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Custom Transit, L.P. v Flatrolled Steel, Inc.

Case No. 14-10-00936-CV (TX Ct. App. 14, Jun. 14, 2012)

Custom Transit, L.P., Custom Operations, LLC, and Richway Cartage, Inc., appeal from a judgment in favor of Flatrolled Steel, Inc. following a jury trial.

We affirm the trial court’s judgment as to contract damages and attorney’s fees awarded against Custom Transit and Custom Operations. We reverse the trial court’s judgment as to actual damages for negligence and exemplary damages awarded against Richway, and render judgment that Flatrolled take nothing from Richway.

BACKGROUND



I. The Parties



Flatrolled is a Houston-based company that buys and sells carbon flatrolled steel, which is rolled into large coils weighing many tons. Flatrolled processes the coils at its facility in Houston using machinery that unrolls the coils and cuts the steel into sheets that can be packaged and shipped to its customers. These sheets are used to manufacture items such as computer cabinets, electrical boxes, ductwork, and roadway guardrails. Uses such as these require steel with a good surface that can be painted.

Flatrolled obtains some of the steel coils it buys from trading companies; these companies in turn buy coils from foreign manufacturers and then ship them into the Port of Houston. The coils are shipped in large sealed “cans” to protect them during transit.

Flatrolled entered into a direct discharge agreement with Custom Transit, under which Custom Transit agreed to provide direct discharge services in connection with at least eight vessels that delivered steel coils into the Port of Houston in 2006. As a direct discharge company, Custom Transit took possession of steel coil shipments at dockside immediately as stevedores unloaded them from the vessels and arranged for delivery of the coils to Flatrolled’s Houston facility.
 

 

Judge(s): William J. Boyce
Jurisdiction: Texas Fourteenth Court of Appeals
Related Categories: Contracts , Maritime , Torts
 
Court of Appeals Judge(s)
William Boyce
Jeff Brown
Sharon McCally

 

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schronk v. city of burleson, no. 10-07-00399-cv, ___ s.w.3d ___, 2009 wl 2215081, contemporaneous conduct by the owner that caused the injury”); crooks, 138 s.w.3d at 23 (s.d.n.y. 2011) (rejecting daubert challenges to testimony from expert marine surveyor reasons.”). flatrolled does not argue otherwise. considered as that of the property owner.” speedy stop, 337 s.w.3d at 849. to you in 2006 were, in large part, at the wrong price? were they? determined to be damaged due to the presence or rust or surface blemishes. o’keefe of them; or the value of less-than-prime steel. against a possessor of land.” torrington, 46 s.w.3d at 838 (citing clayton w. williams, critical aspects of an expert’s testimony has not taken place either by the expert or others affirmed in part, reversed in part, and judgment rendered in part; opinion filed the property safe.”); del lago partners, inc., 307 s.w.3d at 788 (wainwright, j., to opine as the owner of flatrolled who occupies a managerial position with duties related such notation. mechanism — and omitting all elements of an entirely separate and distinct theory. see stop our machine . . . we lose money.” submitted a negligent undertaking theory against richway in the jury charge. see id.7 paid the correct amount. and 50 percent to richway; 2. o’keefe evidence supporting the jury’s award in answer no. 3(b) pertaining to the diminished agreement; perform services, failure to exercise reasonable care in performing those services, rusting.” in any event, o’keefe adequately addressed the alternative explanation that the 31 that had not been processed yet, and then apply the discounted price per pound for less-than-prime steel. the trial court expressly overruled this motion in the final judgment. these steps preserved a contention 2 helped provide services to customers? iv. recovery in tort against richway with respect to coils for which flatrolled had only an invoice, bollman testified under this standard “it is not necessary for a testifying expert to have personally a. yes. the final judgment ordered that flatrolled recover actual damages of $959,316.88 94 s.w.3d at 5-6 & n.3. a negligent activity claim focuses on whether flatrolled was exploration co. v. fmf assocs. 1990-a, ltd., 249 s.w.3d 380, 389 & n.32 (tex. 2008)); leases on the warehouses custom transit used to store flatrolled’s steel coils. some of have been submitted, the question is immaterial, and it cannot support a judgment for 41 awarded damages of $231,472.20 for conversion; $326,721.28 for negligently lost coils; and $632,595.60 legally and factually insufficient to support the jury’s $632,595.60 award in answer no. good condition when it arrived in the port of houston in july 2006. when o’keefe was entered as to r enterprises, which is not challenged on appeal. the evidence falls within this zone of reasonable disagreement. id. at 822. injured “by or as a contemporaneous result of the activity itself,” see keetch, 845 s.w.2d 11 harris county, texas, immediately before and immediately after the damage to flatrolled on another to take protective action based upon special circumstances or the relationship custom transit does not specify the nature of the statistical analysis that it instead of prime steel. bollman linked the damaged coils to invoices reflecting the sale specific factual predicates were established. without any determination that the specific factual affidavit: “since the affidavit’s already there, go with the affidavit. say ‘here are the numbers in the not be allowed to testify under the property owner rule because he lacked the requisite the evidence at trial was disputed regarding the identity of the leaseholder for the olivo, 952 s.w.2d at 529. this case involves the latter circumstance. see id. (“the a. yes. surveyor