Supreme Court of Texas

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No. 20-0737

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United Rentals North America, Inc.,

Petitioner,

v.

Pamela Evans, Individually and as Administrator for the Estate 

of Clark Brandon Davis, and Dominic Jones, 

Respondents

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

═══════════════════════════════════════

Argued November 30, 2022

JUSTICE BLACKLOCK delivered the opinion of the Court.

JUSTICE LEHRMANN did not participate in the decision.

Clark Davis died in a terrible traffic accident on Interstate 35 

near Salado. As Davis approached an overpass, a large piece of 

equipment carried on a flatbed trailer struck the overpass. The falling 

debris crushed Davis’s vehicle, and he died quickly. His estate, his 

mother, and his son brought wrongful death and survival claims against 
2

several defendants. The case proceeded to trial against one defendant, 

United Rentals.

During jury selection, counsel for the plaintiffs stated that “the 

African-American female is the most favorable juror for this case.” This 

announced preference was consistent with the plaintiffs’ peremptory 

strikes of four white men and one Hispanic man. After a verdict for the 

plaintiffs, the district court rendered a substantial money judgment, 

which the court of appeals affirmed.

We hold that a new trial is required. Most Batson claims ask 

courts to engage in the speculative enterprise of inferring race-based 

motivations from a record that is facially race neutral. This is the rare 

case in which the record contains an admission of counsel’s preference 

for jurors of a certain race. We last encountered such a record in Powers 

v. Palacios, in which counsel admitted that a juror’s race “figured into” 

the decision to strike her. 813 S.W.2d 489, 490 n.1 (Tex. 1991). We 

summarily ordered a new trial in that case, and we do the same today.

In so doing, we do not impugn the integrity of the counsel involved 

in this case, who no doubt relied on conventional sources of insight into 

jury-selection strategy, such as the advice of jury consultants or 

feedback from focus groups. But consulting these sources for advice on 

the color of an ideal juror cannot help but undermine our judicial 

system’s obligation to provide race-neutral proceedings. This Court’s 

precedent insists that jury selection—which routinely involves venire 

panels as diverse as the population of Texas—must be conducted 

without regard to race, to the greatest extent possible. The expression 

on the record of a race-based preference, coupled with peremptory 
3

strikes consistent with the stated preference, compels the conclusion 

that racial considerations impermissibly tainted the selection of this 

jury. The district court could have remedied this problem prior to trial, 

but it did not, so a new trial is required.

In addition to resolving the jury-selection issue, we also hold that 

United Rentals is not entitled to rendition of judgment on its argument 

that it owed no common law tort duty to the plaintiffs. United Rentals 

is entitled, however, to rendition of judgment on Davis’s survival claim. 

The plaintiffs sought only pain-and-suffering damages for this claim, 

and there was no evidence at trial that would allow a reasonable juror 

to find that Davis suffered any such damages in the fleeting moments 

between the onset of the accident and his sudden passing. The case is 

remanded for a new trial on the plaintiffs’ remaining claims.

I.

A.

United Rentals North America, Inc., is a nationwide equipment 

rental company with over one hundred branch locations throughout 

Texas. In March 2015, United Rentals decided to transport two large 

pieces of its equipment from a San Antonio branch to an Irving branch. 

One was a forklift with an attachment called a “boom arm.” The second 

was a “Genie S-125 boom lift.” The forklift was eight feet, three inches 

tall. It was considered an ordinary load that could be transported on an 

ordinary flatbed trailer. The Genie S-125 boom lift was ten feet, one 

inch tall. At this height, combined with the height of an ordinary flatbed 

trailer, the boom lift was considered oversized and therefore required a 
4

special permit from the Texas Department of Motor Vehicles.1 Such a 

permit would have specified a suitable route for safe passage. No permit 

was obtained to transport the boom lift. United Rentals’ own 

“Transportation Guide” showed a maximum load height of eight feet, six 

inches for an ordinary flatbed trailer. Safely transporting the boom lift 

required a special trailer with a lower deck.

Lares Trucking was hired to transport the forklift, and a company 

called “Truckin By the Wild West” was hired to transport the oversized 

load, the boom lift. Both loads were scheduled for transport on March 

26, 2015. Lares driver Valentin Martinez arrived on the morning of 

March 26th with a conventional flatbed trailer. He met with Manuel 

Montez, a United Rentals operations manager. Martinez, speaking 

broken English, said he was there for a “boom.” Montez, who is 

bilingual, asked Martinez to provide a bill of lading (BOL) number, but 

Martinez did not have one. United Rentals requires a BOL before 

equipment is released because it helps ensure the equipment is 

transported by the correct carrier. Montez knew he needed to verify that 

the BOL number provided by Martinez matched the BOL number 

assigned to the equipment being transported, but he failed to do so. 

Martinez tried unsuccessfully to contact his supervisor to obtain a BOL 

number.

