence was legally insufficient to support a grossnegligence finding. Therefore, I respectfully dissent.

I. THE WERNER PARTIES’ FIRST ISSUE

In the trial court below, appellees/plaintiffs Jennifer Blake, Individually and 

as Next Friend for Nathan Blake, and as Heir of the Estate of Zackery Blake, 

Deceased, and Eldridge Moak, in his capacity as Guardian of the Estate of Brianna 

Blake (collectively the “Blake Parties”) sued appellants/defendants Shiraz A. Ali

and Werner Enterprises, Inc. (collectively the “Werner Parties”). In their live 

pleading, the Blake Parties asserted negligence claims against Ali, alleging that Ali 

engaged in various acts or omissions that constituted negligence. The Blake Parties 

also asserted negligence claims against Werner. In addition to asserting that 

Werner was vicariously liable for Ali’s negligence under the doctrine of respondeat 
3

superior, the Blake Parties asserted various derivative theories of negligence 

against Werner. The Blake Parties alleged that Werner, in the operation and

maintenance of its vehicles and in its hiring, training, supervising, and directing of 

its employees and agents, owed a duty to them and the public at large to make use 

of Werner’s property and carry out Werner’s operations in a reasonably prudent 

manner, using ordinary care, skill, and expertise as would an ordinarily prudent 

commercial motor carrier under the same or similar circumstances, so as not to 

cause foreseeable and unreasonable risks of harm to others. The Blake Parties 

asserted that Werner engaged in numerous acts or omissions constituting 

negligence, including the following:

• failing to adequately train Ali on how to operate an eighteen-wheeler by 

failing to take various actions,

• failing to adequately supervise Ali while he was operating Werner’s 

commercial motor vehicle, 

• assigning and dispatching Ali, who did not have the training and experience 

to operate a commercial motor vehicle safely under winter-driving 

conditions, to operate a commercial motor vehicle as part of a driver team on

a “Just in Time” run, which Werner knew or should have known would 

require Ali to operate the Werner tractor-trailer without supervision (because 

his trainer, Ackerman, would have to be sleeping most of the time Ali was 

driving) through a large part of west Texas where freezing rain, ice 

accumulation, and extremely hazardous driving conditions were predicted, 

creating an unreasonably dangerous situation that posed an extreme risk of 

serious injury or death to others, 

• failing to monitor the weather and road conditions on Interstate 20 after Ali 

and Ackerman set out on the run from Dallas to Kettleman City, 

• failing to advise Ali of the extremely hazardous road and weather conditions 

in which he was driving, 

• failing to instruct Ali to take Interstate 40 rather than Interstate 20 due to the 

hazardous road and weather conditions predicted for and existing on 

Interstate 20, 

• failing to instruct Ali to slow to a crawl and exit the roadway as soon as it
4

was safe to do so upon encountering the icy road conditions, and

• prohibiting Ali from monitoring the CB radio and Outside Air Temperature 

gauge for road and weather conditions.

The Blake Parties also alleged that Werner’s conduct constituted gross negligence

that was a proximate cause of the occurrence in question, resulting in damages to

Jennifer Blake and her three children, Nathan, Brianna, and Zackery (collectively 

the “Blakes”). The Blake Parties sought actual damages against Ali and Werner, as 

well as exemplary damages against Werner. 

During trial Werner stipulated that Ali was acting in the course and scope of 

his employment at Werner. After the close of all the evidence, the trial court 

denied various motions for directed verdict asserted by the Werner Parties, 

including a motion for directed verdict as to the derivative-liability theories of 

recovery against Werner on the grounds that Werner admitted Ali was acting in the

course and scope of his employment at Werner and there was no evidence that 

Werner was grossly negligent.

The jury answered yes to each of the four liability questions. In response to 

Question 5, the jury found the following percentages of responsibility: 70% for

Werner acting through its employees other than Ali, 14% for Ali, and 16% for 

Salinas. Because the jury did not unanimously answer “yes” to any of the first 

three questions, the jury did not answer any of the questions regarding gross 

negligence and exemplary damages. The trial court rendered a final judgment 

based on the jury’s liability and damage findings and based on the percentages of 

responsibility found by the jury in response to Question 5. The amounts of actual 

damages plus prejudgment interest awarded in the trial court’s judgment against 

Werner total approximately $92 million. After adding post-judgment interest, the

total amount of the judgment against Werner currently exceeds $116 million.

On appeal this case was submitted to a three-justice panel with oral 
5

argument on October 23, 2019. More than twenty months later in July 2021, five 

justices on this court voted sua sponte to order en banc consideration in the first 

instance, without the issuance of any panel opinions, even though the panel had 

generated a majority opinion and a dissenting opinion, each of which stood ready 

to be issued. See Werner Enterprises v. Blake, No. 14-18-00967-CV, 2021 WL 

3164005, at *1 (Tex. App.—Houston [14th Dist.] Jul. 27, 2021) (published en banc

order). The en banc majority did not give any reasons for using this exceedingly 

rare procedure at such a late stage of the proceedings. See id. The court granted the 

parties leave to supplement their appellate briefing before this case was submitted

to the en banc court on October 28, 2021. By a 5-to-4 vote, the en banc court 

ordered this submission to be without oral argument, denying without explanation 

the Werner Parties’ request for oral argument to the en banc court. In its opinion 

today, the en banc majority continues to maintain its silence as to why the court 

went directly to en banc consideration without oral argument and without allowing

the panel opinions to issue. I disagree with the en banc majority that the en banc 

criteria are satisfied, but even presuming that the en banc criteria are satisfied, the 

en banc majority has not explained why it did not let the panel opinions issue and 

then grant en banc reconsideration, which has been the standard practice of this 

court in such situations. I dissented to the grant of en banc consideration in the first

instance for the reasons stated in my Dissent to Order and in Chief Justice 

Christopher’s Dissent to Order, which I joined. See Werner Enterprises, 2021 WL 

3164005, at *1–2 (Christopher, C.J., dissent to order); id. at *2–15 (Wilson, J., 

dissent to order).

Under their first appellate issue, the Werner Parties argue that (1) the trial 

evidence is legally and factually insufficient to show that Ali owed any duty to the 

Blakes; (2) the evidence is legally and factually insufficient to support any finding 

that Ali was negligent at the time of the occurrence in question or on December 30, 
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2014 (the “Accident Date”); (3) the evidence is legally and factually insufficient to 

support a finding that any negligence of Ali proximately caused the injuries in 

question, the accident in question, or the occurrence in question; and (4) Zaragoza 

“Trey” Salinas, III’s losing control of his pickup truck1 was the sole proximate 

cause of the accident in question. I agree with and join Part I of Chief Justice 

Christopher’s en banc dissenting opinion, in which she addresses these points. See 

ante at 2–3 (Christopher, C.J., en banc dissenting opinion). Though I do not agree 

with the en banc majority’s analysis of these arguments, I agree that the arguments 

lack merit and that the first issue should be overruled.

II. THE BLAKE PARTIES’ DERIVATIVE THEORIES OF NEGLIGENCE AGAINST 

WERNER FAIL AS A MATTER OF LAW UNDER THE ADMISSION RULE.

In their third issue, the Werner Parties note that the Supreme Court of Texas 

has not yet ruled definitively on the existence, elements, and scope of negligence 

theories against an employer for the negligent training, negligent supervision, 

negligent hiring, or negligent retention of an employee, or for related negligence 

theories, although intermediate courts of appeals have done so. See JBS Carriers v. 

Washington, 564 S.W.3d 830, 842 (Tex. 2018). The Werner Parties assert that, 

even presuming such theories generally are viable, the negligence theories against 

Werner based on the acts or omissions of Werner employees other than Ali that the

trial court submitted to the jury in Question 1 or Question 2 (the “Question 1 & 2

Theories”) fail as a matter of law for various reasons. In arguing one of these 

reasons, the Werner Parties assert that this court should adopt the rule that the 

Question 1 & 2 Theories failed as a matter of law because Werner admitted at trial 

that Ali was acting in the course and scope of his employment at Werner, thus 

1

Salinas was driving at a speed of 50 to 60 miles per hour while it was sleeting when Salinas 

lost control of his truck due to ice on the roadway. Salinas’s truck crossed the grassy median 

dividing the eastbound and westbound lanes of Interstate 20 and entered the westbound lanes.
7

subjecting Werner to vicarious liability under the doctrine of respondeat superior 

for all damages proximately cause by Ali’s negligence. In this opinion the term 

“Admission Rule” refers to the following rule: if an employer admits that an 

employee was acting in the course and scope of his employment when the 

employee allegedly engaged in negligent conduct, that admission bars a party 

allegedly injured by the employee’s negligence from pursuing derivative theories 

of negligence against the employer.

2

Before addressing whether this court should adopt the Admission Rule, it is 

helpful to specify some nomenclature for the analysis. Under the theory of 

respondeat superior, an employer is vicariously liable for the negligent acts or 

omissions of its employee if the employee’s negligent acts or omissions were 

within the course and scope of the employee’s employment. See Ineos USA v.

Elmgren, 505 S.W.3d 555, 565 (Tex. 2016). Thus, when an employee acts 

negligently within the course and scope of employment, respondeat superior 

permits a person injured by that negligent conduct to sue the employee’s employer 

directly to recover all damages to the injured person proximately caused by the 

employee’s negligence. See id.

Vicarious-liability theories such as respondeat superior are not the only 

means by which an injured party may seek to hold an employer liable for the

negligent conduct of an employee. Injured parties may also seek this end by

asserting various derivative theories of liability. See Nat’l Union Fire Ins. Co. v. 

Merchants Fast Motor Lines, 939 S.W.2d 139, 142 (Tex. 1997). Derivative 

theories are like vicarious theories in that under both theories, the injured party 

may hold an employer liable for the negligent conduct of an employee. See Blaine

v. National-Oilwell, L.P., No. 14-09-00711-CV, 2010 WL 4951779, at *8–9 (Tex. 

2

Some courts refer to this rule as the McHaffie Rule, based on the Supreme Court of Missouri’s 

opinion in McHaffie v. Bunch, 891 S.W.2d 822, 825–27 (Mo. 1995).
8

App.—Houston [14th Dist.] Oct. 30, 2018, no pet.). Thus, vicarious and derivative

theories are both dependent on a finding that the employee’s negligence

proximately caused damage to the injured party. See id. But, derivative theories are 

different because they involve the additional requirement that the injured party 

prove some type of negligence by the employer separate from the employee’s 

negligence, which is not required with vicarious theories like respondeat superior.