working in ports along the gulf of mexico, including the port of houston. as a see id. in light of this disposition, we need not address the second and fifth issues raised by custom 24 coils that bollman visually inspected. bollman demonstrated his familiarity with the counterclaim against flatrolled. it further argues that this asserted error also requires reliability concerns focus upon personal knowledge or experience.”). “if testing of of the steel coils. bollman testified that problems arise when the coils have “been having response to question no. 13, the jury awarded $326,721.28 as damages for the lost coils. a person of ordinary prudence under the same or similar circumstances.” see texas pattern jury charge coils’ steel surfaces inside the cans. in turn, this moisture caused rust and staining on the contract claim. allowed rust-causing condensation to form on the coils as temperatures fluctuated. and custom transit agree to a direct discharge agreement, regarding the transport of steel aside a verdict only if the evidence is so weak or if the finding is so against the great original) (quoting astra aktiebolag v. andrx pharm., inc., 22 f. supp. 2d 423, 488 similar event, might reasonably result therefrom. there may be more than one proximate cause of an the warehouses without payment. other testimony indicated that the leases were held by the trial court signed a final judgment in flatrolled’s favor on july 9, 2010. on appeal, custom transit does not challenge o’keefe’s qualifications to testify remaining, so i’d expect it at least to be 10 percent, if not a little more.” this evidence demonstrates, at most, that richway owned equipment used by on texas rule of civil procedure 279, flatrolled argues that any necessary but omitted damaged coils identified by bollman were listed in plaintiff’s exhibit 63, a spreadsheet defendant was negligent if (1) the defendant undertook to perform services that it knew or custom transit assails the inclusion of an accord and satisfaction instruction in these factors deprive o’keefe’s testimony regarding cargo damage of all validity so as to production, credit, and shipping departments within flatrolled. bollman affirmed that he investigate flatrolled’s complaints about the invoices. determining whether expert testimony is reliable. e.i. du pont de nemours & co. v. awarded against custom transit and custom operations. we reverse the trial court’s every reasonable inference that would support it. city of keller, 168 s.w.3d at 822. if liability cases are similar to undertaking cases in that the plaintiff seeks to impose a duty signed approximately eight months before trial, was based on 1,217 unprocessed coils. plaintiff’s exhibit q. among at least those three entities, correct? s.w.3d at 801 (citing robinson, 923 s.w.2d at 557). part on expert testimony supporting flatrolled’s damage claim predicated on damaged in the follows: $632,595.60, which corresponds to the jury’s determination in answer no. 3(b). award in answer no. 3(b) pertaining to the diminished value of damaged coils. awarded $632,595.60 as the “difference between the market value of the property in i. contract claims pertaining to custom transit custom transit’s only appellate challenge to question no. 2 — in which the jury “not necessarily referable to the negligent activity question submitted to the jury.” see damaged coils among the coils that had not yet been processed. he also explained his weather-sensitive coils at issue. transit’s conduct in handling the coils; asserted breaches of any duties owed to flatrolled bollman testified that the market value of prime steel is higher than the market value of omitted. flatrolled stresses that richway objected to question nos. 12 and 16 at the substantially equivalent positions and duties.” id. second, “[t]he property owner rule bollman also testified that 55 or 54 of the coils were classified as being damaged separate breach-of-contract damage awards for lost and undelivered coils, of her property even if she is not an expert and would not be qualified to testify to the drawn only limited conclusions regarding the timing and potential causes of the been damaged by rust or blemishes and subsequently were sold as less-than-prime steel under the direct discharge agreement — rests on a contention that question no. 2 was challenge to question no. 4, we conclude there is no basis to disturb the jury’s finding in cause” slightly in light of transcontinental insurance co. v. cump, 330 s.w.3d 211, 222-23 (tex. 2010). temperature changes over and over and over again multiple times that cause the sweating q. and one of those customers was flatrolled steel back in 2006, custom transit, l.p., custom operations, llc, and richway cartage, inc., some of the steel coils obtained by custom transit for flatrolled were stored in pattern jury charge 71.8 cmt. (2010). the distinction is not material to the resolution of this appeal. the absence of a notation on the checks themselves. flatrolled contends that an express (tex. 1959). the most recent edition of the pattern jury charge revises the definition of “proximate id. one cluster of questions in the jury charge pertained to lost coils. the jury reliability of the evidence flatrolled proffered at trial to support the jury’s $632,595.60 obligations under the direct discharge agreement found in question #1?” this question conclusion categorically exclude each and every possible alternative cause in order to render the items such as computer cabinets, electrical boxes, ductwork, and roadway guardrails. sample for purposes of computing the total number of damaged coils among the 2,455 the number of already-identified damaged coils by the number of processed coils to locate surveys for the vessels to determine conditions when the vessels left their ports of ___, 2012 wl 1564014, at *4 & n.2 (tex. app.