Montez then called Julie Gainor, a United Rentals regional 

manager. He told Gainor that a driver was at the San Antonio branch 

to pick up a “boom” but did not have a BOL number. There was evidence 

1 See TEX. TRANSP. CODE § 621.207; 43 TEX. ADMIN. CODE

§§ 219.2(b)(43), .2(b)(46), .10.
5

that “boom” could refer to a forklift with a boom arm as well as a boom 

lift. Gainor found the BOL number for the Genie S-125 boom lift and 

sent it to Montez. Montez then gave the BOL number for the boom lift 

to another United Rentals employee, Nick Watts. Watts drove the boom 

lift onto Martinez’s flatbed trailer. No one measured the height of the 

load at the time, but the evidence indicates that it measured fourteen 

feet, seven inches tall. Gainor testified that had she known Martinez 

brought a normal flatbed trailer to haul an S-125 boom lift, she would 

have been concerned “because you can’t haul a 125 on a flatbed.” 

However, the BOL that Gainor sent to Montez specified that the Genie 

S-125 boom lift was being transported by “Trailer Type: FLATBED.” 

Before departing, Martinez returned to the United Rentals office 

and showed Montez his cell phone with the BOL number for the forklift. 

This number did not match the BOL number for the boom lift that had 

already been loaded onto Martinez’s truck, but Montez failed to notice 

the discrepancy. Martinez signed the BOL for the boom lift. Company 

policy required Montez to also sign the BOL, but he did not. Martinez 

departed for Irving between 9:00 a.m. and 9:30 a.m.

Specialized trailers are needed to transport oversized loads like 

the boom lift. Martinez did not have such a trailer, but around 

10:45 a.m., Bob West, an experienced truck driver, arrived with a 

“step-deck” trailer to pick up the boom lift. A step-deck trailer sits about 

two feet lower than a regular flatbed trailer. West showed Montez the 

BOL for the boom lift, but Montez told him the equipment had already 

left with another driver. Montez contacted Gainor. She realized 

Martinez had picked up the wrong load. No one with United Rentals 
6

contacted anyone about the mistake. West was given the forklift to 

transport. West testified that United Rentals should not have loaded 

the boom lift onto an ordinary flatbed trailer. United Rentals’ regional 

fleet director likewise testified that Martinez had been given “the wrong 

piece of equipment” and that the boom lift should have been transported 

by a different driver using a lower trailer.

Around 11:15 a.m., Martinez approached a construction zone in 

Salado as he headed north on Interstate 35. Multiple signs warned that 

the bridge under construction was low and that loads over thirteen feet, 

six inches should exit before the overpass. Martinez did not exit. His

truck’s cargo struck the overpass. Two massive beams collapsed onto 

the highway. Meanwhile, Clark Davis was driving south on the highway 

in his pickup truck. One of the beams struck the hood of his truck and 

crushed it. Davis suffered catastrophic injures and died at the scene. 

The beam fell so quickly that Davis had no time to react by hitting his 

brakes or swerving.

The Texas Department of Public Safety investigated the crash. 

Its report concluded that the crash was caused by the truck driver’s

error, noting as contributing factors the oversized load, the truck 

driver’s lack of attention to the roadway, and the truck driver’s disregard 

for posted warning signs in the construction zone. The report also 

concluded that “the incorrect piece of equipment was loaded. Had the 

correct piece of equipment been loaded, the crash would not have 

occurred. This does not relieve the driver of the responsibility to check 

the height of his load and if needed, obtain a permit.”
7

B.

Davis’s mother, Pamela Evans, and Davis’s son, Dominic Jones, 

filed a survival claim on behalf of Davis’s estate and a wrongful death 

action on behalf of themselves. They sued several defendants, including 

United Rentals, Lares Trucking, and Martinez. All defendants except 

United Rentals settled or were dismissed before judgment.2

Exercising its discretion to equalize peremptory strikes in a case 

involving multiple parties, see TEX. R. CIV. P. 233, the district court gave 

the defense nine peremptory strikes and the plaintiffs six, resulting in 

a “strike zone” of twenty-seven potential jurors.3 The plaintiffs 

exercised five of their six allotted strikes. They struck four white males 

and one Hispanic male. United Rentals struck five black females, two 

white females, and two white males. Both sides challenged the opposing 

side’s strikes as improperly motivated. The district court sustained the 

plaintiffs’ challenge as to two black females struck by the defense. Both 

ended up on the twelve-person jury. The court denied the defense’s 

challenge to the plaintiffs’ strikes. The jury selected included four black 

women, one Asian woman, two Hispanic women, five Hispanic men, and 

no white jurors. 

2 The defendants also included U.S. Logistics—a broker that hired 

Lares Trucking—and other entities involved in the construction of the bridge.

3 By “strike zone” we mean “the group of potential jurors capable of 

being on the jury.” Comeaux v. State, 445 S.W.3d 745, 751 (Tex. Crim. App. 

2014). These twenty-seven potential jurors consisted of one Asian female, 

three Hispanic females, eight black females, three white females, six Hispanic 

males, and six white males.
8

The jury charge asked whether the negligence of any of four 

potentially responsible parties proximately caused the injury and asked 

the jury to fix a percentage of responsibility as to each contributing 

party.4 The jury assigned 30% responsibility to United Rentals. It 

awarded a total of $1.6 million to Jones, $2.7 million to Evans, and 

$5 million to Davis’s estate for his physical pain and mental anguish 

prior to death. Consistent with the jury’s proportioning of responsibility, 

the court rendered judgment of $810,000 to Evans, $480,000 to Jones, 

and $1.5 million to the estate, plus pre-judgment and post-judgment 

interest.