See id.

Under derivative theories like negligent training, negligent supervision, 

negligent hiring, and negligent retention, an employer may be liable for the

negligent acts or omissions of an employee if the employer engaged in certain 

negligent conduct.3 See id. (negligent hiring, negligent training, and negligent 

retention theories) (mem. op.); Verinakis v. Medical Profiles, Inc., 987 S.W.2d 90,

97–98 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (negligent hiring and 

negligent supervision theories). Because these theories require negligent conduct 

by the employer, the employer’s liability under these theories is not vicarious. See 

Blaine, 2010 WL 4951779, at *8–9; Verinakis, 987 S.W.2d at 97–98. These 

theories only operate to make the employer liable for an employee’s negligence, 

and even if an employer engages in negligent conduct under these theories, an 

injured party cannot recover damages against the employer if the employee’s 

negligence did not proximately cause damage to the injured party. See Alford v. 

Singleton, No. 14-17-00504-CV, 2018 WL 5621472, at *4–5 (Tex. App.—Houston 

[14th Dist.] Oct. 30, 2018, no pet.) (mem. op.); Blaine, 2010 WL 4951779, at *8–

9; Verinakis, 987 S.W.2d at 97–98. Therefore, these derivative theories do not 

3

Injured parties may also use vicarious theories and derivative theories in an attempt to hold an 

employer liable for torts other than negligence. Today’s case does not involve such an attempt,

so this opinion refers only to theories seeking to hold an employer liable for an employee’s 

negligence. 
9

describe an independent basis for recovering against the employer.

4 See Alford,

2018 WL 5621472, at *4–5; Blaine, 2010 WL 4951779, at *8–9.

Under certain circumstances, an injured party in an accident involving an 

employee may have a viable negligence claim against the employer without tying 

the recovery to any negligent conduct by the employee. For example, an employer 

might have negligence liability independent of an employee/driver’s negligence if 

the employer knew or should have known that one of the employer’s vehicles had

defective brakes, yet the employer allowed the employee to drive the vehicle in the 

course and scope of employment without warning the employee about the 

defective brakes. See Ferrer v. Okbamicael, 390 P.3d 836, 845–46 (Colo. 2017),

superseded by statute as stated in, Brown v. Long Romero, 495 P.3d 955, 957 n.2

(Co. 2021). If the brakes failed and caused an accident injuring a third party, it 

might be determined that the employee did nothing wrong but that the employer’s 

negligence proximately caused the accident and the third party’s injuries. See id. 

In such a situation, even if no negligence of the employee caused damage to the 

injured third party, the third party still may recover against the employer for the 

damages caused by the employer’s independent negligence. See id. Such 

independent theories are a third category of theories under which an injured party 

may seek to hold an employer liable. Sometimes courts or parties may refer to

derivative theories and independent theories collectively as “direct theories,” in 

contrast to vicarious theories. This opinion refers to each of the three categories 

separately: vicarious, derivative, or independent.

An employer’s admission that an employee was acting in the course and

scope of his employment when the employee allegedly engaged in negligent

conduct constitutes an admission that under the doctrine of respondeat superior, the 

4 For this reason, the better course is not to call these theories “independent theories” or

“independent claims.”
10

employer is vicariously liable for the damages proximately caused by the 

employee’s negligence. See Ineos USA, 505 S.W.3d at 565. Even if a negligent

driver is an employee acting outside the course and scope of employment, the 

employer may nevertheless be liable under one of the derivative theories. See

Green v. Ransor, Inc., 175 S.W.3d 513, 518–19 (Tex. App.—Fort Worth 2005, no

pet.). Similarly, an “employer” who hires an independent contractor may be liable 

for physical harm caused by the contractor’s tortious conduct if the plaintiff proves 

that the “employer” negligently hired the contractor. See Verinakis, 987 S.W.2d at

97–98; Mireles v. Ashley, 201 S.W.3d 779, 782 (Tex. App.—Amarillo 2006, no

pet.). But, derivative theories are dependent on the employee’s negligence, so

under any of the derivative theories, the injured party must still prove negligence

on the part of the employee or contractor. See Blaine, 2010 WL 4951779 at *9.

A. This court should adopt the Admission Rule.

The parties have not cited and research has not revealed a case from the 

Supreme Court of Texas or this court in which the court decides whether to apply

the Admission Rule. In JBS Carriers, the Supreme Court of Texas disposed of the

case without having to address petitioners’ argument based on the Admission Rule.

See JBS Carriers, Inc., 564 S.W.3d at 841, 843. In Adams Leasing Company v. 

Knighton, this court concluded that as to the third and fourth issues, appellants had 

failed to preserve error in their motion for new trial, as required by the procedural 

rules then in effect. See 456 S.W.2d 574, 576 (Tex. Civ. App.—Houston [14th 

Dist.] 1970, no writ). Because of this failure to preserve error, the Adams Leasing

court stated that “Points of error numbers 3 and 4 are not properly before this Court 

for consideration and both are overruled.” After overruling the issues based on 

failure to preserve error, the court made a statement relating to the fourth issue,

without citing any authority. See id. (stating, “Nor may a defendant charged with 

gross negligence in the entrustment of a vehicle preclude proof thereof by 
11

stipulating agency on the part of the person to whom such vehicle is entrusted.”).

Because the fourth issue was not before this court due to failure to preserve error, 

this gratuitous statement in Adams Leasing was not necessary to the determination

of the case and was an obiter dictum. See Air Routing Intern. v. Britannia Airways, 

Ltd., 150 S.W.3d 682, 692–93 (Tex. App.—Houston [14th Dist.] 2004, no pet.)

(holding that statement regarding the merits in prior case was an obiter dictum 

because the court had found that the objection was waived and therefore the prior 

case did not affect the applicable legal standard). An obiter dictum is not binding 

and has no precedential value. See Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 

399–400 (Tex. 2016); Air Routing Intern., 150 S.W.3d at 692–93. Thus, whether 

this court should adopt the Admission Rule is an issue of apparent first impression 

in this court that the en banc majority should address. 

1. The Development of the Admission Rule

Maryland’s highest court first articulated the Admission Rule in Houlihan v. 

McCall. See 78 A.2d 661, 664–65 (Md. 1951). In that case, plaintiffs who were 

injured in a traffic accident sued both the truck driver involved and the driver’s 

employer, seeking liability against the employer based on respondeat superior, 

negligent hiring, and negligent retention. Id. at 664. Before trial, the employer 

admitted an agency relationship with the truck driver, under which the employer 

was vicariously liable for the truck driver’s negligence. Id. The trial court admitted 

evidence of the driver’s driving record at trial, and the jury ultimately found for the 

plaintiffs. Id. at 664–65. Maryland’s highest court reversed, reasoning that because 

the employer admitted the driver was its agent, “it was quite unnecessary to pursue 

the alternative theory [of negligent hiring or retention] in order to hold the 

corporate defendant [liable].” Id. at 665. The court concluded the trial court erred 

by admitting the driver’s record because where agency is admitted, an employee’s 

driving record “can serve no purpose except to inflame the jury.” Id. at 666.
12

Three years after Houlihan, the Supreme Court of California applied the 

same rationale to a negligent-entrustment theory in Armenta v. Churchill. See 267

P.2d 303, 308–09 (Cal. 1954). There, a roadside worker was killed when a dump 

truck backed over him. Id. at 305. The decedent’s family sued the truck driver for 

negligence and his employer for negligent entrustment. Id. at 308. The employer 

admitted that the driver was acting in the course of his employment and 

acknowledged the employer’s vicarious liability for any tort liability of the driver.

Id. The Armenta court affirmed the trial court’s exclusion of evidence of the 

driver’s driving history. Id. at 309. The court reasoned that negligent entrustment

represented an alternative theory under which plaintiffs sought to impose upon the

employer the same liability as might be imposed upon the employee-driver. Id.

Because the employer’s admission of vicarious liability removed any issue of the 

employer’s liability for the driver’s alleged negligence, the Armenta court 

concluded there remained no material issue as to which evidence of the employee’s 

driving history could be legitimately directed. Id. at 308–09. Thus, the Armenta

court concluded that the trial court properly excluded this evidence. Id.

The most frequently cited case articulating the Admission Rule is McHaffie 

v. Bunch, a case involving facts ironically similar to today’s case. See 891 S.W.2d 

822 (Mo. 1995). McHaffie was a passenger in a vehicle that crossed the median of 

an interstate highway and collided with a tractor-trailer. Id. at 824. McHaffie’s 

guardian brought negligence claims against the driver of the vehicle and the driver 

of the tractor-trailer. Id. The guardian also asserted vicarious-liability theories

against the owner-lessor and the operator-lessee of the tractor-trailer, seeking to 

hold each liable for the tractor-trailer driver’s alleged negligence. Id. The operatorlessee of the tractor-trailer admitted its vicarious liability for the driver’s alleged 

negligence, conceding the driver was acting in the course and scope of his 

employment at the time of the collision. Id. The guardian claimed that the operator-
13

lessee of the tractor-trailer negligently hired and supervised its driver and presented 

evidence that the operator-lessee did not require the driver to have adequate 

experience, testing, training, and medical evaluations before driving its trucks. Id.

The jury assessed percentages of fault as to the various parties, including ten

percent collectively to the driver, the owner-lessor, and the operator-lessee of the 

tractor-trailer based on the driver’s negligence and the owner-lessor’s and 

operator-lessee’s vicarious liability, as well as ten percent to the operator-lessee 

based on negligent hiring. Id. at 825. On appeal, the defendants argued that it was 

improper to allow the guardian to pursue both respondeat-superior and negligenthiring theories against the operator-lessee. Id.

The McHaffie court agreed and adopted the Admission Rule as the “majority 

view.” Id. at 826. The court observed that derivative theories such as negligent 

entrustment and negligent hiring are forms of imputed liability, just as respondeat 

superior is a form of imputed liability, because the employer’s duty is dependent 

on and derivative of the employee’s conduct. Id. The court reasoned that to allow 

multiple theories for attaching liability to a single party for the negligence of 

another “serves no real purpose,” unnecessarily expends the “energy and time of 

courts and litigants,” and risks the introduction of potentially inflammatory, 

irrelevant evidence into the record. Id. The McHaffie court also explained that once 

an employer concedes it is vicariously liable for any negligence of its employee, 

the employer becomes strictly liable to the plaintiff for damages attributable to the 

employee’s conduct, regardless of the percentage of fault as between the employer 

and the employee. Id. The McHaffie court noted that potential exceptions might 

exist to the Admission Rule, such as (1) when the injured party has a viable 

independent theory of negligence against the employer, and (2) when the injured 

party seeks exemplary damages against the employer based on the employer’s 

conduct that is the basis of a derivative theory. Id. But, the McHaffie court did not 
14

have to address the existence of any such exceptions to the Admission Rule. Id. 

