                                 MEMORANDUM OPINION
                                        No. 04-10-00330-CV

                 GREATER SAN ANTONIO TRANSPORTATION COMPANY,
                                    Appellant

                                                   v.

                                            John POLITO,
                                               Appellee

                     From the 288th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008-CI-11863
                        The Honorable Renée F. McElhaney, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 20, 2011

REVERSED AND RENDERED

           This appeal arises from a jury trial in which John Polito was awarded $323,477.32 in

damages for injuries he sustained when a taxi cab driven by John Joseph Carreon collided with

the motorcycle Polito was driving. The jury found that Greater San Antonio Transportation

Company (“Yellow Cab”) was responsible for thirty percent of the negligence that caused the

collision based on the manner in which the dispatch equipment was placed inside the taxi cab.

Yellow Cab appeals, contending the evidence is legally insufficient to establish the applicable
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standard of care, a breach of that standard, and the foreseeability element of duty and proximate

cause. We reverse the trial court’s judgment and render judgment in favor of Yellow Cab.

                                 EVIDENCE PRESENTED AT TRIAL

        Chuck Vostry, an electronics technician for Yellow Cab, testified that a taxi cab is

required by city ordinance to be equipped with a fare meter and a radio. Vostry stated that

Yellow Cab also requires its taxi cabs to be equipped with a computer system used to dispatch its

vehicles. The computer system provides the drivers with addresses and allows the drivers to bid

on calls.   Vostry testified that the senior management of Yellow Cab decides where the

equipment is placed inside the taxi cab taking into consideration industry standards which

include an option for mounting the radio on the passenger-side floorboard.             The Ground

Transportation Unit of the San Antonio Police Department inspects taxi cabs every six months

for compliance with safety standards.

        Carreon, the driver of the taxi cab that collided with Polito, also described the specialized

equipment used in a taxi cab as including: (1) a computer monitor that gives the drivers calls; (2)

a radio that transmits and receives signals so the computer can give the drivers calls through a

GPS system; and (3) a fare meter. Carreon stated that the radio has five preset channels. Of

those five channels, three are for data, and two enable the driver to talk to a dispatcher. The

driver selects a channel based on the part of the city in which the taxi cab is being driven, and the

driver changes the channels by pushing buttons on the radio. The radio is mounted on the

passenger-side floorboard. The computer monitor is mounted in the middle of the dashboard in

front of a vent.

        On the day of the accident, Carreon testified that the radio in his taxi cab made a loud

feedback noise. As he reached down to try to hit a button on the radio to stop the noise, he lost



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control of the steering wheel and collided with Polito. Carreon testified that the radio had made

that same noise on only two prior occasions in a three year period. Carreon believed the noise

resulted from his moving the front passenger seat as far forward as possible to give his

passengers more room. Carreon believed the noise was caused when the seat bumped the radio.

Carreon never reported the noise to Yellow Cab. Carreon testified that the accident would have

been less likely to occur if the radio had been placed in a location that did not require him to

reach down.

       Polito, along with two other witnesses who spoke with Carreon at the scene of the

accident, testified that Carreon stated that he was distracted by looking down at a computer when

the accident occurred. Carreon testified that the computer monitor has a screen that displays

written messages and buttons to push to accept or reject a call. Carreon testified that he was not

receiving a communication on the computer monitor when the accident occurred, and it was not

a factor in the accident. Steven Tippett, the Texas Highway Patrol trooper who responded to the

accident, testified that Carreon stated that he briefly looked down before the accident; however,

Tippett did not remember what Carreon said caused him to look down.

                                     STANDARD OF REVIEW

       When reviewing a legal sufficiency or “no evidence” challenge, we determine “whether

the evidence at trial would enable reasonable and fair-minded people to reach the verdict under

review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We view the evidence in

the light favorable to the verdict, crediting favorable evidence if reasonable jurors could and

disregarding contrary evidence unless reasonable jurors could not. Id. Appellate courts will

sustain a legal sufficiency or “no evidence” challenge when: (a) there is a complete absence of

evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight



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

no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the

vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

        One of Yellow Cab’s challenges to the legal sufficiency of the evidence is a claim that

expert testimony was required to establish the applicable standard of care and its breach. We

review whether expert testimony is necessary to prove a negligence claim under a de novo

standard. FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004).

                                                 DISCUSSION

        At trial, Polito’s claims against Yellow Cab were based on the placement of the radio, the

sound of the radio, 1 and the placement of the computer monitor. As is apparent from the above-

described testimony, there was evidence that the accident occurred because Carreon was

distracted by leaning over to turn off the radio noise or by looking down at the computer screen

just prior to the accident.

        Yellow Cab argues that because this case involved specialized equipment and industry

standards, Polito was required to prove the standard of care through expert testimony. “Expert

testimony is necessary when the alleged negligence is of such a nature as not to be within the

experience of a layman.” FFE Transp. Servs., Inc., 154 S.W.3d at 90 (quoting Roark v. Allen,

633 S.W.2d 804, 809 (Tex. 1982)). “In determining whether expert testimony is necessary to

establish negligence, Texas courts have considered whether the conduct at issue involves the use

of specialized equipment and techniques unfamiliar to the ordinary person.” Id. at 91.