—houston [14th dist.] april 24, 2012, testing in support of the natural forces of labor theory is explained by ethical companies in turn buy coils from foreign manufacturers and then ship them into the port its contract claim against custom transit in the final judgment. see hatfield v. solomon, 316 s.w.3d 50, negligence and gross negligence claims against richway. flatrolled had no contractual are simply incorrect, and a trial court is not required to admit evidence connected to at *19 (tex. app.—waco july 22, 2009, pet. denied). this principle applies to an expert in the course of performing direct discharge services for flatrolled. richway itself had sustained actual loss or injury as the result of an underlying tort.”); see also fed. express has surface defects.” if steel has any surface defects, “[i]t’s not going to be prime.” circumstances.” see texas pattern jury charge 2.1 (2010). marine surveyor at trial regarding representative sampling. every piece of cargo for damage “unless it’s a very, very small shipment.” he continued, on this record, no act or omission by richway has been identified as part of affirmative, 10 damage to all the coils. you can’t open them all.” he agreed with a statement that 18 grounds that o’keefe (1) personally “inspected only three or four of the 105 processed for.” bollman testified that flatrolled received no notification of problems with the coils comply is material . . . .” the jury then was instructed as follows: “failure to comply satisfies the specified debt. see cleveland reg’l med. ctr., l.p. v. celtic props., l.c., its equipment and land was used in operations? b. challenges to bollman’s testimony instruction during the charge conference, which was overruled; custom did not object to o’keefe went to flatrolled’s facility to look at coils “at least eight or nine times” 22 s.w.3d at 863. “the parties must specifically and intentionally agree to the discharge 33 damaged coils and their condition to testify about diminished market value under the s.w.2d 716, 720 (tex. 1995)); see also nat’l plan adm’rs v. nat’l health ins. co., 235 s.w.3d 695, 704 warehouses. flatrolled also points to a statement from richway’s website: “we occupy unprocessed coils, we note that o’keefe explained the practical difficulties involved in nor were any such instructions or definitions sought by [the plaintiffs or the defendant] . . ltd., 337 s.w.3d 846, 852-53 (tex. 2011) (citing porras v. craig, 675 s.w.2d 503, 504 between the parties.” id. “in premises liability cases, like undertaking cases, a possessor words, if one undertakes to make the premises safe for others, he or she owes a duty to a. identifying the negligence theory submitted in the jury charge origin” and did not result from saltwater. he concluded that the rust on the coils was 1. “. . . richway voluntarily assumed the duty alleged by flatrolled” because 40 28 make that testimony the equivalent of “no evidence” or almost “no evidence.” see cedar concerning the economic loss rule; we also need not address the fifth issue, in which under rules 194 and 195. flatrolled also invoked the property owner rule as a basis for 509 u.s. 579, 588-89 (1993). expert testimony is admissible when (1) the expert is flatrolled’s claim that richway was liable for custom transit’s conduct based on without any explanation.’” pink, 324 s.w.3d at 296-97 (quoting arkoma basin a. we help out. yes. those circumstances, expert testimony is unreliable if there is simply too great an q. so, the work that richway cartage did, was that work carried out by on negligence, premises liability, and unique statutory duties applicable only to ice richway, in contrast, contends that flatrolled’s tort claim and the jury submissions are at 264, or whether there was “affirmative, contemporaneous conduct” by richway that conclusions, then jurors must be allowed to do so. id. at 822. accordingly, the ultimate less-than-prime steel at the relevant time. custom transit’s appellate challenge focuses claim. for purposes of this analysis, we assume that flatrolled adequately pleaded a negligent “[a]ny time there’s a problem on the ship, everybody finds out. i mean, everybody starts legal and factual sufficiency of the evidence. legal insufficiency challenges to compute the number of damaged coils among those that had not yet been 38 39 pointing to contradictory testimony from hardy in which she (1) denied the existence of “the market value of the property at the time it was agreed to be delivered” totaled in the fourth issue on appeal, custom transit challenges the sufficiency and for all damaged coils by adding (1) bollman’s $290,058 estimate for the diminished market value of the 19 q. . . . mr. bollman, what did you do when they started overcharging steel that diminished its value by making it unsuitable for use in finished products looking” cans for processing, which meant that the remaining cans were more likely to custom transit and richway have briefed them. according to o’keefe, rust on cargo is “one of the main things we deal with.” o’keefe because flatrolled sells only prime steel “in 99 percent of our cases.” he added, “the points to testimony by its owner, mike bollman, regarding conversations he had with flatrolled, “richway voluntarily assumed a duty, not part of a contract, to warehouse recovery based on a negligent activity, it does not support liability based on the duty by custom transit; asserted damage to the coils attributed to custom transit’s handling a reviewing court is not required to ignore gaps in an expert’s analysis or assertions that * * * good condition). consistent with entex, we conclude that the tort judgment against determine the extent of damage to coils that have not yet been removed from their storage steel obtained and sold by flatrolled; the effects of moisture on steel; and the resulting ii. the dispute rule of evidence 703, expert engineer properly relied on reports from steel purchaser’s conditions, would increase the risk of harm to the coils through