Five Texas intermediate courts of appeals have adopted the Admission Rule.

See Rosell v. Central West Motor Stages, 89 S.W.3d 643, 654–55 (Tex. App.—

Dallas 2002, pet. denied); Estate of Arrington v. Fields, 578 S.W.2d 173, 178–79

(Tex. App.—Tyler 1979, writ ref’d n.r.e.); Rodgers v. McFarland, 402 S.W.2d 

208, 210–11 (Tex. Civ. App.—El Paso 1966, writ ref’d n.r.e.); Luvual v. Henke &

Pillot, Division of Kroger Co., 366 S.W.2d 831, 838 (Tex. Civ. App.—Houston 

[1st Dist.] 1963, writ ref’d n.r.e.); Patterson v. East Tex. Motor Freight Lines, 349 

S.W.2d 634, 636 (Tex. Civ. App.—Beaumont 1961, writ ref’d n.r.e.). The parties 

have not cited and research has not revealed an opinion in which a Texas court has 

rejected the Admission Rule.

The highest courts of various other states have adopted the Admission Rule.

See Elrod v. G&R Const., 628 S.W.2d 17, 19 (Ark. 1982); Armenta, 267 P.2d at

309; Ferrer, 390 P.3d at 841–47; Wise v. Fiberglass Sys., 718 P.2d 1178, 1181–82 

(Idaho 1986); Sedam v. 2JR Pizza Enters., 84 N.E.3d 1174, 1177–79 (Ind. 2017);

Houlihan, 78 A.2d at 665; Nehi Bottling Co. v. Jefferson, 84 So.2d 684, 686 (Miss. 

1956); McHaffie, 891 S.W.2d at 824–26; Bogdanski v. Budzik, 408 P.3d 1156,

1161–64 (Wyo. 2018). Various intermediate appellate courts and United States 

District Courts in other states and the District of Columbia have done the same. See

Swift v. Old Dominion Freight Lines, 583 F.Supp.3d 1125, 1134–35 (W.D. Tenn. 

Jan. 31, 2022) (applying Tennessee law); Greene v. Grams, 384 F.Supp.3d 100,

102–06 (D. D.C. 2019) (applying District of Columbia law); Clooney v. Geeting, 

352 So. 2d 1216, 1220 (Fla. Dist. Ct. App. 1977); Ortiz v. N.M. State Police, 814 

P.2d 117, 120 (N.M. Ct. App. 1991).

5

5

In fairness, the cases are not unanimous. The highest courts in Illinois, Kansas, Kentucky, 

South Carolina, and Utah have not embraced the Admission Rule. See McQueen v. Green, 202 

N.E.3d 268, 277–80 (Ill. 2022); Marquis v. State Farm Fire & Cas., 961 P.2d 1213, 1224–25 
15

At least eight United States District Court judges have predicted that the 

Supreme Court of Texas would adopt the Admission Rule if this question were 

before the high court. See Bancpass v. Highway Toll Admin., 863 F.3d 391, 401 

(5th Cir. 2017) (holding that when there is no binding precedent from the Supreme 

Court of Texas on an issue of Texas law, a federal court must make a prediction of 

how the Supreme Court of Texas would resolve the issue); Graham v. Lewis, 2023 

WL 138923, at *2–3 (N.D. Tex. Jan. 9, 2023) (predicting that Supreme Court of 

Texas would adopt the Admission Rule); Ordonez v. Ausby, 2023 WL 310442, at 

*2–5 (W.D. Tex. Jan. 18, 2023); Robinson v. Melton Truck Lines, 2022 WL

174520, at *7 (W.D. Tex. Jan. 18, 2022); Ochoa v. Mercer Transp. Co., 2018 WL 

7505640, at *3 (W.D. Tex. December 12, 2018); Fuller v. Werner Enters., 2018 

WL 3548886, at *2–3 (N.D. Tex. July 24, 2018); Sanchez v. Transp. Intern.

Tamaulipecos, 2017 WL 3671089, at *2–3 (S.D. Tex. July 20, 2017); Sanchez v. 

Swift Transp. Co., 2016 WL 10587127, at *4 (W.D. Tex. Oct. 4, 2016); Williams v. 

McCollister, 671 F.Supp.2d 884, 888–89 (S.D. Tex. 2009).

2. Rationales for the Admission Rule

Derivative theories provide an alternate means of recovery when vicarious 

liability is unavailable against an employer because the employee was not acting 

within the scope of his employment at the time of his alleged negligence. See

Richard A. Mincer, The Viability of Direct Negligence Claims Against Motor 

Carriers in the Face of an Admission of Respondeat Superior, 10 Wyo. L. Rev. 

229, 232–33 & n.9 (2010). 

But, if the employer has admitted that under the doctrine of respondeat 

(Kan. 1998); MV Transp. v. Allgeier, 433 S.W.3d 324, 333–37 (Ky. 2014); James v. Kelly 

Trucking Co., 661 S.E.2d 329, 631–34 (S.C. 2008); Ramon v. Nebo Sch. Dist., 493 P.3d 613, 

618–21 (Utah 2021). The Supreme Court of Louisiana recently ruled similarly, although its 

decision was based on the unique language of the Louisiana Civil Code and the Louisiana Code 

of Civil Procedure. See Martin v. Thomas, 346 So.3d 238, 241–48 (La. 2022).
16

superior the employer is subject to vicarious liability for all damages proximately 

caused by the employee’s negligence, the derivative theories become superfluous. 

See id. Significantly, the derivative theories only operate to make the employer 

liable for the damages proximately caused by the employee’s negligence, and even 

if an employer engages in negligent conduct under these theories, an injured party 

cannot recover damages against the employer if the employee’s negligence did not 

proximately cause damage to the injured party. See Alford, 2018 WL 5621472, at 

*4–5; Blaine, 2010 WL 4951779, at *8–9; Verinakis, 987 S.W.2d at 97–98. An 

employer’s negligent conduct in hiring, training, supervising, retaining, or

entrusting is not a theory wholly independent of the plaintiff’s injuries, 

unconnected to the employee’s negligence. See Alford, 2018 WL 5621472, at *4–

5; Blaine, 2010 WL 4951779, at *8–9; Verinakis, 987 S.W.2d at 97–98. Thus, the 

derivative theories effectively impute the employee’s liability for his negligent 

conduct to the employer, in a manner similar to vicarious liability. See McHaffie,

891 S.W.2d at 825–26. Under either respondeat superior or a derivative theory, the 

liability of the employer is dependent on the negligence of the employee. See id. at 

826. This is true regardless of the percentage of fault as between the employer and 

the employee. See id. If the employer admits that the employee’s negligence is to 

be imputed to the employer, there is no need to prove that the employer is liable, 

and thus any derivative theories are duplicative and unnecessary. See id. If both 

theories proceed after the employer admits its vicarious liability, a jury would be 

allowed to assess or apportion a principal’s liability twice. See id.

The pursuit of both a vicarious-liability theory and a derivative theory 

against an employer after it has conceded respondeat-superior liability for the 

damages proximately caused by the employee’s negligence is also superfluous to

the plaintiff’s recovery; liability under the derivative theory will not increase the 

plaintiff’s recovery. If an employer admits respondeat-superior liability, the 
17

employer becomes liable for one hundred percent of the damages attributable to

the employee’s negligence. See Blaine, 2010 WL 4951779, at *8–9; Verinakis, 987 

S.W.2d at 97–98; McHaffie, 891 S.W.2d at 826. The fact that a plaintiff is the 

“master of her complaint” and may assert multiple theories of attaching liability to 

an employer for the employee’s conduct does not mean that a plaintiff should be 

permitted to introduce evidence supporting those multiple theories where such 

evidence would serve only to establish that which is already undisputed: that the 

employer is liable for the damages attributable to the employee’s negligence. See

Ferrer, 390 P.3d at 845.

Two other reasons weigh heavily in favor of adopting the Admission Rule. 

First, evidence necessary to prove derivative theories is likely to be unfairly 

prejudicial to the employee. See Houlihan, 78 A.2d at 664–65 (stating that “where

agency is admitted, [evidence of a driver’s record] can serve no purpose except to 

inflame the jury.”); Clooney, 352 So.2d at 1220 (asserting that “[s]ince the [counts

asserting derivative theories] impose no additional liability but merely allege a 

concurrent theory of recovery, the desirability of allowing these theories is 

outweighed by the prejudice to the defendants”).

In addition, there is a danger that a jury will assess the employer’s liability 

twice or award duplicative damages to the plaintiff if it hears evidence of both a 

negligence claim against an employee and derivative theory against the employer. 

See Mincer, supra, 10 Wyo. L. Rev. at 238; McHaffie, 891 S.W.2d at 826. This is

incompatible with the theory of respondeat-superior liability, under which the 

liability of the employer is fixed by the employee’s liability, and the plaintiff’s 

comparative fault does not differ based on the number of defendants. See Blaine, 

2010 WL 4951779, at *8–9; Verinakis, 987 S.W.2d at 97–98; Ferrer, 390 P.3d at

845. The Admission Rule prevents the fault of one party from being assessed twice 

and thereby avoids a “plainly illogical” result. See Ferrer, 390 P.3d at 845; 
18

McHaffie, 891 S.W.2d at 827. Today’s case illustrates this point. Without 

considering any derivative theories, the jury assessed Salinas’s percentage of 

responsibility at 55% and Ali’s percentage at 45%. When the derivative theories 

submitted under Question 1 were added to the jury’s consideration, but not the 

negligent-training and negligent-supervision theories, the jury set Salinas’s 

percentage of responsibility at only 38%, Ali’s percentage at 32%, and Werner 

acting through employees other than Ali at 30%. Under this assignment of

percentages of responsibility, Werner’s total responsibility increased 17%. Finally, 

in the allocation of responsibility on which the trial court rendered judgment, 

Salinas’s percentage of responsibility dropped to 16%, and Werner’s total 

responsibility increased to 84%. Thus, the jury’s consideration of all derivative

theories effectively increased Werner’s total percentage of responsibility by 39%, 

and by pushing Werner’s percentage over 50% effectively made Werner liable for 

100% of the damages recoverable by the Blake Parties, rather than the 45% of the 

Blake Parties’ damages under the percentages of responsibility set by the jury 

without considering any derivative theories. See Tex. Civ. Prac. & Rem. Code 

Ann. §33.013(b).