United Rentals appealed. The court of appeals affirmed the 

district court’s judgment. 608 S.W.3d 449, 485 (Tex. App.—Dallas 

2020). Three justices, in two writings, dissented from denial of en banc 

review.5

II.

We begin with the jury-selection issue.6 United Rentals first 

complains that the district court erred by granting the plaintiffs’ 

4 The four potentially responsible parties listed in the charge were 

“James Construction Group,” “United Rentals North America,” “Lares 

Trucking/Valentin Martinez,” and “HNTB Corporation.”

5 Justice Evans, joined by Justices Whitehill and Schenck, favored en 

banc reconsideration of the jury-selection issue. Justice Schenck, joined by 

Justice Whitehill, would have granted en banc reconsideration of the amount 

of damages for Davis’s pain and suffering. 608 S.W.3d at 485, 505. 

6 In addition to seeking a new trial on this basis, United Rentals also 

seeks rendition of judgment in its favor, on the theory that it owed no tort duty 

to the plaintiffs. If that argument were correct, we would not reach the request 

for a new trial based on jury-selection error. As explained in Part III, however, 
9

challenge to two of its peremptory strikes. Because a new trial is 

required for other reasons, we do not reach this issue. As explained 

below, we agree with United Rentals that a new trial is required by our 

precedent because one party stated a preference for black jurors, that 

party exercised its strikes in concert with the stated preference, and the 

court did not remedy the situation before trial.7

In Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme 

Court held “that a criminal defendant is denied equal protection under 

the United States Constitution if a prosecutor uses peremptory 

challenges to exclude members of the jury panel solely on the basis that 

their race is the same as the defendant’s.” Goode, 943 S.W.2d at 444. 

Five years later, in Edmonson v. Leesville Concrete Co., the U.S. 

Supreme Court decided that “race-based exclusion” of civil jurors 

violates the equal protection rights of the excluded juror. 500 U.S. at

616. That same year, in Powers v. Palacios, this Court followed 

United Rentals is not entitled to rendition of judgment on all claims against it, 

so we address its request for a new trial.

7 While both parties complain that the other party improperly exercised 

peremptory challenges on the basis of both race and sex, we confine our 

discussion to race. This Court has on multiple occasions recognized that when 

there is proof that prospective jurors were struck on account of race and the 

trial court does not remedy the matter, reversal is required in civil cases. See, 

e.g., Powers, 813 S.W.2d at 490 (citing Edmonson v. Leesville Concrete Co., 500 

U.S. 614, 616 (1991)); Goode v. Shoukfeh, 943 S.W.2d 441, 444 (Tex. 1997); 

Davis v. Fisk Elec. Co., 268 S.W.3d 508, 526 (Tex. 2008). We have not had 

occasion to address an allegation of a peremptory strike based on a juror’s sex, 

although the U.S. Supreme Court, in a criminal case, has said that sex 

discrimination in jury selection is prohibited. See J.E.B. v. Alabama ex rel. 

T.B., 511 U.S. 127, 129 (1994). Because separate analysis of the 

sex-discrimination aspect of the parties’ arguments would not affect the 

outcome here, we need not address it.
10

Edmonson, extending restrictions on “the unconstitutional use of 

peremptory challenges in criminal actions to civil litigation.” 813 

S.W.2d at 491. We have twice had occasion since Powers to consider 

allegations that peremptory strikes were improperly based on race. See

Goode, 943 S.W.2d at 444; Davis, 268 S.W.3d at 510–11.

As exemplified by our decisions in Goode v. Shoukfeh and Davis

v. Fisk Elec. Co., courts across the country faced with what is commonly 

called a “Batson claim” usually conduct a three-step analysis to 

determine whether the challenged strikes were purposefully 

discriminatory. See, e.g., Goode, 943 S.W.2d at 445–46; Davis, 268 

S.W.3d at 514 n.4; Hernandez v. New York, 500 U.S. 352, 358–59 (1991). 

First, “the opponent of the peremptory challenge must establish a prima 

facie case of racial discrimination.” Goode, 943 S.W.2d at 445. Because 

an on-the-record statement of racial preference is exceedingly rare, the 

first step usually entails statistical analysis or suggestions of unspoken 

motive designed to generate an “inference” of discrimination.8 With the 

inference generated, the burden at the second step “shifts to the party 

who has exercised the strike to come forward with a race-neutral 

explanation.” Goode, 943 S.W.2d at 445. Finally, “at the third step of 

the process, the trial court must determine if the party challenging the 

strike has proven purposeful racial discrimination.” Id.

8 See, e.g., Batson, 476 U.S. at 93–94 (describing steps for showing “an 

inference of discriminatory purpose”); City of Beaumont v. Bouillion, 896 

S.W.2d 143, 155–56 (Tex. 1995) (“[I]t is clear that the initial inference that the 

plaintiffs used their peremptory strikes improperly was tenable.”); Salazar v. 