        The leading case on whether expert testimony is required to prove a negligence claim is

FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84 (Tex. 2004). That case involved a tractor-


1
  On appeal, Polito has abandoned his theory that the sound of the radio caused the accident. In his brief, Polito
states the radio noise “is irrelevant to any issue before this Court.”

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trailer accident where a coupler assembly broke loose and caused the trailer to separate from the

tractor and overturn, resulting in an accident. Id. at 86. The driver of the tractor-trailer was

injured and sued FFE alleging that the trailer was defective because the bolts and plates

anchoring the upper coupler assembly to the trailer were missing or weak or both due to rust and

inadequate torque. Id. at 87. The driver also alleged FFE failed to timely and properly maintain

the trailer, and more specifically, its upper coupler assembly. Id. The trial court concluded that

expert testimony was required to establish the applicable standard of care, but no expert

testimony was presented. Id. Accordingly, the trial court granted FFE’s motion for directed

verdict. Id. The court of appeals reversed, concluding expert testimony was not necessary

because “‘the inspection and detection of loose and rusty bolts connecting parts of a trailer’ was

not a factual inquiry beyond the experience of the layman.” Id. Reviewing the issue de novo,

the Texas Supreme Court concluded expert testimony was required, reasoning:

                Few people not involved in the trucking industry are familiar with
        refrigerated trailers, the mechanisms for connecting them to tractors, and the
        frequency and type of inspection and maintenance they require. While the
        ordinary person may be able to detect whether a visible bolt is loose or rusty,
        determining when that looseness or rust is sufficient to create a danger requires
        specialized knowledge. Therefore, the layman does not know what the standard
        of care is for the inspection and maintenance of the upper coupler assembly,
        kingpin, and base rail of a refrigerated trailer.

Id. at 91.

        Similarly, in Simmons v. Briggs Equip. Trust, 221 S.W.3d 109, 111 (Tex. App.—Houston

[1st Dist.] 2006, no pet.), the plaintiff was using a Trackmobile 95TM Mobile Rail-Car Mover

(TrackMobile) to move railcars when a fire started in the TrackMobile’s engine department,

injuring the plaintiff. The plaintiff alleged a failure in the TrackMobile’s hydraulic system and

hoses caused the fire. Id. at 112. The plaintiff further alleged that Briggs, which was responsible

for the maintenance and repair of the TrackMobile, failed to inspect and/or repair the hoses in the

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TrackMobile prior to the incident, resulting in plaintiff’s injuries. Id. at 113. Briggs argued that

expert testimony was required to establish the standard of care for the inspection and

maintenance of hydraulic hoses on the TrackMobile. Id. at 114. Applying the legal standard

established in FFE, the Houston court held that expert testimony was required, reasoning:

               Here, the record reveals that the maintenance and service of a
       TrackMobile vehicle involves specialized equipment and techniques unfamiliar to
       a lay person. Few people not involved in the rail-car industry are familiar with
       rail-car movers, the functioning of their engines and other internal parts, or the
       frequency and type of inspection and maintenance they require. A maintenance
       company’s practices and procedures and industry standards with respect to the
       inspection and maintenance of a TrackMobile or other rail-car mover engine are
       not matters within a lay person’s general knowledge.

Id. at 114-15 (citations omitted).

       The instant case also involves specialized equipment unique to taxi cabs. Both the

specialized equipment and the manner of its use are unfamiliar to a lay person. Few people not

involved in the taxi industry are familiar with the dispatch equipment, the manner in which the

equipment functions, and, most importantly, the manner in which that equipment needs to be

placed for access by taxi drivers. A taxi company’s practices and procedures and the industry

standards with respect to the placement of dispatch equipment in a taxi cab are not matters within

a lay person’s general knowledge. See id.; see also Schwartz v. City of San Antonio, No. 04-05-

00132-CV, 2006 WL 285989, at *4 (Tex. App.—San Antonio Feb. 8, 2006, pet. denied)

(concluding that what a power company’s practices and procedures should be, or what industry

standards are, when a circuit breaker within an electrical distribution is tripped are not within a

person’s general knowledge).

       We note that Polito has not based his negligence claim on the mere fact that Carreon’s

taxi cab was equipped with dispatch equipment. In fact, it would seem that by its very nature, a

taxi cab would necessarily have to be equipped with dispatch equipment in order to operate as a

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taxi cab. Instead, Polito’s negligence claim is based on the placement of the equipment. Based

on the evidence presented, we know that the placement of the dispatch equipment is governed by

industry standards; however, no evidence was presented to establish what those industry

standards are. Although a lay person may be able to determine whether something inside a car is

a distraction, the standard of care applicable to the placement of specialized equipment within a

taxi cab, which is necessary for its operation and is governed by industry standards, is not within

a person’s general knowledge. Accordingly, expert testimony was necessary to establish that

standard of care. 2

                                               CONCLUSION

        Because expert testimony was required to prove Polito’s negligence claim against Yellow

Cab but none was presented, we reverse the trial court’s judgment and render a take nothing

judgment in favor of Yellow Cab.

                                                      Karen Angelini, Justice




2
  Because we hold the evidence is legally insufficient with regard to the standard of care element of Polito’s
negligence claim, we do not address Yellow Cab’s challenges to the breach and foreseeability elements.

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