corrosion or jury to multiply the average weight per coil of 18,416 pounds by the number of additional damaged coils consistent with this testimony, flatrolled highlights additional testimony establishing that photographing them required flatrolled to interrupt its processing and “every time we to use reasonable care was of no legal consequence.”) (citing triplex commc’ns, inc. v. riley, 900 “impose a duty on another to take protective action based upon special circumstances or bollman demonstrated personal familiarity with the condition and value of the coils o’keefe opined that using a representative sample is an appropriate way to we conclude that the evidence proffered during bollman’s testimony sufficed to undertaking and negligent activity in torrington, 46 s.w.3d at 837-38. “while texas relationship with richway. we next address the fourth issue on appeal, which challenges the jury’s award for skating rinks under tex. health & safety code ann. § 760.006(a) (vernon 2010); jury evidence from giving weight to the only evidence offered to prove a vital fact; (c) the entities such as corporations are treated “the same as natural persons for purposes “the more times they sweat and then they dry, the wors[e] the damage is.” custom transit employee robbie hardy: damaged coils identified by flatrolled; the market value of coils; or whether custom a. the jury’s findings pet.). richway cannot be affirmed based on richway’s asserted status as a “warehouse” or on which is rolled into large coils weighing many tons. flatrolled processes the coils at its . and then . . . i sell it.” he also testified that he manages flatrolled’s 15-person sales duty. although the existence of a duty in tort is characterized as a question of testified, “if there is a problem, i have to try to establish how much of that cargo’s been flatrolled and served as flatrolled’s representative at trial. he testified about the that an invoice indicating a sale at a less-than-prime price reflected damage to the coil as a threshold matter, we agree with custom transit’s contention that it did not both contentions in the course of overruling the first and fourth issues on appeal, we fourteenth court of appeals determination that the factual predicates giving rise to a legal duty were satisfied, the defendants’ failure flatrolled had opened 1,317 as of the time of trial — representing 53 percent of the total (tex. app.—houston [1st dist.] 2011, no pet.) (distinguishing among duties predicated testified that “[t]he differential in the prime versus non-prime, what we took a loss on, is “[i]f you’re dealing with hundreds of coils, the only way to do it is to take a servs., llc v. carter, 331 s.w.3d 563, 569 (tex. app.—houston [14th dist.] 2011, no the jury how it could determine which coils he personally had examined. the 105 activity theory, the deemed finding mechanism does not operate here to fill in the gaps whirlpool corp., 298 s.w.3d at 642-43. custom transit’s second, third, and fourth grounds for challenging o’keefe’s to recover on its contract claim against custom transit in the final judgment. with its payment obligation to custom transit under the direct discharge establishes conclusively the opposite of the vital fact. city of keller v. wilson, 168 the prime price and the subprime price, correct?” bollman answered: “yeah. the non- under similar circumstances.”); see also id. § 7.102(a)(13) (“‘warehouse’ means a person the testimony indicated that richway held these leases and allowed custom transit to use question no. 3 asked the jury to find “[w]hat sum of money, if any, if paid now in 20 purely conclusory. rate for his opinion; and (5) did “nothing to rule out any alternative causes of any damage steel coils at issue in this case; bollman’s qualifications under speedy stop’s first prong according to o’keefe, 10 percent is generally accepted in the maritime survey industry q. in two thousand — prepared by flatrolled and bills of lading. o’keefe also referred to his affidavit, found that custom transit failed to comply with the agreement; and made means that question no. 2 was infected by the asserted error in submitting an accord and bollman’s testimony “because the fact is that a property owner can testify to market transit and richway breached duties owed to flatrolled. the trial court ruled that improper conditions at these richway facilities.” representative sampling, it limited the scope of his testimony on this point to statements contained in his an opinion or otherwise.’” cooper tire & rubber co. v. mendez, 204 s.w.3d 797, 800 lack of relevant testing to the extent it was possible, either by the expert or others, is one in the seventh issue on appeal, custom transit challenges the trial court’s award inspected an object as a prerequisite to offering expert testimony regarding that object.” the property owner rule supported award for diminished market value of pumps found that custom transit converted flatrolled’s steel coils; found by clear periods, as they had been in the past for brief, temporary storage.” another, either gratuitously or for compensation.” id. at 837 (citations omitted); see also knows the market value for steel in the industry, and knew the market value for steel coils order to provide good service to the customers, right? discharge company, custom transit took possession of steel coil shipments at dockside 1969)); see also huang v. don mcgill toyota, inc., 209 s.w.3d 674, 681 (tex. app.— custom transit asserts that this instruction was erroneous because there is legally denied) (“exemplary damages are not available unless the plaintiff establishes that it discharge agreement. robinson, 923 s.w.2d at 557. custom transit contended in its daubert/robinson motion 5 s.w.3d 802, 810 (tex. 2005) (citing robert w. calvert, “no evidence” and “insufficient occurred from exposure to damaging elements such as heat or contaminants during in less-than-prime condition was 35 cents per pound. to compute diminished market appeal. 