3. Compatibility with Civil Practice and Remedies Code Chapter 33

The Blake Parties argue that Chapter 33 of the Civil Practice and Remedies 

Code precludes application of the Admission Rule. Section 33.003 provides as 

follows:

(a) The trier of fact, as to each cause of action asserted, shall 

determine the percentage of responsibility, stated in whole numbers, 

for the following persons with respect to each person’s causing or

contributing to cause in any way the harm for which recovery of 

damages is sought, whether by negligent act or omission, by any

defective or unreasonably dangerous product, by other conduct or 

activity that violates an applicable legal standard, or by any

combination of these:
19

 (1) each claimant;

 (2) each defendant;

 (3) each settling person; and

 (4) each responsible third party who has been designated under

Section 33.004.

(b) This section does not allow a submission to the jury of a question

regarding conduct by any person without sufficient evidence to 

support the submission.

Tex. Civ. Prac. & Rem. Code Ann §33.003 (West, Westlaw through 2021 C.S.). 

The Blake Parties assert that section 33.003 requires that the jury determine the 

percentage of responsibility of a defendant/employer such as Werner, when the

trial evidence raises a fact issue as to whether the defendant/employer by negligent 

act or omission caused or contributed to cause in any way the harm for which the

plaintiffs seek recovery of damages. See id. The Blake Parties argue that the

Admission Rule conflicts with section 33.003 by preventing the jury from 

determining a percentage of responsibility for an employer such as Werner based 

on the employer’s negligent conduct under one or more derivative theories.

Courts that have addressed this issue have concluded that in enacting section

33.033, the Texas Legislature did not abrogate the Admission Rule or mandate that 

the jury determine a percentage of responsibility for defendants who are allegedly 

liable under theories of vicarious or derivative liability. See Williams, 671

F.Supp.2d at 889–92 (applying Texas law); Conkle v. Chery, No. 03-08-00379-

CV, 2009 WL 483226 at *4–5 (Tex. App.—Austin 2009, no pet.); Rosell, 89 

S.W.3d at 656–57; Loom Craft Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431, 432

(Tex. App.—Texarkana 1992, no writ); William D. Underwood & Michael D. 

Morrison, Apportioning Responsibility in Cases Involving Claims of Vicarious

Derivative, or Statutory Liability for Harm Directly Caused by the Conduct of

Another, 55 Baylor L. Rev. 617, 634–36, 642–50 (2003), but see Bedford v. Moore, 
20

166 S.W.3d 454, 459–63 (Tex. App.—Fort Worth 2005, no pet.). If under the 

Admission Rule, an employer is vicariously liable for its employee’s negligence 

and all derivative theories against the employer are barred, section 33.003 does not

mandate that the jury determine a percentage of responsibility for the vicariously 

liable employer. See Williams, 671 F.Supp.2d at 889–92; Conkle, 2009 WL 

483226 at *4–5; Rosell, 89 S.W.3d at 656–57; Loom Craft Carpet Mills, Inc., 823

S.W.2d at 432; William D. Underwood & Michael D. Morrison, supra, 55 Baylor

L. Rev. at 634–36, 642–50, but see Bedford v. Moore, 166 S.W.3d 454, 459–63.

If an employer has admitted respondeat-superior liability for any negligence 

of its employee, the employer is liable for the damages proximately caused by the 

employee’s negligence, regardless of the comparative fault between the employee

and the employer. See Williams, 671 F.Supp.2d at 890; Conkle, 2009 WL 483226 

at *4; McHaffie, 891 S.W.2d at 826; William D. Underwood & Michael D.

Morrison, supra, 55 Baylor L. Rev. at 634–36. The majority rule from other states 

supports the proposition that statutes like Chapter 33 do not preclude the adoption 

or application of the Admission Rule. See, e.g., Diaz v. Carcamo, 253 P.3d 535, 

544 (Cal. 2011) (reaffirming Armenta after the adoption of comparative negligence

and stating that “the objective of comparative fault is to achieve an equitable 

allocation of loss. That objective is not served by subjecting the employer to a 

second share of fault in addition to that assigned to the employee and for which the 

employer has accepted liability”); Ferrer, 390 P.3d at 847 (stating that “we join 

other courts in concluding that the [Admission Rule] accords with a comparative 

negligence regime”); Sedam, 84 N.E.3d at 1178–79 (stating that “[t]he

Comparative Fault Act provides that the jury must apportion fault to those “who 

caused or contributed to cause the alleged injury” . . . The [Admission Rule] is

consistent with this mandate because, as already stated, the [derivative claims] and 

respondeat superior claims are derived from the same negligent act of the 
21

employee”); McHaffie, 891 S.W.2d at 826 (holding that the Admission Rule

applies regardless of the comparative fault of the employer versus the employee); 

Swift, 2022 WL 1810721, at *5 (holding that the Admission Rule applies under 

Tennessee law despite Tennessee’s system of comparative fault).

The en banc majority should conclude that neither section 33.003 nor the 

proportionate responsibility regime of Civil Practice and Remedies Code chapter 

33 precludes this court from adopting or applying the Admission Rule.

4. Adopting the Admission Rule

For the reasons stated above, the en banc majority should join the other 

Texas intermediate courts of appeals that have adopted the Admission Rule.6 See

Rosell, 89 S.W.3d at 654–55; Estate of Arrington, 578 S.W.2d at 178–79; Rodgers,

402 S.W.2d at 210–11; Luvual, 366 S.W.2d at 838; Patterson, 349 S.W.2d at 636.

B. The en banc court should recognize an exemplary-damage exception to 

the Admission Rule.

Several courts applying Texas law and courts from other jurisdictions have 

concluded that the Admission Rule does not apply in cases in which the injured 

party pursues a negligence claim against the driver, asserts respondeat superior and

derivative theories against the employer, and seeks exemplary damages against the 

employer. See Monroe v. Freight All Kinds, Inc., 2020 WL 6589000, at *2–3 

(W.D. Mo. 2020) (applying Missouri law); Wilson v. Image Floring, 400 S.W.3d 

6 The Texas Legislature has enacted a statute adopting the Admission Rule as to personal-injury 

actions in which the claimant sues a defendant who owned, leased, or otherwise held or 

exercised legal control over a commercial motor vehicle or operator of a commercial motor 

vehicle involved in an accident. See Act of May 28, 2021, 87th Leg., R.S., ch. 785, § 4, 2021 

Tex. Sess. Law Serv. 1855, 1856 (codified at Tex. Civ. Prac. & Rem. Code § 72.051, eff. 

September 1, 2021). But the Legislature determined that this statute applies to such civil actions 

that are filed on or after September 1, 2021, without commenting on what rule applies to actions

that were filed before that date. See 2021 Tex. Sess. Law Serv. 1855, 1857–59 (codified at Tex. 

Civ. Prac. & Rem. Code § 72.054, eff. September 1, 2021); Graham, 2023 WL 138923, at *2, 

n.4. That statute does not apply to today’s case, and this court should adopt the Admission Rule 

without relying on the statute.
22

386, 391–94 (Mo. App. 2013); Williams, 671 F.Supp.2d at 888–89 (applying Texas

law); Rosell, 89 S.W.3d at 654–55; Estate of Arrington, 578 S.W.2d at 178–79.

The Blake Parties argue that, if this court adopts the Admission Rule, the court

should recognize the exemplary-damage exception and conclude that this case falls 

within that exception because the Blake Parties sought exemplary damages against

Werner based on its alleged gross negligence. The Werner Parties assert that this 

court should follow courts from other jurisdictions that have adopted the 

Admission Rule but concluded that no exemplary-damage exception to that rule 

exists. See Greene, 384 F.Supp.3d at 104; Ferrer, 390 P.3d at 847–48.

If an injured party seeks exemplary damages against the employer, the 

injured party must prove by clear and convincing evidence that the harm resulted

from the employer’s gross negligence, malice, or fraud. See Tex. Civ. Prac. & 

Rem. Code Ann. § 41.003(a), (b) (West, Westlaw through 2021 C.S.); Medina v. 

Zuniga, 593 S.W.3d 238, 247 (Tex. 2019). In a case tried to a jury, exemplary 

damages may be awarded only if the jury unanimously finds that the injured party

satisfied this burden of proof. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(d) 

(West, Westlaw through 2021 C.S.). In many cases, proving the driver’s conduct, 

for which the employer has admitted vicarious liability, will not by itself suffice to 

prove by clear and convincing evidence that the injured party’s harm resulted from 

the employer’s gross negligence, malice, or fraud. See Tex. Civ. Prac. & Rem. 

Code Ann. § 41.003(a), (b); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 

391 (Tex. 1997) (stating that “the general rule in Texas” is set out in Restatement 

of Torts section 909, which provides that “[p]unitive damages can properly be 

awarded against a master or other principal because of an act by an agent if, but

only if, (a) the principal authorized the doing and the manner of the act, or (b) the

agent was unfit and the principal was reckless in employing him, or (c) the agent 

was employed in a managerial capacity and was acting in the scope of 
23

employment, or (d) the employer or a manager of the employer ratified or 

approved the act”). Thus, an injured party may need to rely on the alleged conduct 

of the employer on which the injured party bases derivative theories as a basis for 

proving that the injured party’s harm resulted from the employer’s gross

negligence, malice, or fraud. If so, the derivative theories would not be 

superfluous, undermining a main basis for the Admission Rule. 