State, 795 S.W.2d 187, 191 (Tex. Crim. App. 1990) (“The court of appeals held 

that appellant failed to meet the three Batson criteria for raising an inference 

of purposeful discrimination.”).
11

In Powers v. Palacios, we confronted the exceptional situation in 

which counsel admitted on the record that race “figured into” the 

decision to strike a black prospective juror, although counsel denied that 

race affected the decision “improperly” and maintained that race “was 

not the sole reason for striking her.” 813 S.W.2d at 490 n.1. We did not 

engage in the three-step analysis common to ordinary Batson cases. 

Instead, we summarily reversed the judgment below and remanded for 

a new trial because the admission, on its own, “established that opposing 

counsel had exercised a peremptory challenge discriminatorily.” Id. at 

491. The express holding of Powers is “that equal protection is denied 

when race is a factor in counsel’s exercise of a peremptory challenge to 

a prospective juror.” Id.

Powers’ statement that a violation occurs when race is “a factor” 

in a peremptory strike is in some tension with the standard articulated 

in Batson itself—that the Constitution is violated when prospective 

jurors are struck “solely on account of” race. Batson, 476 U.S. at 89. 

Because of this inconsistency, some courts interpreted Powers’ 

statement that race need only be “a factor” in the strike as a 

Texas-specific relaxation of the U.S. Supreme Court’s standards for 

discerning impermissible motive in jury selection. See, e.g., Benavides 

v. Am. Chrome & Chems., Inc., 893 S.W.2d 624, 626 (Tex. App.—Corpus 

Christi–Edinburg 1994, writ denied with opinion) (holding that “[w]e 

and the Texas Supreme Court have gone a step further than some other 

jurisdictions”). We quickly disclaimed any such relaxation, however. 

Am. Chrome & Chems., Inc., v. Benavides, 907 S.W.2d 516, 517 (Tex. 

1995) (repudiating the court of appeals’ statement that “the Texas 
12

Supreme Court [had] gone a step further”); Goode, 943 S.W.2d at 445 

(disagreeing that Powers relaxed the analysis and describing the 

appropriate inquiry as to whether the strike was “on the basis of race”). 

Later, in Davis, we characterized the ultimate goal of the three-step 

inquiry as determining whether race “explains” the strike “better than 

any other reason.”9 268 S.W.3d at 526.

Powers v. Palacios is thus an outlier case in multiple respects. It 

does not engage in the three-step inquiry envisioned by Batson and later 

cases, instead summarily remanding for a new trial due to the trial 

court’s failure to remedy counsel’s admission of a race-based motive in 

jury selection. Powers is also an outlier in holding that race need only 

be “a factor” motivating the peremptory strike. Powers remains this 

Court’s precedent, but given intervening developments in the law, its 

apparently broad holding is best understood as limited to the rare 

circumstance in which an admission of racial preference in jury selection 

appears explicitly in the record. Therefore, Powers’ statement that a 

Batson violation occurs when race is “a factor” in striking a juror does 

not control in the typical Batson case when courts are asked to discern 

counsel’s motivations from a mixture of imputed and proffered 

explanations. But unless Powers is overruled, which no party requests, 

the case continues to stand for the limited proposition that admission on 

the record of race-based motivation in jury selection “establishe[s] that 

9 The U.S. Supreme Court has since described the three-step inquiry as 

designed to determine whether the peremptory strike was “motivated in 

substantial part by discriminatory intent.” Flowers v. Mississippi, 139 S. Ct. 

2228, 2245 (2019).
13

[] counsel ha[s] exercised a peremptory challenge discriminatorily.” 

813 S.W.2d at 491.

The case before us is the unusual one, similar to Powers, in which 

an explicit preference for jurors of a certain race (and therefore against 

jurors of other races) was plainly stated on the record. During a lengthy 

discussion of the parties’ competing Batson challenges, counsel for the 

plaintiffs offered the following as a reason to believe that the defendant 

used a strike on a black female because of her race: “We know from our 

focus groups that the African-American female is the most favorable 

juror for this case for whatever reason.”10

Faced with such a statement, our precedent in Powers indicates 

that we need not proceed, as many cases do, with a lengthy analysis of 

the three-step Batson framework and how it applies to particular 

strikes. Courts asked to impute impermissible racial motive based on 

inferences from a race-neutral record should never do so lightly. Any 

attempt to divine another person’s unspoken motives, particularly from 

a cold record, is fraught with uncertainty. We should strive throughout 

the law for easily administrable bright-line rules, which can be followed 

by parties with confidence and applied by judges with predictability. 

See, e.g., Gutierrez v. Collins, 583 S.W.2d 312, 317 (Tex. 1979) (favoring 

standards that “provide[] a uniform, consistent, and predictable rule of 

10 According to Justice Evans’ dissenting opinion urging en banc review:

“This particular civil case appears to be the first in the United States where a 

race- and gender-based goal—the substantial motivation—in selecting the jury 

was plainly and openly stated, and 100% of the peremptory challenges were 

perfectly consistent with that stated goal.” 608 S.W.3d at 486 (Evans, J., 

dissenting). We are not directed to, and have not identified, any other such 

case. 
14

law, thus simplifying the task of both lawyers and the courts”). Most 

Batson claims, by their very nature, deal in subjective implications and 

inferences rather than objective bright-line rules. The potential for 

judicial mistake is high, and courts should approach this unwelcome but 

required task with humility. But in the rare case where the record 

contains a clear admission of racial preference in jury selection, Powers

provides an easily administrable bright-line rule, which we apply today.