953 s.w.2d 706, 720 (tex. 1997). amount. that the correct price to be paid by flatrolled was “25 cents inside the port, 35 cents 761 s.w.2d 800, 802-03 (tex. app.—houston [1st dist.] 1988, no writ) (expert marine steel is classified as less-than-prime even if it is not completely rusted over, or if it is (s.d.n.y. 2002)); see also cedar petrochemicals, 769 f. supp. 2d at 287 (quoting u.s. “freshwater in origin, from condensation.” he further concluded that storage of the coils to question no. 3, we do not address custom transit’s conditional challenges in issue two concerning coils” and did not inspect any unprocessed coils; (2) conducted no tests or statistical liability is and whose fault it is.” he has performed hundreds of surveys on steel coils; which each is liable.” in addition, the final judgment ordered that flatrolled recover by knowledge, skill, experience, training, or education may testify thereto in the form of falls within the ambit of texas rule of evidence 701 and therefore does not relieve the of flatrolled’s coils in warehouses that were not climate-controlled. 35 62, which was admitted into evidence at trial, contained revised figures based on 1,138 unprocessed coils. payment tendered and accepted.” lopez v. munoz, hockema & reed, l.l.p., 22 s.w.3d facility in houston using machinery that unrolls the coils and cuts the steel into sheets engaged in the business of storing goods for hire.”). that prime steel “is of good surface quality.” he testified that prime steel “doesn’t have transit accepted and cashed flatrolled’s checks paying the invoices at the lower rate, at in contract and against richway in tort for a single, indivisible injury. rule of civil procedure 329b. these motions reiterated custom transit’s 9c1505, 2011 wl 1651239, at *2-3 (n.d. ill. may 2, 2011) (under daubert and federal proffered testimony admissible.’” u.s. info. sys., inc. v. int’l bhd. of elec. workers processing and sale, flatrolled chose the cans that were in the best condition because the duty to use reasonable care may arise when a person undertakes to provide services to in closing argument, flatrolled’s counsel urged the jury to compute the diminished market value occurrence, then no act or omission of any other person could have been a proximate cause.” the first combination of custom transit, custom operations, and richway up to the amounts for 2. testimony from richway’s corporate representative supports a determination necessitating use of a representative sample to compute the number of additional partners, inc. v. smith, 307 s.w.3d 762, 776 (tex. 2010) (“we have recognized that satisfaction rule by allowing flatrolled to recover simultaneously against custom transit q. and they help out with the trucks for delivery, right? us at the outset to identify the precise nature of the negligence submissions against 3(b) pertaining to damaged coils because his testimony is conclusory, speculative, and liability claim was insufficient.” id. (citing olivo, 952 s.w.2d at 529). “premises flatrolled’s warehouse. o’keefe opined that the rust on the coils is “all freshwater in flatrolled also obtained jury findings in its favor against custom transit on flatrolled’s claims breach-of-contract counterclaim against flatrolled; (2) the economic loss rule forecloses decanning coils and exposing them to further damage. cf. taber v. roush, 316 s.w.3d (rejecting negligent activity as basis for liability because defendant “was engaged in no coils satisfied the property owner rule. see taiwan shrimp farm village ass’n, inc., flatrolled designated bollman as a fact witness and an expert witness. the trial entities are identified collectively as “custom transit” below. used to store flatrolled’s steel coils before delivery. some testimony indicated that “individual, personal knowledge” regarding the “value of individual items.” question was submitted without instructions on premises liability factors). q. does custom transit pay richway cartage anything for the use of analysis to support his opinion; (3) cited no publications; (4) could not specify an error corp. v. dutschmann, 846 s.w.2d 282, 284 (tex. 1993) (per curiam) (“recovery of custom transit used equipment owned by richway, including trucks and forklifts, outside the port;” and (2) hardy confirmed the invoices showing a higher price were instead, the duty inquiry focuses on injuries caused by contemporaneous actions or “never in 35 years . . . i’ve never been asked to establish an error rate, and i’ve done at the hearing’s conclusion, the trial court expressly ruled that o’keefe could not testify custom transit’s corporate representative, chance richardson, testified as follows: late 2006 was 50 cents a pound; during the same period, the market value for steel coils (tex. 2000). addressing the source of any duty owed by richway to flatrolled requires enterprises,2 flatrolled regarding problems with the coils at the beginning or the end of the voyages local union no. 3, afl-cio, 313 f. supp. 2d 213, 235 (s.d.n.y. 2004) (alteration in custom transit and richway present seven issues on appeal. they contend that qualified, and (2) the testimony is relevant and based on a reliable foundation. mendez, trial court’s judgment violates the one satisfaction rule by awarding both contract and tort 323 s.w.3d 322, 335 (tex. app.—beaumont 2010, pet. denied) (“acceptance of a employee, who inspected 466 of 729 steel coils for rust, and others in formulating caused flatrolled’s injury, see del lago partners, inc., 307 s.w.3d at 776. the activity 15, which asked, “do you find by clear and convincing evidence that the harm to flatrolled. o’keefe testified that he has more than 30 years of experience as a marine agreement regarding transport of steel coils from the port of houston; we again perform a separate analysis of custom transit’s contentions that the o’keefe relied on conversations with bollman and information obtained from we likewise reject flatrolled’s alternative suggestion that question nos. 12 and 16 for breach of contract predicated on unpaid or underpaid invoices for services provided to b. inclusion of an accord and satisfaction instruction in question no. 4 richway in question nos. 12 and 16. 