If the injured party proves an employer’s gross negligence, malice, or fraud

by clear and convincing evidence, the employer should be liable for exemplary 

damages, even if the employer admits to respondeat superior. Nonetheless, even if 

derivative theories are not superfluous because of the injured party’s request for 

exemplary damages, the other concerns discussed in section II.A.2. above still 

apply. Evidence necessary to prove derivative theories still is likely to be unfairly 

prejudicial to the employee. See Houlihan, 78 A.2d at 664–65; Clooney, 352 So.2d

at 1220. A danger still exists that the jury will assess the employer’s liability twice 

or award duplicative damages to the plaintiff if it hears evidence of both a 

negligence claim against an employee and a derivative theory against the 

employer. Mincer, supra, 10 Wyo. L. Rev. at 238. If a court recognizes an 

exemplary-damage exception to the Admission Rule, a danger exists that the 

exception may swallow the rule. See id. at 263. If an injured party only needs to 

allege gross negligence, malice, or fraud and seek exemplary damages to avoid

application of the Admission Rule, many injured parties may avoid the Admission 

Rule by so pleading.

The en banc majority should conclude that an exemplary-damage exception 

to the Admission Rule exists if the injured party seeks exemplary damages against 

the employer but that the exception does not apply if the trial evidence is legally

insufficient to support a finding by clear and convincing evidence that the harm 

resulted from the employer’s gross negligence, malice, or fraud. See Tex. Civ. 
24

Prac. & Rem. Code Ann. § 41.003(a); Robinson, 2022 WL 174520, at *2–5, *7

(recognizing exemplary-damage exception to Admission Rule under Texas law but 

granting summary judgment as to derivative theories under the Admission Rule 

because plaintiff did not raise fact issue as to plaintiff’s gross-negligence 

allegation); Ochoa, 2018 WL 7505640, at *2–3 (recognizing exemplary-damage

exception to Admission Rule under Texas law but granting summary judgment as 

to derivative theories under the Admission Rule because trial court had granted 

summary judgment as to plaintiff’s gross-negligence allegation); Sanchez, 2016

WL 10587127, at *2, *4 (same as Ochoa); Cahalan v. May Trucking, 2012 WL 

12915496, at *4–6 (D. Wyo. 2012) (holding under Wyoming law that an

exemplary-damage exception to Admission Rule did not apply because there was

no evidence that would support an award of exemplary damages against the 

employer); Rosell, 89 S.W.3d at 654–55 (recognizing exemplary-damage

exception to Admission Rule under Texas law); Estate of Arrington, 578 S.W.2d at

178–79 (same as Rosell); Mincer, supra, 10 Wyo. L. Rev. at 260–63.

The en banc majority doesn’t decide whether this court should adopt the

Admission Rule. Rather the majority concludes that it need not address this issue

because even if the Admission Rule were adopted, the rule wouldn’t apply to 

today’s case because the Blake Parties pled gross negligence and sought exemplary

damages. However, the trial evidence was legally insufficient to support a grossnegligence finding, and the trial court erred in denying Werner’s motion for

directed verdict. So is that all it takes to avoid the Admission Rule per the 

majority: merely seek exemplary damages? And even if the trial evidence is legally 

insufficient to support a recovery of exemplary damages, you still get to pursue 

derivative theories of negligence against the employer even though the employer

stipulates to respondeat-superior liability? Yet that’s precisely what the majority 

holds. The majority takes the easy way out and doesn’t really decide whether the 
25

Admission Rule applies.

C. This court should not make its decisions regarding the Admission Rule

apply prospectively only.

Though the Blake Parties have briefed various issues regarding the 

Admission Rule, they have not requested that this court make its rulings on these 

issues apply prospectively only. The en banc majority should address whether this 

court should exercise its discretion to make the decisions regarding the Admission 

Rule prospective only, so that they would not apply to today’s case. 

Judicial decisions generally apply retroactively. Carrollton-Farmers Branch 

Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 515 (Tex. 1992).

Occasionally, a court decides to exercise its discretion to depart from this rule by 

making its decision apply prospectively only. See id. at 515, 518. In CarrolltonFarmers Branch Independent School District, the Supreme Court of Texas

discussed and applied the Chevron analysis to determine whether its judicial 

decision would have only prospective application. See Carrollton-Farmers Branch

Indep. Sch. Dist., 826 S.W.2d at 515–521 (applying Chevron Oil Co. v. Huson, 404 

U.S. 97, 105–09 (1971)). The Chevron analysis is a three-step process:

First, the decision to be applied nonretroactively must establish a new 

principle of law, either by overruling clear past precedent on which 

litigants may have relied, or by deciding an issue of first impression

whose resolution was not clearly foreshadowed. 

Second, . . . [the court] must . . . weigh the merits and demerits in each 

case by looking to the prior history of the rule in question, its purpose 

and effect, and whether retrospective operation will further or retard

its operation. 

Finally, [the court must] weig[h] the inequity imposed by retroactive 

application, for where a decision of [the court] could produce 

substantial inequitable results if applied retroactively, there is ample 

basis in our cases for avoiding the injustice or hardship by a holding 

of nonretroactivity. 
26

Id. at 518 (quoting Chevron Oil Co., 404 U.S. at 106–07). 

This court’s decisions regarding the Admission Rule would not overrule any 

past precedent, and they would not decide an issue whose resolution was not 

clearly foreshadowed. In the trial court and on appeal, the parties have briefed 

various issues regarding the Admission Rule. At trial, the Blake Parties submitted 

evidence in an attempt to prove by clear and convincing evidence that the harm 

with respect to which the Blake Parties sought recovery of exemplary damages 

resulted from Werner’s gross negligence. Before this lawsuit was filed, five Texas 

intermediate courts of appeals had adopted the Admission Rule. See Rosell, 89

S.W.3d at 654–55; Estate of Arrington, 578 S.W.2d at 178–79; Rodgers, 402 

S.W.2d at 210–11; Luvual, 366 S.W.2d at 838; Patterson, 349 S.W.2d at 636. A 

federal district court in 2021 decided not to apply the Admission Rule to negligentsupervision claims against the United States of America under the Federal Tort 

Claims Act based on the considerations present in that case, which are not present 

in today’s case.

7 See Holcombe v. United States, 2021 WL 67217, at *27–28 (W.D. 

Tex. Jan. 6, 2021). The Holcombe decision issued after the parties fully briefed this 

7 Holcombe v. United States is not on point. See 2021 WL 67217, at *28 (W.D. Tex. Jan. 6, 

2021). The court in that case does not state that there is an exception to the Admission Rule for 

negligent-supervision claims. See id. On the contrary, the Holcombe court cites a case applying

the Admission Rule to a negligent-supervision claim under Texas law and indicates that the 

Admission Rule generally applies to negligent-supervision claims. See id. at *27 (citing 

Williams, 671 F.Supp.2d at 888–89). The Holcombe court decided not to apply the Admission 

Rule to the negligent-supervision claims in that case based on “the unique posture of claims 

brought under the [Federal Tort Claims Act] and practical considerations.” See id. at *27. The 

Holcombe court stressed that claims against the United States of America under the Federal Tort 

Claims Act are all based on respondeat-superior liability, which is different from the context in 

which the Admission Rule normally applies. See id. at *27–28. The Holcombe case involved 

claims brought against the United States of America stemming from the mass shooting in 

Sutherland Springs, Texas, and alleging that the shooter should not have been able to purchase 

the firearms he used in the shooting, but that negligent failures by the United States to collect, 

handle, and report required information about the shooter allowed him to do so. See id. at *1.
27

appeal. See id. Other than that case, research has not revealed any decision

applying Texas law in which the court declined to apply the Admission Rule. This 

court’s decisions regarding the Admission Rule would not “establish a new 

principle of law” as necessary for this court to exercise its discretion to limit the

application of the decisions under the first step of the Chevron analysis. See 

Galloway v. Atrium Medical Center, 558 S.W.3d 316, 322–23 (Tex. App.—

Houston [14th Dist.] 2018, no pet.). In addition, retrospective application of this 

court’s decisions regarding the Admission Rule would further the operation of this 

rule, and applying these decisions retroactively would not produce substantial 

inequitable results. See id. Under the applicable legal standard, it would not be 

appropriate for this court to exercise its discretion to make the decisions regarding 

the Admission Rule apply prospectively only. See id.

The en banc majority suggests in various parts of its opinion that the 

Admission Rule may not be applied to this case because this court had not yet 

adopted this rule when the trial court denied the Werner Parties directed-verdict

motion based on the Admission Rule. See ante at 33, 35, 37 (Hassan, J., en banc

majority). These suggestions contradict binding precedent under which judicial 

decisions based on the common law generally apply retroactively. See CarrolltonFarmers Branch Indep. Sch. Dist., 826 S.W.2d at 515; Galloway, 558 S.W.3d at 

322–23. Notwithstanding the en banc majority’s intimations to the contrary, even if

the law is unsettled or the issue is one of first impression, an appellate court may 

hold that a trial court erred or abuse its discretion if the trial court’s legal decision 

is incorrect under the appellate court’s interpretation of the law, even though no 

precedent bound the trial court to follow this interpretation when the trial court 

ruled. See In re Silver, 540 S.W.3d 530, 538 (Tex. 2018); Galloway, 558 S.W.3d at 

322–23.
28

D. The en banc majority should hold that as to the derivative theories the 

trial court reversibly erred in denying Werner’s motion for directed 

verdict based on the Admission Rule.

The Blake Parties asserted negligence claims against Ali. They asserted that 

at the time of Ali’s negligence, Werner employed Ali, and Ali was acting in the 

course and scope of his employment with Werner, so that Werner is vicariously 

liable for Ali’s negligence under the doctrine of respondeat superior. The Blake

Parties also asserted various Question 1 & 2 Theories against Werner. The Blake 

Parties alleged that the Werner Parties’ conduct constituted gross negligence that 

was a proximate cause of the occurrence in question resulting in damages to the 

Blake Parties. The Blake Parties sought actual damages against Ali and Werner, as 

well as exemplary damages against Werner.

The claims against Ali, the Question 1 & 2 Theories, and the Blake Parties’

requests for exemplary damages were tried in an unbifurcated jury trial. At trial 

Werner stipulated that Ali was acting in the course and scope of his employment 

with Werner when Ali engaged in the allegedly negligent conduct, thus admitting 

that under the doctrine of respondeat superior, Werner is vicariously liable for any 

negligent acts or omissions by Ali. See Ineos USA, LLC, 505 S.W.3d at 565. At the

close of the evidence at trial, Werner moved for a directed verdict as to all 

Question 1 & 2 Theories against Werner on the grounds that Werner admitted Ali 

was acting in the course and scope of his employment at Werner and there was no 

evidence at trial that Werner was grossly negligent. The trial court denied Werner’s 

motion. Under the Admission Rule, Werner’s admission that Ali was acting in the

course and scope of his employment with Werner when Ali engaged in the

allegedly negligent conduct bars the Blake Parties from pursuing the derivative

theories against Werner unless the exemplary-damage exception applies. See 

Cahalan, 2012 WL 12915496, at *4–6; Williams, 671 F.Supp.2d at 888–89; Rosell, 
29

89 S.W.3d at 654–55; Estate of Arrington, 578 S.W.2d at 178–79; Rodgers, 402 

S.W.2d at 210–11; Luvual, 366 S.W.2d at 838; Patterson, 349 S.W.2d at 636.