Of course, it is not the mere expression of a racial preference in 

jury selection, standing alone, that requires reversal. It is instead the 

actual strike of a juror on account of race. Thus, even when a racial 

preference is announced, if the peremptory strikes are not consistent 

with the announced preference, there will be no grounds to find the 

strikes unlawful. Here, the strikes are consistent with the announced 

preference. Plaintiffs’ counsel struck four white males and one Hispanic 

male. As a dissenting court of appeals justice observed, counsel’s goal 

“in selecting the jury was plainly and openly stated, and 100% of the 

peremptory challenges were perfectly consistent with that stated goal.” 

608 S.W.3d at 486 (Evans, J., dissenting).

The plaintiffs object that they only used five of their six allotted 

strikes. They do not explain why they did not use the last strike. 

Regardless, we fail to see why this fact alters the analysis. All the 

strikes that were used were consistent with the stated racial preference, 

and the decision not to use the final strike does not undercut the clearly 

stated and demonstrated racial preference.

The plaintiffs also emphasize that counsel’s comment regarding 

“the most favorable juror” was made during a discussion of the plaintiffs’ 
15

challenge to the defense’s strikes, not a discussion of the plaintiffs’ 

strikes. The plaintiffs argue that the comment was made to 

demonstrate the pretextual nature of the defense’s race-neutral 

explanation for its strike of a black female. This argument is 

unpersuasive. There is no getting around the statement’s clear 

expression of a racial preference in jury selection, and the statement was 

made during a lengthy exchange among counsel and the court regarding 

both sides’ Batson challenges.

Even if the statement is viewed purely as an attempt to explain 

the defense’s motives, the statement suggests that counsel for the 

plaintiffs accused defense counsel of improperly striking black females 

at least in part to advance his own preference for jurors of one race over 

jurors of other races. If counsel for both sides “knows” based on focus 

groups or jury consultants that jurors of a certain race are “good” or 

“bad” for one side or the other, then the improper use of racially 

motivated peremptory strikes is not the only concern. Batson challenges 

themselves can also be used in an improper attempt to influence the 

racial composition of the jury in what the challenger perceives to be his 

favor. A race-conscious jury-selection strategy thus poisons the entire 

enterprise—from voir dire to peremptory strikes to arguments about 

Batson.

“It is a sordid business, this divvying us up by race.” LULAC v. 

Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in part). 

Judges bear the ultimate responsibility for administering race-neutral 

proceedings, but if our system of justice is ever to rid itself entirely of 
16

racial discrimination, lawyers and jury consultants must do their part 

as well.11 

Because counsel stated a racial preference in jury selection, the 

peremptory strikes were consistent with that preference, and the 

district court did not remedy the matter, a new trial is required.12

III.

A.

United Rentals argues that judgment should be rendered in its 

favor because it had no duty under Texas law that would support the 

plaintiffs’ negligence claims. If that is correct, then we need not reach 

any other issues, including the jury-selection issue discussed above. It 

is not correct, however, for the reasons explained below.

The existence of a legal duty owed by the defendant to the plaintiff 

is an essential element of a negligence claim. D. Houston, Inc., v. Love, 

11 The record of the voir dire and the plaintiffs’ briefing in this Court 

make clear that the plaintiffs employed jury consultants.

12 Trial courts have extensive leeway in fashioning appropriate 

remedies for improper racial considerations in jury selection. See United States

v. Bartee, 301 F. App’x 46, 48 (2d Cir. 2008) (“A district court’s discretion to 

fashion remedies for Batson violations is broad.”); Price v. Short, 931 S.W.2d 

677, 681 (Tex. App.—Dallas 1996, no writ) (“If the trial court determines that 

the prosecution used peremptory strikes in a racially discriminatory manner, 

the court may dismiss the array and summon a new one . . . or it ‘may fashion 

a remedy in its discretion consistent with Batson and its progeny.’”) (quoting 

State ex rel. Curry v. Bowman, 885 S.W.2d 421, 425 (Tex. Crim. App. 1993)); 

Garza v. State, 10 S.W.3d 765, 768 (Tex. App.—Corpus Christi–Edinburg 2000, 

pet. ref’d.) (After the use of peremptory strikes, there were no women on the 

jury and six of the ten strikes used by the defense were against women, so the 

trial court used its discretion to disallow all six strikes of women and permit 

the defendant to re-exercise its strikes.). Statements such as the one made 

here need not irretrievably taint the proceedings, so long as they are remedied 

by the district court prior to trial.
17

92 S.W.3d 450, 454 (Tex. 2002). Although a duty’s existence can depend 

on the facts of the case, whether a duty exists under a given set of facts 

is always a question of law for the court. Three Aces Towing, Inc. v. 

Landrum, 653 S.W.3d 727, 729–30 (Tex. 2022). We agree with the 

plaintiffs and the court of appeals that United Rentals owed the 

plaintiffs an actionable duty under these circumstances.

