(CN) - Exemplary damages are not available to the mother and son rear-ended by an elderly bus driver with a history of crashes, an appeals court ruled.
The June 24, 2010, accident occurred on Highway 281 when Arturo Arredondo failed to stop the charter bus he was driving in time, and slammed into the back of a pick-up truck driven by 21-year-old Robert Perez.
Perez and his mother both suffered injuries in the crash, and they filed suit in Brooks County, Texas.
While the family accused Arredondo of negligence, they sought to hold Arredondo's employer, Cusa KBC dba Kerrville Bus Co., liable for gross negligence and negligent hiring, among other things.
Arredondo was 73 years old at the time of the trial in early 2013. He testified that he had driven 18-wheel trucks since he was 16 and that he had been driving school buses for the last seven years while also working for Kerrville.
Within a month of Kerrville's hiring of him in summer 2007, Arredondo hit two fixed objects - a parked car and a "walk/don't walk" sign - and lost his job. Arredondo's termination form had included the comment, "DO NOT RE-HIRE," but with retraining courses under his belt he was rehired in 2008.
In April 2009, Arredondo drove a busload of passengers to Georgetown, Texas, instead of George West, Texas. He was also involved in accidents that July and in April 2010, after which he received more retraining. The accident involving the Perez and his mother took place two months later.
Though a jury ordered Kerrville to pay Perez and his mother $1 million award for gross negligence, the court omitted that number in a judgment notwithstanding the verdict.
The San Antonio-based 4th Court of Appeals affirmed 2-1 on Dec. 3.
To prove gross negligence, Perez and his mother had to demonstrate that Kerrville did not care about the consequence of its decision to keep Arredondo on the payroll, the court noted.
"KBC tested Arredondo's driving skills when it hired him," Justice Karen Angelini wrote for the majority. "After every chargeable incident, it gave him written warnings pursuant to the collectively bargained progressive discipline policy, and it retrained him."
Perez was also properly denied damages based on past and future earnings capacity.
"The jury could have reasonably concluded that Perez was voluntarily unemployed before the accident, that his injuries at the time of trial had healed, and the he was voluntarily unemployed after the accident," Angelini wrote.
Justice Rebeca Martinez wrote in dissent that the evidence was sufficient to persuade the jury "that KBC's decisions to terminate indefinitely, and yet rehire Arredondo as a driver despite a driving record with two collisions, and/or its subsequent decision to maintain his employment after four additional safety offenses mandating discharge, when viewed objectively from KBC's perspective at the time, involved an extreme risk of harm to other drivers and passengers."
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