As mentioned above, this court should determine that the exemplary-damage 

exception to the Admission Rule does not apply if the trial evidence is legally 

insufficient to support a finding that clear and convincing evidence proves the 

harm with respect to which the injured party seeks recovery of exemplary damages 

resulted from the employer’s gross negligence, malice, or fraud. The Blake Parties 

did not seek exemplary damages based on any alleged malice or fraud by Werner. 

Instead, they sought exemplary damages based on Werner’s alleged gross 

negligence. Over Werner’s objection that there was no evidence to support the 

submission, the trial court asked the jury in Question 13 whether the jury 

unanimously found by clear and convincing evidence that the harm to the Blakes 

resulted from Werner’s gross negligence. Because the jury did not unanimously 

answer any of the liability questions, the jury followed the trial court’s instruction 

and did not answer this question.

On appeal, the Werner Parties argue that the derivative theories have no 

validity based on the Admission Rule. The Blake Parties assert that even if the 

court adopts the Admission Rule, the exemplary-damage exception applies because

they sought exemplary damages based on Werner’s alleged gross negligence. The 

Werner Parties assert that (1) no evidence supported a recovery by the Blake 

Parties of exemplary damages; (2) the Blake Parties’ trial strategy of inundating 

the jury with prejudicial arguments and evidence related to derivative theories 

against Werner rested largely on the legal question of whether they had a viable 

gross-negligence claim against Werner; (3) the Blake Parties did not possess a

valid gross-negligence claim; (4) the trial court erred in allowing the Blake Parties

to use their gross-negligence allegation to evade the Admission Rule; (5) there was 

no evidence of the required elements of gross negligence in today’s case; and (6)
30

the Werner Parties’ request for a directed verdict based on the Admission Rule

should have been granted. The Werner Parties have sufficiently briefed a challenge 

to the trial court’s denial of their motion for directed verdict as to all Question 1 &

2 Theories against Werner on the grounds that Werner admitted Ali was acting in

the course and scope of his employment at Werner and there was no evidence at 

trial that Werner was grossly negligent. See Perry v. Cohen, 272 S.W.3d 585, 588

(Tex. 2008) (holding court of appeals erred by concluding appellant failed to 

assign error as to special-exceptions order because, under liberal construction of 

appellant’s brief, appellant challenged the order by presenting argument 

challenging basis of this order, though appellant did not expressly challenge the 

order). Thus, this court should decide whether the trial evidence was legally 

sufficient to prove by clear and convincing evidence that the harm with respect to 

which the Blake Parties sought recovery of exemplary damages resulted from 

Werner’s gross negligence. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a).

This legal sufficiency review is conducted under the “clear and convincing” 

evidence standard. See U-Haul Intern., v. Waldrip, 380 S.W.3d 118, 137 (Tex. 

2012). “‘Clear and convincing’ means the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of 

the allegations sought to be established.” Tex. Civ. Prac. & Rem. Code Ann 

§41.001(2) (West, Westlaw through 2021 C.S.); Waldrip, 380 S.W.3d at 137. The 

Blake Parties had the burden to prove by clear and convincing evidence that the 

harm with respect to which the Blake Parties sought recovery of exemplary

damages resulted from Werner’s gross negligence. See Tex. Civ. Prac. & Rem. 

Code Ann. § 41.003(a). “‘Gross negligence’ means “an act or omission: (A) which

when viewed objectively from the standpoint of the actor at the time of its

occurrence involves an extreme degree of risk, considering the probability and 

magnitude of the potential harm to others; and (B) of which the actor has actual, 
31

subjective awareness of the risk involved, but nevertheless proceeds with 

conscious indifference to the rights, safety, or welfare of others.” Tex. Civ. Prac. & 

Rem. Code Ann §41.001(11); see Waldrip, 380 S.W.3d at 137.

Thus, gross negligence consists of both objective and subjective elements.

See Waldrip, 380 S.W.3d at 137. Under the objective component, “extreme risk” is 

not a remote possibility or even a high probability of minor harm, but rather the 

likelihood of the Blakes’ serious injury. See id. The subjective prong, in turn, 

requires that Werner knew about the risk, but that the Werner’s acts or omissions 

demonstrated indifference to the consequences of its acts. See id. An act or 

omission that is only thoughtless, careless, or not inordinately risky cannot be 

grossly negligent. See Medina, 593 S.W.3d at 249.

In determining whether the trial evidence was legally sufficient to prove by 

clear and convincing evidence that the harm with respect to which the Blake 

Parties sought recovery of exemplary damages resulted from Werner’s gross

negligence, this court should look at all the trial evidence in the light most 

favorable to the Blake Parties to determine whether a reasonable trier of fact could 

have formed a firm belief or conviction that this proposition was true. See 

Southwestern Bell Telephone Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004). To 

give appropriate deference to the factfinder’s conclusions and the role of a court 

conducting a legal sufficiency review, looking at the evidence in the light most 

favorable to the Blake Parties means that this court must assume that all disputed 

facts have been resolved in favor of the Blake Parties if a reasonable factfinder 

could do so. See id. A corollary to this requirement is that a court should disregard 

all evidence that a reasonable factfinder could have disbelieved or found to have 

been incredible. See id. This does not mean that a court must disregard all evidence 

that does not support this proposition. See id. Disregarding undisputed facts that do 

not support this proposition could skew the analysis of whether there is clear and 
32

convincing evidence. See id. If, after conducting its legal sufficiency review of the 

trial evidence, this court determines that no reasonable factfinder could form a firm 

belief or conviction that the harm with respect to which the Blake Parties sought

recovery of exemplary damages resulted from Werner’s gross negligence, then this

court must conclude that the evidence is legally insufficient. See id.

During closing argument, counsel for the Blake Parties pointed to the 

following as evidence of gross negligence: (1) section 2.6.2 of the Texas

Commercial Motor Vehicle Drivers Handbook states that on icy roads a

commercial driver must reduce the speed “to a crawl” and then stop driving as 

soon as the driver can safely do so, yet witnesses from Werner testified that section 

2.6.2. is a guideline not a rule or standard, thus indicating that Werner thinks

Werner and its drivers do not have to follow section 2.6.2. and that Werner and its

drivers do not follow this section; (2) despite an accident prior to the accident in 

question with facts similar to the accident in question, Werner continued to use a

business model in which it puts its least-experienced drivers in the most 

challenging circumstances, pairing them with trainers on “Just in Time” runs in 

which there is additional pressure to be on-time and in which the least-experienced 

driver often must be unsupervised because the trainer must be in the truck-tractor’s 

sleeper berth; (3) one of Werner’s safety directors testified that he was happy with 

what Ali did and that in less than one-half of one percent of serious crashes 

involving a Werner truck could Werner or its driver have done something that 

reasonably would have prevented the crash, thus showing that in 199 out of every 

200 serious crashes Werner says “We did nothing wrong”; (4) Werner’s head of

safety testified that Werner did nothing wrong and that Werner has not learned any 

safety lessons from the accident in question; (5) another one of Werner’s safety 

directors testified that Werner has made no changes in its truck-driving schools as 

a result of the accident in question; and (6) a lawyer for Werner testified that 
33

Werner made perfect decisions. After considering the trial evidence under the 

appliable standard of review, this court should conclude that the trial evidence was 

legally insufficient to prove by clear and convincing evidence that the harm with 

respect to which the Blake Parties sought recovery of exemplary damages resulted

from Werner’s gross negligence.

8 See Medina, 593 S.W.3d at 247–50; Reeder v. 

Wood Cnty. Energy, 395 S.W.3d 789, 797 (Tex. 2012); Waldrip, 380 S.W.3d at

137–41; Garza, 164 S.W.3d at 627; Robinson, 2022 WL 174520, at *2–4; Ruelas

v. Western Truck & Trailer Maintenance, 2019 WL 4060891, at *7–9 (W.D. Tex. 

2019); Cahalan, 2012 WL 12915496, at *4–6. Therefore, the exemplary-damage

exception does not apply, and this court should hold that the trial court erred in 

denying Werner’s motion for directed verdict as to all derivative theories against 

Werner on the grounds that Werner admitted Ali was acting in the course and 

scope of his employment at Werner and there was no evidence at trial that Werner 

was grossly negligent.

9 See Medina, 593 S.W.3d at 247–50; Robinson, 2022 WL

174520, at *2–4; Ruelas, 2019 WL 4060891, at *7–9; Nat’l Security Fire & Cas. 

Co. v. Hurst, 523 S.W.3d 840, 845–46 (Tex. App.—Houston [14th Dist.] 2017, 

pet. denied) (holding that trial court erred in denying appellant’s motion for 

8 The Blake Parties did not seek exemplary damages based on any alleged fraud or malice by 

Werner. In any event, the trial evidence was legally insufficient to prove by clear and convincing

evidence that the harm with respect to which the Blake Parties sought recovery of exemplary

damages resulted from Werner’s fraud or malice.

9 The en banc majority concludes that the trial evidence is legally sufficient to support (1) a 

finding of a negligence duty, breach of duty, and causation based on some of the Blake Parties’

derivative theories and (2) a finding that Werner’s negligent training and supervision

proximately caused the accident in question. See ante at 38–65 (Hassan, J., en banc majority). 

But Werner’s motion for directed verdict based on the Admission Rule did not challenge the 

sufficiency of the trial evidence to support the essential elements of any of these negligence 

theories, and the existence of legally sufficient evidence as to any of these elements would not 

preclude judgment as a matter of law in favor of Werner as to the derivative theories based on 

the ground that Werner admitted Ali was acting in the course and scope of his employment at 

Werner and there was no evidence at trial that Werner was grossly negligent. See Cahalan, 2012 

WL 12915496, at *4–6.
34

directed verdict and submitting a claim to the jury despite appellant’s argument 

that the claim was precluded as a matter of law by the defense of estoppel);

Cahalan, 2012 WL 12915496, at *4–6.