As we have previously observed:

There are many instances in which it may be said, as a 

matter of law, that there is a duty to do something, and in 

others it may be said, as a matter of law, that there is no 

such duty. . . . [I]t may be said generally, on the one hand, 

that if a party negligently creates a dangerous situation it 

then becomes his duty to do something about it to prevent 

injury to others if it reasonably appears or should appear 

to him that others in the exercise of their lawful rights may 

be injured thereby. On the other hand, it may be said 

generally, as a matter of law, that a mere bystander who 

did not create the dangerous situation is not required to 

become the good Samaritan and prevent injury to others.

Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000) (quoting 

SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex. 1995)); see 

also Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942) (same).

Imposing a duty on United Rentals in these circumstances by no 

means requires the company to play the role of the “good Samaritan,” 

who goes out of his way to aid those to whom he owes no legal duty.13 

Instead, it merely requires United Rentals to avoid “negligently 

creat[ing] a dangerous situation” that has the highly foreseeable 

consequence of injuring “others in the exercise of their lawful rights,” 

13 Luke 10:30–37.
18

such as those driving down the highway, like Davis. When determining 

whether a negligence duty is owed, the foreseeability of the risk is “the 

foremost and dominant consideration.” Greater Hous. Transp. Co. v. 

Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Here, the foreseeability of the 

terrible risk to innocent parties posed by loading unduly tall loads onto 

trucks bound for an interstate highway ought to be so obvious as to go 

without saying.

United Rentals frequently has its heavy equipment moved on 

highways. It had every reason to be well aware of the dangers of 

oversized loads, and it had ample opportunity to guard against allowing 

its equipment to be transported dangerously. Most importantly, it 

would reasonably appear to anyone involved in the loading of equipment 

like the boom lift that injury, indeed catastrophic injury, is a distinctly 

foreseeable result of improper loading. We agree with the court of 

appeals that, in general, “a party who takes affirmative acts that create 

a danger on a public highway can be held responsible for the results of 

those actions, along with other responsible actors.” 608 S.W.3d at 463. 

Under these facts, United Rentals owed a duty to Davis and other 

drivers to refrain from “negligently creat[ing] a dangerous situation” on 

the highway. Torrington, 46 S.W.3d at 837.

United Rentals argues that the trucking company here had 

“non-delegable” statutory and regulatory duties to comply with 

load-height requirements, and to ensure proper loading and securing of 

cargo. See TEX. TRANSP. CODE §§ 621.207, .504; see also 49 C.F.R. 

§§ 390.11, 392.9(b)(2); 37 TEX. ADMIN. CODE § 4.11(a). Even assuming 

the trucking company had such duties, as it likely did, United Rentals 
19

cites no authority indicating that the mere existence of a statutory duty 

enforceable against the trucking company automatically eviscerates all 

other parties’ common law duties that might have arisen depending on 

the facts. Texas law of course recognizes that more than one defendant 

can be held liable for a single injury to a plaintiff. The entirety of 

Chapter 33 of the Civil Practice and Remedies Code, setting out rules of 

proportionate responsibility, is premised on the principle that more than 

one party can be legally responsible for a single injury.

The plaintiffs point to an administrative rule requiring that a 

person “operating or loading” certain vehicles must comply with various 

requirements, including height restrictions. See 43 TEX. ADMIN. CODE

§ 219.81(a); see also TEX. TRANSP. CODE § 621.503. The parties disagree 

about whether these requirements applied to United Rentals when its 

employee drove the boom lift onto Martinez’s truck, thereby “loading” 

the vehicle. No matter which side has the correct interpretation of the 

applicable statutes and regulations, the answer to that question does 

not determine whether United Rentals owed a common law duty to 

drivers on Texas roads to avoid negligently creating an extremely 

dangerous situation. 

A tort duty may in some cases be derived from statute or 

administrative rules rather than the common law. See Smith v. Merritt, 

940 S.W.2d 602, 607 (Tex. 1997) (statute); Mo. Pac. R.R. Co. v. Am. 

Statesman, 552 S.W.2d 99, 102 (Tex. 1977) (administrative rule). But 

United Rentals cites no authority suggesting that a common law claim 

against one defendant automatically fails because a negligence per se 

claim against another defendant who violated a statute might also exist.
20

United Rentals may be correct, in a sense, that the trucking 

company’s legal duties regarding safe loading of its trucks are 

“non-delegable,” meaning that the trucking company cannot relieve 

itself of those duties. But the plaintiffs’ claims do not attempt to impose 

the trucking company’s statutory duties on United Rentals. Instead, 

they seek to hold United Rentals liable, under the common law, for the 

foreseeable consequences of its own negligence, which contributed to the 

unsafe loading of the boom lift and thereby to Davis’s death. United 

Rentals does not escape its common law duty to avoid negligent actions 

that create hazardous road conditions merely because other sources of 

law impose similar duties on other parties.

B.

United Rentals next argues that, assuming it owed the plaintiffs 

a duty, there was no evidence that it breached that duty, and there was 

no evidence that its negligence proximately caused the plaintiffs’ 

injuries. We disagree.