15 discharge services, and bills of lading sometimes were issued under richway’s name to international transport). custom transit appropriately and vigorously cross-examined subjective interpretation; (3) whether the theory has been subject to peer review and/or “because they were good when they left the ship.” additionally, o’keefe performed a richway is improper; and (7) the attorney’s fees award against custom transit is court signed an order on march 23, 2009, in which it ruled that bollman could not proffer negligence questions do not submit any elements specific to a negligent undertaking the submissions in question no. 3 were framed in terms of the “market value of court’s judgment against richway if there is sufficient evidence to support such implied ass’n, inc. v. u.s.a. shrimp farm dev., inc., 915 s.w.2d 61, 71 (tex. app.—corpus multiple claims against custom transit, custom operations,1 (“the facts of this case cannot support a negligent activity cause of action because of the — is that the documentation of damage to the coil?” he answered, “yes.” richway’s officers also were officers of custom transit or bore responsibility for hollering because nobody wants to get blamed for anything that the ship’s responsible based on the contents of the accompanying invoices showing that the coils had been sold olivo, 952 s.w.2d at 529 (“the premises defect elements cannot be deemed found a. right. charge incorporated unique statutory duty to inspect ice skating surface and maintain it in o’keefe on these points at trial. the impact of these points was for the jury to determine. 2009); see also ford motor co. v. ledesma, 242 s.w.3d 32, 39 (tex. 2007); gammill, custom transit’s operations. o’keefe’s expert testimony as unreliable under daubert, 509 u.s. at 588-89, and the coils to flatrolled’s houston facility. satisfaction instruction in question no. 4. having rejected custom transit’s appellate according to bollman, the average weight of the 105 coils was 18,416 pounds. flatrolled had no contract with richway. the form of this instruction in the trial court and does not challenge its content on appeal. depicting rust on some of the 105 coils. bollman testified that he went to richway’s analytical gap between the data and the opinion proffered. mendez, 204 s.w.3d at 800. flatrolled relies upon the following contentions to establish circumstances giving on appeal, custom transit assails bollman’s testimony on grounds that it is torrington, 46 s.w.3d at 838. so do flatrolled’s fifth, sixth, and seventh contentions. in addition to its contract recovery against custom transit, flatrolled also pursued response to question no. 16, which asked whether the negligence of the listed parties — and determined in the course of processing them that 105 coils were damaged. we overrule the first issue on appeal. managerial positions with duties related to the property, or employees of the entity with 6 instead of delivering them promptly to flatrolled. according to flatrolled, temperature having concluded that the evidence supported submission of the challenged that can be packaged and shipped to its customers. these sheets are used to manufacture . .” id. at 5. “therefore, although the jury charge was correct with regard to a theory of superintendent.” bollman testified that he could not answer a question asking him to tell the case was tried to a jury in march and april 2009. the jury returned a verdict the trial court’s final judgment orders that flatrolled can recover $479,658.44 in torrington concluded that negligent undertaking liability could not properly be dispute and an unmistakable communication to the creditor that tender of the reduced the texas supreme court highlighted the distinction between negligent on march 24, 2009, custom transit filed a separate motion seeking to exclude prime value of the same quantity of steel. over custom transit’s objection, bollman 3. richway’s website “showed its control of warehousing at those locations.” from custom transit, along with attorney’s fees, costs of court, and pre- and post- the ones that look the worst or [might be] . . . more heavily affected are the ones that are no pet. h.). ran a couple of coils to show us some of the rust that was on the coils . . . .” he added, rust all over it and it’s able to be painted, and the paint will stick to it.” he added that sides were “stuck with what’s in the affidavit,” o’keefe also was questioned during trial about the 1,138 reasoning to negligent undertaking. id. not conclusory because he sufficiently explained the basis for a determination that coils show that the injuries were directly related to the activity itself.”). the evidence allows only one inference, neither jurors nor the reviewing court may in response to question no. 14, the jury attributed 50 percent of the injury-causing 13 the property.” the term “market value” was defined as “the amount that would be paid 7 because the focus here is on negligent activity, the inquiry does not turn on an accompanying work order reflecting a notation of rust or staining; and approximately 14 back as square as they were. they’ll telescope . . . and then you’ve got storage determine a percentage; and then (2) applying a percentage multiplier to the number of manages a sales force of 15 people; sets prices for selling steel; and supervises 122 coils to be damaged based on this representative sample. 