The Blake Parties contend that various independent theories against Werner 

were submitted to the jury and were a basis of the jury’s verdict, including theories

based on Werner’s alleged negligence in (1) having no system to inform Werner 

drivers of adverse weather and road conditions, (2) selecting the “dangerous route”

followed by the tractor-trailer Ali drove on the Accident Date; (3) failing to notify 

Ali of a winter storm warning update, and (4) prohibiting Ali from using his 

citizen’s band radio and his outside temperature gauge. The Blake Parties cite no 

cases holding that any of these theories constitutes an independent theory. To the 

extent that one or more of the Question 1 & 2 Theories was an independent theory, 

the trial court did not err in denying Werner’s motion for directed verdict because

the Admission Rule does not apply to independent theories.

10 See Ferrer, 390 P.3d 

at 845–46; Mincer, supra, 10 Wyo. L. Rev. at 260.

The en banc majority states that alleging a defendant engaged in gross 

negligence “entitle[s] Texas plaintiffs to seek exemplary damages, a theory that 

was presented to the jury.” Ante at 35 (Hassan, J., en banc majority). Though a 

plaintiff alleging gross negligence may seek exemplary damages, that pursuit must

come to an end and the gross-negligence issue must not be presented to a jury if 

there is legally insufficient evidence of gross negligence at trial and the defendant 

moves for a directed verdict on that ground, as happened in today’s case. See 

10 To adjudicate today’s appeal, this court need not and should not determine if any of the Blake 

Parties’ theories are independent theories. My dissenting colleague, Chief Justice Christopher, 

concludes that this court should not adopt the Admission Rule and indicates that adopting this 

rule would cause problems in health care liability cases in which a plaintiff asserts a vicarious 

liability theory and an independent theory against a hospital. In such a scenario, the Admission 

Rule would provide no impediment to the plaintiff pursuing both a vicarious liability theory and

an independent theory. See Ferrer, 390 P.3d at 845–46.
35

Richard v. Wiatt, No. 14-22-00236-CV, 2023 WL 3071161, at *2–6 (Tex. App.—

Houston [14th Dist.] Apr. 25, 2023, no pet. h.) (holding that trial court properly 

granted directed verdict as to plaintiff’s gross-negligence theory). A directed 

verdict eliminates a gross-negligence theory and prevents that theory from being 

submitted to the jury. See id. at *1–2. A trial court has a duty to grant a motion for 

directed verdict as to a theory of recovery supported by legally insufficient 

evidence. See Rounsaville v. Bullard, 276 S.W.2d 791, 794 (Tex. 1955); Cherqui v.

Westheimer Street Festival Corp., 116 S.W.3d 337, 343 (Tex. App.—Houston

[14th Dist.] 2003, no pet.). The trial evidence was legally insufficient to prove by 

clear and convincing evidence that the harm with respect to which the Blake

Parties sought recovery of exemplary damages resulted from Werner’s gross 

negligence. See Medina, 593 S.W.3d at 247–50; Robinson, 2022 WL 174520, at

*2–4; Ruelas, 2019 WL 4060891, at *7–9. The trial court had a duty to grant 

Werner’s motion for directed verdict based on the Admission Rule. See 

Rounsaville, 276 S.W.2d at 794; Cherqui, 116 S.W.3d at 343. The en banc

majority asserts that the Blake Parties’ gross-negligence claim was viable when the 

trial court denied Werner’s motion for directed verdict, but a gross-negligence 

claim as to which a trial court is duty-bound to grant a directed verdict is not

viable.11 See ante at 35 (Hassan, J., en banc majority); Rounsaville, 276 S.W.2d at 

794; Richard, 2022 WL 3071161, at *2–6; Cherqui, 116 S.W.3d at 343.

The en banc majority also asserts that Werner has failed to contend on 

appeal that the Blake Parties’ gross-negligence theory was not viable when the trial 

11 Of course, the same result would be true if a plaintiff asserted a gross-negligence claim and the 

trial court granted a defendant’s motion for summary judgment holding there was no evidence to 

support a gross-negligence claim. If the trial court holds by either summary judgment or directed 

verdict that there is insufficient evidence to support a gross-negligence claim, then the 

Admission Rule precludes submission of any derivative theory of negligence to the jury if the 

employer has stipulated that the employee was acting in the course and scope of his employment.
36

court denied Werner’s motion for directed verdict. Ante at 35 (Hassan, J., en banc

majority). In doing so, the en banc majority mischaracterizes the Werner Parties’

appellate contentions. The Werner Parties contend on appeal that (1) “[the Blake 

Parties’] strategy for inundating the jury with prejudicial arguments and evidence 

related to Werner rested largely on the legal question of whether they had a viable 

gross negligence claim against Werner”; (2) “[the Blake Parties] did not possess a

legally valid gross negligence claim, and the trial court erred in allowing them to

push that claim to evade the Admission Rule”; (3) “[t]here is simply no evidence

of the required elements of gross negligence here”; (4) “[the Werner Parties’] 

request for a directed verdict based on the “Admission Rule” should have been 

granted—it was the only possible hope for salvaging the trial. Without it, the 

damage to the record and the unfairness of the trial process could not possibly be 

undone”; (5) “[t]o the extent it exists, the gross-negligence exception to the

Admission Rule does not apply”; and (6) “[t]he baseless direct negligence claims 

were unquestionably harmful and justify a new trial.”

The en banc majority states that Werner moved for a directed verdict based 

upon “the alleged absence of evidence capable of supporting ‘the submission in 

this case of a direct liability claim against Werner because here the fact that Mr.

Ali was in the course and scope of his employment as a driver for Werner is not 

disputed.’” Ante at 33 (Hassan, J., en banc majority) (quoting part of Werner’s 

directed-verdict motion). The en banc majority then suggests that Werner is

materially misstating the law by failing to mention the exemplary-damage 

exception to the Admission Rule. See id. The en banc majority indicates that 

Werner’s motion for directed verdict relied upon the Admission Rule but did not

address the exemplary-damage exception. A quote from Werner’s motion for 

directed verdict shows that this is not the case. In this motion Werner asserted:

We also move for directed verdict on the grounds that there’s no 
37

evidence to support the submission in this case of a direct liability 

claim against Werner because here the fact that Mr. Ali was in the 

course and scope of his employment as a driver for Werner is not 

disputed. He was. He was our driver. He was driving our truck that 

day and there’s no evidence that Werner itself was grossly negligent.

And I will make a separate motion for directed verdict about that in a 

minute or two depending how quickly I talk, but we don’t believe 

there’s any evidence to support the submission of a direct liability 

claim against Werner in this case, so we move for directed verdict.

After going back on the record following an off-the-record discussion, 

counsel for Werner summarized the motion that he had made before the discussion

as follows: “I had moved for a directed verdict on the claims against Werner for 

direct liability because in this case Mr. Ali’s employment, he was in the course and

scope at the time of this accident. That’s not disputed. And there’s no evidence that 

Werner was independently grossly negligent in this case, so we move for directed 

verdict on those claims.” The trial court then denied Werner’s motion for directed 

verdict. Werner has not ignored or overlooked the exemplary-damage exception to 

the Admission Rule.

The en banc majority does not address whether the trial evidence was legally 

sufficient to prove by clear and convincing evidence that the harm with respect to 

which the Blake Parties sought recovery of exemplary damages resulted from 

Werner’s gross negligence. Instead, the en banc majority states that even if the

majority chose to adopt the Admission Rule, the majority would conclude that the 

Blake Parties’ allegation of gross negligence suffices to trigger the exemplarydamage exception to the Admission Rule, even if the trial evidence was legally 

insufficient to support a gross-negligence finding.12 See ante at 35 (Hassan, J., en 

12 The en banc majority cites Cristo v. C.R. England, Inc. in support of this proposition. See ante

at 33 (Hassan, J., en banc majority); 2021 WL 801340, at *4 (W.D. Tex. Jan. 7, 2021). The 

Cristo case does not support this proposition. See Cristo, 2021 WL 801340, at *4. Instead, the 

Cristo court simply states that other courts have concluded that they should dismiss as a matter 
38

banc majority). Allowing a pleading of gross negligence to trigger an exception to

the Admission Rule even though no legally sufficient evidence of gross negligence

has been admitted at trial effectively nullifies the Admission Rule in this context. If 

the Admission Rule bars derivative claims in a case in which the plaintiffs do not 

allege gross negligence, the result should be the same if the plaintiffs allege gross

negligence but the evidence at trial is legally insufficient to support this allegation. 

See Robinson, 2022 WL 174520, at *2–5, *7; Ochoa, 2018 WL 7505640, at *2–3;

Sanchez, 2016 WL 10587127, at *2, *4; Cahalan, 2012 WL 12915496, at *4–6.

The en banc majority claims that its version of the exemplary-damage

exception maintains the uniformity of this court’s jurisprudence in light of this 

court’s opinion in the Adams Leasing case. See ante at 35 (Hassan, J., en banc

majority); Adams Leasing, 456 S.W.2d at 576 (stating, “Nor may a defendant 

charged with gross negligence in the entrustment of a vehicle preclude proof 

thereof by stipulating agency on the part of the person to whom such vehicle is 

entrusted.”). As discussed above, this gratuitous statement in the Adams Leasing

opinion was not necessary to the determination of the case and was an obiter 

dictum; therefore, this statement does not form a part of this court’s jurisprudence.

See Air Routing Intern., 150 S.W.3d at 692–93. In any event, this statement does 

not conflict with the adoption of the Admission Rule with an exemplary-damage

exception that does not apply if the trial evidence is legally insufficient to support a

of law derivative theories of negligence if the employer does not dispute that its employee was 

acting in the course and scope of employment and if no viable gross-negligence claims remain.