The evidence is legally insufficient to support a jury finding when 

“(1) the record discloses a complete absence of evidence of a vital fact;

(2) the court is barred by rules of law or of evidence from giving weight 

to the only evidence offered to prove a vital fact; (3) the evidence offered 

to prove a vital fact is no more than a mere scintilla; or (4) the evidence 

establishes conclusively the opposite of a vital fact.” Gunn v. McCoy, 

554 S.W.3d 645, 658 (Tex. 2018). In determining whether there is no 

evidence to support a jury’s finding, all the record evidence must be 

considered in the light most favorable to the party in whose favor the 

verdict has been rendered. Merrell Dow Pharms., Inc. v. Havner, 
21

953 S.W.2d 706, 711 (Tex. 1997). As we stated in City of Keller v. Wilson, 

“[t]he final test for legal sufficiency must always be whether the 

evidence at trial would enable reasonable and fair-minded people to 

reach the verdict under review.” 168 S.W.3d 802, 827 (Tex. 2005).

We agree with the plaintiffs and the court of appeals that the 

evidence was legally sufficient to support the jury’s findings of breach 

and proximate cause. A United Rentals employee loaded an oversized 

boom lift onto a regular flatbed trailer, even though United Rentals 

knew a boom lift should not be transported on a regular flatbed trailer

and had a policy preventing it. The error occurred at least partly 

because United Rentals’ employees mishandled the BOL numbers that 

would have matched the boom lift to the proper trailer. When United 

Rentals’ employees realized the error, before the accident, they failed to 

make any effort to fix the problem. Negligently allowing its oversized 

heavy equipment to travel down a highway on an unsuitable trailer 

created an exceptionally dangerous condition and a foreseeable risk of 

death or serious injury to others, including Davis, whose death was the 

proximate result of the acts and omissions of United Rentals, among 

other responsible parties. Ample evidence supported the jury’s findings 

of breach and proximate cause.

IV.

Finally, United Rentals argues that the evidence was legally 

insufficient to support the damages for mental and physical pain and 

suffering sustained by Davis before his death. The jury charge asked 

what sum would fairly and reasonably compensate Davis for his “pain 

and mental anguish,” defined as “the conscious physical pain and 
22

emotional pain, torment, and suffering experienced by Clark Brandon 

Davis before his death as a result of the occurrence in question.” The 

jury awarded $5 million on this claim. Based on the jury’s assignment 

of 30% responsibility to United Rentals, the court awarded $1.5 million 

to Pamela Evans as administrator of the decedent’s estate.

We agree with United Rentals that the evidence offered in 

support of these damages was legally insufficient.14 The alleged 

damages suffered by Davis included two categories: (1) the mental 

anguish he suffered in anticipation of his injury as the beams were

falling, and (2) the physical pain and attendant mental anguish he 

suffered after his physical injury but before his death. The jury charge 

did not separately list the two categories, but the parties agree that 

these are the two kinds of damages sought for Davis’s survival claim.

As to mental anguish preceding Davis’s injury, the plaintiffs’ 

accident-reconstruction expert, William Miller, testified that the beam 

that struck Davis’s truck fell to the ground in, at most, nine-tenths of a 

second. He testified that there was no time for Davis to react by braking 

or taking other action, but Miller thought “there [was] time to [think] 

oh, my gosh, what’s happening, you know, in a moment.” Miller further 

testified that Davis had “no time to react other than maybe to realize, if 

he realizes, that [the] beam is falling.” But Miller offered no opinion on 

whether Davis in fact realized the beam was falling before he was killed.

14 United Rentals separately argues that no evidence supports the 

amount of damages awarded by the jury. We need not reach this issue. Nor 

do we consider United Rentals’ suggestion that mental anguish awards for the 

split-second anticipation of injury should not be permitted at all.
23

Evidence that there was time for Davis to anticipate the injury is 

not evidence that he actually did so. There was no evidence that Davis 

in fact observed the truck hit the overpass or saw the falling debris 

before it struck his vehicle, and Miller did not purport to have any 

opinion on whether or not Davis would have actually anticipated the 

injury under those circumstances. Thus, while the record may contain 

evidence that Davis had time to perceive the beams falling and 

anticipate the consequences, no evidence suggests that he actually did.

Testimony that gives “rise to any number of inferences, none more 

probable than another,” is legally insufficient to support the inference of 

a fact. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 

1997) (internal citations omitted). Likewise, “[w]hen the circumstances 

are equally consistent with either of two facts, neither fact may be 

inferred.” City of Keller, 168 S.W.3d at 813 (quoting Tubelite, a Div. of 

Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 805 (Tex. 1991)). 

“Jurors may not simply speculate that a particular inference arises from 

the evidence.” Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 228 (Tex. 

2011). Thus, “[a] jury may not infer” conscious pain and suffering from 

circumstantial evidence when the evidence gives “rise to any number of 

inferences, none more probable than another.” Hammerly Oaks, Inc., 

958 S.W.2d at 392. If the jury’s inference has no support in the evidence 

and amounts to nothing more than a guess, the finding cannot survive 

a legal sufficiency challenge. Serv. Corp. Int’l, 348 S.W.3d at 228–29.

It was the plaintiffs’ burden to prove by a preponderance of the 

evidence that Davis actually suffered the damages claimed. Haygood v.

