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Click here for the full text of this decision FACTS:Jimmie Reinicke’s wife, Karen, and their two sons, Max and Derrick, were killed by a fire resulting from a highway traffic collision. Reinicke brought this wrongful death and survival action against Aeroground (and others who are not parties to this appeal). At trial, the jury apportioned 50 percent of the negligence to Aeroground and awarded Reinicke damages totaling $23.25 million. However, the trial court ultimately concluded that there was no evidence that any negligence by Aeroground was a proximate cause of the accident, granted Aeroground’s motion for JNOV, and entered a take-nothing judgment. An Aeroground 18-wheel tractor-trailer rig driven by Randy Peavy ran out of fuel while heading eastbound on Highway 290 and was parked on the shoulder, out of the lane of traffic. Peavy notified Aeroground, and it sent another driver, David Rodriguez, with another tractor with which to pull Peavy’s tractor away from the trailer and then pull the trailer to Aeroground’s yard. After the first tractor had been moved away from the trailer, but before the second tractor was connected to it, Karen’s van drifted off the roadway, collided with the rear corner of the parked trailer, went back onto the roadway, collided with both a Murco 18-wheel rig and the concrete wall dividing the highway, then caught on fire. Reinicke contends that the accident was caused by Aeroground’s negligence in the following respects: 1. Peavy allegedly allowed his rig to run out of fuel during rush hour on a busy highway, causing it to be placed in a dangerous position on the shoulder; 2. Peavy allegedly failed to put out emergency warning triangles to alert oncoming traffic that his rig was disabled and not moving; and 3. Rodriguez, (allegedly an untrained driver who had a history of backing incidents), allegedly backed the second tractor into the roadway in the path of Karen’s van immediately before the collision. HOLDING:Affirmed. Although putting out emergency warning triangles would unquestionably have been better than not doing so, any conclusion that the accident would not have occurred if they had been used would be wholly speculative. There is thus no evidence that the failure to put out warning triangles was a cause of the accident, the court holds. Because the evidence shows no more than a mere possibility that the accident could have been caused by Rodriguez backing his tractor into the roadway, and at least an equal probability that the van left the roadway for other possible reasons, any conclusion regarding causation can be reached only by speculation or stacking inferences. Under these circumstances, there is no evidence that the accident was caused by Aeroground’s negligence. Reinicke’s third issue challenges the trial court’s exclusion of the opinion testimony of two DPS accident reconstructionists, Manning and Davis, that Aeroground caused the wreck. the facts that Manning and Davis relied upon included: 1. the respective locations of the various vehicles after the accident; 2. the location and length of skid marks from the Murco rig relative to the locations of the trailer and tractors, the calculated location at which Karen’s van collided with the Murco rig after hitting the trailer, and the points at which the van struck the concrete wall dividing the highway; and 3. various other matters occurring after the collision of Karen’s van with the trailer. The court finds no portion of the record at which either expert explained how (i.e., the sequence of logical steps by which) a conclusion can be drawn from these facts regarding what caused Karen’s van to veer off the road in the first place. Nor is it apparent, without such an explanation, how any such conclusion logically follows from the body of data they relied upon. Under these circumstances, the expert opinions were conclusory and/or speculative and would not have constituted evidence to support a finding that Aeroground’s negligence caused the accident, the court concludes. OPINION:Edelman, J.; Fowler, Edelman and Seymore, JJ. CONCURRENCE:Fowler, J. “I disagree in part and agree in part with the plurality opinion we issue today. I disagree that negligent activity and premises liability theories apply to this case. Instead, I agree with the dissent that the controlling case law permitted the trial court to submit this case to the jury under a general negligence theory of liability. However, I agree with the decision to affirm the trial court’s judgment notwithstanding the verdict because Mr. Reinicke failed to raise a fact issue on proximate cause. For this reason, I concur in the result reached by the plurality opinion.” DISSENT:Seymore, J.; “I would hold there is legally sufficient evidence to support the jury’s determination that Aeroground’s violation of 392.22(b)(2)(v) and failure to warn proximately caused injury and death to the Reinickes. See 49 CFR 392.22(b)(2)(v) (2000). Accordingly, I respectfully dissent.”

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