See id. The Cristo court granted summary judgment as to both the request for exemplary 

damages and as to the plaintiff’s derivative theories of negligence. See id. at *2–6. The 

availability of summary judgment if the summary-judgment evidence does not raise a fact issue

on gross negligence and the employer has admitted that its employee was acting in the course 

and scope of employment does not mean that an employer may not obtain a directed verdict if 

the trial evidence does not raise a fact issue on gross negligence and the employer has admitted

that its employee was acting in the course and scope of employment. The Cristo court did not 

state or imply that an employer may not obtain a directed verdict on a plaintiff’s requests for 

exemplary damages and derivative theories of negligence. Id.
39

gross-negligence finding. See Adams Leasing, 456 S.W.2d at 576. The Adams 

Leasing court correctly stated that a stipulation by an employer that its driver was 

acting as its agent does not render inadmissible evidence otherwise admissible as

part of the plaintiff’s attempt to prove the employer’s alleged gross negligence. See

Adams Leasing, 456 S.W.2d at 576. If an employer does not want evidence 

relevant only to its alleged gross negligence or to a derivative theory to be 

admissible at trial, then the employer may admit that its employee was acting in the 

course and scope of employment and file a motion for summary judgment 

asserting there is no evidence of gross negligence and seeking summary judgment 

as to any derivative theories under the Admission Rule. See Robinson, 2022 WL

174520, at *2–5, *7; Sanchez, 2016 WL 10587127, at *2, *4; Cahalan, 2012 WL 

12915496, at *4–6. However, so long as a plaintiff’s exemplary-damage request

and a derivative theory are before the court, then the employer’s admission that the 

employee was acting as its agent or in the course and scope of employment does 

not render inadmissible otherwise admissible evidence as part of the plaintiff’s

attempt to prove the employer’s alleged gross negligence or a derivative theory.

The en banc majority also appears to conclude that a directed verdict may 

only be based on the legal insufficiency of the trial evidence to support an essential 

element of the challenged liability theory and that a directed verdict may not be 

based on a legal rule that bars recovery under the challenged liability theory based 

on the trial evidence. This conclusion is erroneous. See Hurst, 523 S.W.3d at 

845–46 (holding that trial court erred in denying appellant’s motion for directed 

verdict and submitting a claim to the jury despite appellant’s argument that the 

claim was precluded as a matter of law by the defense of estoppel); Deutsch v. 

Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189–90 (Tex. App.—Houston 

[14th Dist.] 2002, no pet.) (holding that the trial court did not err in granting 

directed verdict as to certain breach-of-fiduciary-duty claims based on the rule
40

against dividing or fracturing a negligence claim against an attorney, without any 

determination that the trial evidence was legally insufficient to support an essential 

element of the breach-of-fiduciary-duty claims at issue).

The trial court based its judgment in part on the jury’s finding in response to 

Question 1, under which the Blake Parties argued various derivative theories, and

the jury’s finding in response to Question 2 based on the derivative theories of 

negligent supervision theory and negligent training. If the trial court had granted

Werner’s motion for directed verdict as to the derivative theories, the trial court 

would not have submitted the derivative theories in Questions 1 and Question 2 to

the jury. The trial court erred in not granting Werner’s motion for directed verdict 

as to these derivative theories. In rendering judgment, the trial court relied on the 

jury’s determination of percentages of responsibility in Question 5, based on the 

jury’s consideration of Werner’s negligence as found by the jury in response to

Questions 1 and 2. After considering the Blake Parties’ many derivative theories 

the jury assessed Werner’s responsibility at 70%, Ali’s responsibility at 14%, and 

Salinas’s responsibility at 16% in Question 5. In Question 7, considering only the 

responsibility of Ali and Salinas, the jury assessed Ali’s responsibility at 45% and 

Salinas’s responsibility at 55%. If the trial court had granted the motion for 

directed verdict, the Blake Parties would not have been able to argue at length 

during closing arguments about Werner’s alleged negligence based on derivative 

theories, and the jury would not have answered Questions 1, 2, 5, and 6. These 

arguments and questions concentrated the jury’s attention on the derivative 

theories and probably inflamed the jury against Werner, as shown by the jury’s 

finding in Question 5 (on which the trial court rendered judgment) that Werner’s

negligence under the derivative theories caused or contributed to the Blake Parties’ 

injuries five times as much as Ali’s negligence did and more than four times as 

much as Salinas’s negligence did. See Shick v. Ill. Dep’t of Human Servs., 307 F.3d 
41

605, 611–14 (7th Cir. 2002). A reasonable probability exists that the trial court’s 

error affected the jury’s damage findings in response to Questions 8 through 12. 

See Mincer, supra, 10 Wyo. L. Rev. at 238; Shick, 307 F.3d at 611–14; McHaffie,

891 S.W.2d at 826. Thus, the trial court’s error in denying Werner’s directedverdict motion as to the derivative theories probably caused the rendition of an 

improper judgment. See Tex. R. App. P. 44.1(a); Kroger Co. v. Guinn, No. 05-04-

01464-CV, 2005 WL 1950887, at *5 (Tex. App.—Dallas Aug. 16, 2005, no pet.) 

(mem. op.). The trial court reversibly erred in denying Werner’s motion for 

directed verdict as to the derivative theories and in failing to render judgment that 

the Blake Parties take nothing as to all of their derivative theories, including the

negligent-training and negligent-supervision theories.

13 The trial court’s error 

affects all of the matter in controversy and does not affect a part that is severable 

without unfairness to the parties; therefore, this court may not order a new trial 

only as to the part affected by the error. See Tex. R. App. P. 44.1(b); Ginn v. 

Pierce, 595 S.W.3d 762, 768–69 (Tex. App.—Houston [14th Dist.] 2019, pet. 

denied). This court should sustain the Werner Parties’ Admission Rule arguments

discussed above, reverse the trial court’s judgment, render judgment that the Blake 

Parties take nothing as to all of their derivative theories of negligence, and remand 

the case to the trial court for a new trial, as required by the interests of justice.14

13 The en banc majority asserts that this dissenting opinion “insists [this court] must overturn the 

jury’s verdict based on the trial court’s implicitly erroneous admission of evidence that tended to 

prove the Blakes’ allegations concerning gross negligence and negligent supervision.” Ante at 37

(Hassan, J., en banc majority). By thinking that this dissent has erroneously concluded that the 

trial court abused its discretion in admitting evidence the en banc majority misunderstands this

opinion. At no point does this dissenting opinion explicitly or implicitly address whether the trial 

court erred in making any evidentiary ruling. This dissent’s conclusion that the trial court 

reversibly erred in denying Werner’s motion for directed verdict does not imply that the trial 

court erred in admitting any evidence, and the conclusion is reached after consideration of all the 

evidence admitted at trial under the standard of review applicable to motions for directed verdict.

14 As explained in this opinion, I conclude that this court should reverse the trial court’s judgment 

based on the Admission Rule. If the Supreme Court of Texas were to determine that the trial 
42

See Tex. R. App. P. 43.3; Ginn, 595 S.W.3d at 768–69; Kroger Co., 2005 WL 

1950887, at *5.

Instead, the en banc majority affirms the trial court’s judgment, issuing an 

opinion in which the en banc majority erroneously concludes that even if this court 

were to adopt the Admission Rule, the exemplary-damage exception to this rule 

would apply because the Blake Parties pleaded gross negligence, even though the 

trial evidence was legally insufficient to support a gross-negligence finding. As 

Chief Justice Christopher points out in her dissenting opinion, the en banc majority

also applies a negligence-duty analysis that conflicts with the Supreme Court of 

Texas’s requirement that courts imposing a negligence duty on employers must 

specifically state the negligence duty in question and may not be apply a generalnegligence duty. See ante at 38–53 (Hassan, J., en banc majority); ante at 5–6 

(Christopher, C.J., en banc dissenting opinion); Pagayon v. Exxon Mobil Corp.,

536 S.W.3d 499, 506 (Tex. 2017).

III. CONCLUSION

The en banc majority should adopt the Admission Rule and conclude that an

exemplary-damage exception to the Admission Rule exists if the injured party 

seeks exemplary damages against the employer based on the employer’s alleged 

gross negligence, malice, or fraud, but that the exception does not apply if the trial 

evidence is legally insufficient to support a finding that clear and convincing

evidence proves the harm with respect to which the injured party seeks recovery of 

exemplary damages resulted from the employer’s gross negligence, malice, or 

fraud. Under the applicable legal standard, it is not appropriate for this court to

exercise its discretion to make its decisions regarding the Admission Rule apply 

court’s judgment should not be reversed based on the Admission Rule, then I conclude that 

reversal and remand for a new trial would be warranted for the reasons stated in Part II.A of 

Chief Justice Christopher’s en banc dissenting opinion. Therefore I join Part II.A.
43

prospectively only.

The trial court reversibly erred in denying Werner’s motion for directed 

verdict as to derivative theories and in failing to render judgment that the Blake

Parties take nothing as to all of the derivative theories, including the negligenttraining and negligent-supervision theories. This court should sustain the Werner 

Parties’ Admission Rule arguments, reverse the trial court’s judgment, render 

judgment that the Blake Parties take nothing as to all of their derivative theories of 

negligence, and remand the case to the trial court for a new trial.15 Because the en 

banc majority instead affirms the trial court’s judgment, I respectfully dissent. 

/s/ Randy Wilson

Justice

En banc court consists of Chief Justice Christopher and Justices Wise, Jewell, 

Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. Justice Hassan authored 

the En Banc Majority Opinion, in which Justices Bourliot, Zimmerer, Spain, and 

Poissant joined. Chief Justice Christopher authored an En Banc Dissenting

Opinion, in which Justices Wise, Jewell, and Wilson joined as to Part I and Part 

II.A for the reasons stated in page 6 and footnote 14 of Justice Wilson’s En Banc 

Dissenting Opinion. Justice Wilson authored an En Banc Dissenting Opinion, in 

which Justices Wise and Jewell joined.

15 When a party receives favorable jury findings on two or more theories of recovery that yield 

different damage amounts, that party may elect the theory of recovery upon which the party 

wishes to recover. See Birchfield v. Texarkana Mem. Hosp., 747 S.W.2d 361, 367 (Tex. 1987).

By electing to recover based on one theory, the prevailing party does not waive any alternative

theories of recovery and may seek recovery under one of these alternative theories in a motion

for rehearing if the appellate court reverses the judgment. See Boyce Iron Works v. Sw. Bell Tel.

Co., 747 S.W.2d 785, 787 (Tex. 1988). After a party seeks recovery under an alternative theory

of recovery in a motion for rehearing, any opposing party may respond and assert all objections

or arguments that the opposing party has to rendition of judgment based on the alternative

theory. See Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 650, n. 4 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied). Thus far in this case, no party has addressed whether the Blake

Parties properly could make a Boyce Iron Works election to recover based on the jury’s finding

in response to Question 6 or in response to Question 7. See Energy Maintenance Services

Group I v. Sandt, 401 S.W.3d 204, 218, n.9 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).

Because this issue is not before the court today, I do not take any position on it. See id.