De Escabedo, 356 S.W.3d 390, 399 (Tex. 2011) (quoting Texarkana Mem’l 
24

Hosp., Inc. v. Murdock, 946 S.W.2d 836, 838 (Tex. 1997)). There was no 

evidence presented at trial to carry this burden. No testimony from 

nearby drivers indicated that Davis swerved or otherwise reacted prior 

to the impact. And the accident-reconstruction expert could not offer an 

opinion that Davis, more likely than not, perceived the impending 

impact to his vehicle. As a result, an inference by the jury that Davis 

did in fact have such a perception would be based not on evidence but on 

speculation. Any portion of the mental anguish damages awarded by 

the jury based on Davis’s awareness of the impending injury was based 

solely on speculation and therefore cannot stand.

The remaining question is whether there was evidence that Davis 

retained consciousness and therefore experienced physical and mental 

pain after the beam struck his truck. The parties focus on the testimony 

of the medical examiner, Dr. Townsend-Parchman, who conducted the 

autopsy. She testified that Davis died from the catastrophic injuries 

suffered when the massive beam fell on his truck. The horrific extent of 

the injuries is described by the court of appeals. 608 S.W.3d at 466. Dr. 

Townsend-Parchman explained that the injuries were caused when 

“something mammoth crushed” Davis, and the injuries she detailed 

were “way more than you see in most traffic wrecks.” The plaintiffs 

argue that because Davis’s skull was not fractured and the autopsy did 

not reveal injury to his vertebrae, blood could have continued to travel 

to his brain for a brief time after the impact.

On the matter of Davis’s post-impact consciousness, Dr. 

Townsend-Parchman was asked: “Can you state, based upon a 

reasonable medical probability, whether or not Mr. Davis was actually 
25

aware of what had happened to him after this accident happened, 

whether he was consciously aware?” She answered: “He may or may 

not have been knocked unconscious, and there’s no way to 

know. . . . That’s a big question mark that’s going to stay a question 

mark.” She agreed that “it would be speculative to say whether or not 

he was actually consciously aware of what happened to him after this 

accident.” When asked whether he was unconscious, stunned, or “clear 

as a bell for 10 to 15 seconds” before his brain ran out of oxygen, she 

stated “[t]here is nothing to distinguish those.” Dr. 

Townsend-Parchman’s testimony was the only evidence regarding 

Davis’s post-accident consciousness on which the jury could have relied.

If Davis was immediately rendered unconscious by the impact, 

then he did not suffer physical or mental pain following the impact. If 

he retained consciousness, then he likely did suffer such pain. As 

between these two scenarios, it is the plaintiffs’ evidentiary burden to 

prove by a preponderance of the evidence that Davis actually suffered 

the claimed injuries—in other words, that he retained consciousness 

after the impact. Yet the plaintiffs’ medical expert, who offered the only 

testimony on this topic, could not offer an opinion that Davis more likely 

than not retained consciousness after impact. If there is no evidence one 

way or another on this question, any damages awarded for conscious 

pain and suffering could only have been based on speculation, not 

evidence. Speculation that damages may have been suffered cannot 

support a judgment. There must instead be some evidence that damages 

were actually suffered. D. Houston, Inc., 92 S.W.3d at 454.
26

Despite being given multiple opportunities to do so, Dr. 

Townsend-Parchman declined to testify that, in her opinion, Davis more 

likely than not retained consciousness. She made it clear that she 

simply did not know. When considering the possibilities, she testified 

that “certainly there have been people who in terms of anatomy only had 

a subscapular hemorrhage [like the one Davis suffered] and were 

knocked unconscious.” On the other hand, “he could have been clear as 

a bell for 10 to 15 seconds.” The jury could not infer from Dr. 

Townsend-Parchman’s noncommittal testimony that Davis was actually 

conscious after impact. As a result, the evidence supporting damages 

for post-impact pain and suffering was legally insufficient.

In previous cases, “[t]his Court and [the] courts of appeal[s] have 

rendered a take nothing judgment on claims in cases for which the 

evidence is legally insufficient to support the verdict and remanded, 

where appropriate, for new trial those claims that appear to be 

supported by legally sufficient evidence.” U-Haul Int’l, Inc. v. Waldrip, 

380 S.W.3d 118, 141 (Tex. 2012) (ordering a new trial on negligence 

claims but rendering judgment on gross-negligence claims because no 

evidence supported damages for those claims); see also Pike v. Tex. EMC 

Mgmt., LLC, 610 S.W.3d 763, 791 (Tex. 2020) (“Because there is no 

evidence of damages, we reverse the portions of the judgment awarding 

damages and render a take-nothing judgment.”). Because no evidence 

supports any of the damages sought for Davis’s survival claim, we 

render judgment for United Rentals on that claim. 
27

V.

For these reasons, we reverse the judgment of the court of appeals 

on the survival claim brought by Davis’s estate, and we render a take 

nothing judgment on this claim. The case is remanded to the district 

court for a new trial on the remaining claims.15

James D. Blacklock

Justice

OPINION DELIVERED: May 12, 2023

15 In addition to the Batson issues we have addressed, United Rentals

argues, as grounds for a new trial, that the district court erred by allowing the 

plaintiffs’ accident-reconstruction expert to give an erroneous interpretation of 

the Texas Administrative Code and by refusing United Rentals’ requested 

charge instruction to correct that alleged error. Whether these issues will arise 

again on remand is unclear, and we do not address them.