26 the range arises because different figures were used at trial, and in o’keefe’s affidavit, for the rates.” charge conference on no-evidence grounds, but did not object on “no duty” grounds and less-than-prime steel. in arguing undue speculation, custom transit challenges this testimony on cg-b, 2010 wl 1994906, at *6 (s.d. ala. may 17, 2010) (challenges to proffered bollman testified that the market value for steel coils in prime condition in mid- to to approximately 122.3 testimony from bollman because flatrolled did not comply with its discovery obligations flatrolled entered into a direct discharge agreement with custom transit, under predicates were met, the question did not submit a controlling issue. in other words, absent any familiarity with the coils does not require testimony specifying the precise number of scientific methodology.” whirlpool corp. v. camacho, 298 s.w.3d 631, 639 (tex. c. conclusion regarding challenged damages testimony 1992) (“recovery on a negligent activity theory requires that the person have been port of houston in greensport industrial park.” richway’s website referred to custom 972 s.w.2d at 724. “testing is not always required to support an expert’s opinion, but “the accord and satisfaction defense rests upon a contract, express or implied, in damages against it because the underlying negligence recovery is foreclosed. we agree. the jury made separate findings for lost and undelivered coils in answer no. 3(a) and work back in 2006 for richway cartage? undamaged and damaged pumps). contrary to custom transit’s suggestion, demonstrating bollman’s personal at a less-than-prime prices; another 37 coils were classified as being damaged based on “[w]e all met and went through all the coils that had been delivered to flatrolled in the facility, inspected some of the coils, and took pictures of some of the coils. bollman q. so, employees from other richway-related entities would perform 639 (“for the negligent activity theory of liability to be applicable, the evidence must complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence in every no evidence review if there is no favorable evidence (situation (a) immediately as stevedores unloaded them from the vessels and arranged for delivery of a. not to my knowledge. goods that a reasonably careful person would exercise under similar circumstances,” are regarding injury occurring on a dry-docked vessel “do not easily lend themselves to the corp., 298 s.w.3d at 642; see also in re the complaint of peter knudson, no. 08-00505- flatrolled steel back in 2006 was definitely a joint effort between custom them separately. q. and the richway family of customers [sic] jointly work together in to flatrolled’s “interwoven” claim for breach of contract against custom transit theories of alter ego, piercing the corporate veil, and “single enterprise.” fail to comply with its obligations under the direct discharge agreement found in q. and as part of custom transit’s providing direct-discharge services, applying o’keefe’s 10 percent multiplier to these totals creates a range from approximately 122 on the the claimed violation of a separate, statutory warehouseman’s duty that “the jury was not of attorney’s fees. custom transit contends that flatrolled cannot recover such fees number of unprocessed coils. although the trial court allowed o’keefe to testify at trial regarding reduction in market value of 105 coils that were removed from their cans, processed, and so. id. the reviewing court cannot substitute its judgment for that of the trier of fact if invoices. it argues that this asserted error requires reversal as to the cluster of jury the various warehouses? on the defendant’s performance, or the defendant’s performance increased the plaintiff’s in which it a. equipment. uh-huh. a. after the first couple of times that we called her and talked to her “unreliable on its face.”4 ins. co. v. m/v handy laker, no. 96 civ. 8737(bsj), 2002 wl 32191640, at *3 & marking them up and paying the correct amount. the relationship between the parties.” see id; see also olivo, 952 s.w.2d at 529; entex, reversal as to the separate cluster of jury submissions in question nos. 2 and 3 pertaining q. now, when you did that, did anybody from custom transit ever call figure in plaintiff’s exhibit 62 and agreed that 10 percent of that figure equals “roughly” 114. because it cannot recover on its contract claim or, alternatively, cannot recover the full doing that which a person of ordinary prudence would not have done under the same or similar this conclusion dovetails with entex v. gonzalez, 94 s.w.3d 1, 5-6 (tex. app.— and “proximate rusted on only one side; he explained that “prime has no surface defects, and non-prime decan them all because you’re exposing them to further damage.” he continued, “[e]ven event, but if an act or omission of any person not a party to the suit was the ‘sole proximate cause’ of an which the parties agree to the discharge of an existing obligation by means of a lesser contemporaneous conduct by the owner that caused the injury, while premises liability risk of harm. see torrington, 46 s.w.3d at 838; restatement (second) of torts §§ 323, q. in your mind, are the various richway entities one family that all erroneously submitted an accord and satisfaction defense to the jury by way of an publication; (4) the technique’s potential rate of error; (5) whether the underlying theory they have to be decoiled.” according to o’keefe, “when you recoil them, they won’t go weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. we reject custom transit’s legal and factual sufficiency challenges to the the theory has or can be tested; (2) the extent to which the technique relies on the expert’s storing these coils in non-climate-controlled warehouses for months before delivery the trial court signed an order on march 23, 2009, in which it denied custom 105 damaged coils identified from those that were processed; and (2) the diminished market value of the has been removed because “the wrapper’s destroyed.” that the challenged testimony is conclusory. o’keefe did not merely offer “a ‘conclusion “team effort” with related companies, including custom transit, to provide direct supposed to.” rise to a duty of care flowing from richway to flatrolled: admission of o’keefe’s affidavit during trial does not waive a sufficiency challenge. see representative sample. then you have to apply the representative sample to establish a the trial court conducted a hearing on the daubert/robinson motion during trial. to which flatrolled seeks to link richway concerns storage of steel coils in non-climate- claim. we therefore conclude that question nos. 12 and 16 submit a negligent activity a property possessor’s failure to warn or make safe dangerous or defective conditions on may be sustained only when the record discloses one of the following situations: (a) a no. 14-10-00936-cv info. sys., inc., 313 f. supp. 2d at 235); cf. whirlpool corp., 298 s.w.3d at 639 a two-pronged test governs the inquiry into whether a witness properly can testify could do so, and must disregard contrary evidence unless reasonable jurors could not do particular circumstances give rise to a duty of care. see, e.g., nabors drilling, u.s.a., that the negligence submissions in question nos. 12 and 16 were immaterial as to richway. see above) or conclusively establishes the opposite (situation (d) above).” id. at 810-11. if asked to consider.” id. at 5-6. “as in torrington, the charge in this case was . . . not uses such as these require steel with a good surface that can be painted. refused to treat a broad-form negligence question as a negligent undertaking submission. punitive damages requires a finding of an independent tort with accompanying actual the parties stipulated that custom operations is jointly and severally liable in connection with that had been determined to be damaged. that at least 10 percent of the remaining unprocessed coils likely would be damaged. he to the steel coils; or bollman’s personal familiarity with the market value of prime versus on its contention that o’keefe failed to “rule out” alternative sources of damage to the the parties must mutually assent to form a new agreement to satisfy the original damaged coils that were run on the line, and examined the remaining coils in their cans at for negligently damaged coils. with respect to the negligence claims, the jury apportioned 50 percent of least raised a fact issue as to whether custom transit and flatrolled agreed to “the invoices. custom transit argues that depositing a check for a lesser amount does not q. but you would agree with me that custom transit’s work for damaged coils among those that had not yet been processed. to obtain the latter figure, counsel urged the daubert/robinson challenges, and the trial court expressly overruled both motions. the background judgment recites that “flatrolled’s only theory of recovery against richway is for and then they sweat and then they dry, then they sweat, then they dry.” he continued, a. or we short-paid the invoice by the amount that was incorrect and testimony at trial under daubert and robinson and obtained a ruling; in so doing, custom predicated on a broad-form negligence question that (1) defined “negligence,” “ordinary these other affiliate companies? allow us to sell it for.” supported by the jury’s breach of contract finding in question no. 2 and the damage awards in response error, the judgment cannot be affirmed based on violation of a duty that the jury was not v. existing data only by the expert’s ipse dixit. id. at 800-01. did not object to the omission of the additional negligent undertaking elements. relying itself had no employees as of the time of trial, and had none in 2006. richway owns damage. therefore, we reject custom transit’s contention that bollman’s testimony is damaged coils himself. he further testified that he participates in supervising production, cash, would fairly and reasonably compensate flatrolled steel for its damages, if any, that and that flatrolled sells only prime steel in “99 percent of our cases.” he observed the final judgment contains this statement: “however, flatrolled is entitled to only one based on market knowledge, sales invoices, work orders reflecting damage to specific remaining coils.” changes. such changes cause condensation to form externally on the storage cans and on warehouse is liable for damages for loss of or injury to the goods caused by its failure to 915 s.w.2d at 71 (testimony of corporation’s president and principal shareholder under “[d]oes either the work order or the invoice that’s reflected, or both, — does that show richway contends that flatrolled’s pleadings were insufficient to assert a negligent undertaking ii. damages for custom transit’s breach of contract $5 million in connection with the gross negligence finding pertaining to damaged coils.6 damages.”). we sustain the sixth issue as to richway. interstate sw., ltd., 251 s.w.3d 632, 662 (tex. app.—houston [14th dist.] 2007, pet. complained of must be such that a person using ordinary care would have foreseen that the event, or some argument that a broad-form negligence question, without more, can support a judgment activity claim. therefore, no negligence recovery is available against richway and (citing gammill v. jack williams chevrolet, inc., 972 s.w.2d 713, 726 (tex. 1998)). in to question no. 12. this question asked whether the negligence, if any, of custom * * * $326,721.28. custom transit does not challenge on appeal the jury’s $326,721.28 42 16 impermissibly speculative). is no contention that richway is liable as an owner or occupier of land based on duties obligation, and the parties’ intent is controlling.”). the checks at issue here contained no invoices were incorrect, we just started taking the invoices and — and we apply torrington’s teaching here. question nos. 12 and 16 are broad-form 21 olivo, 952 sw.2d at 529; cf. smith v. moody gardens, inc., 336 s.w.3d 816, 818-19 should have known were necessary for the plaintiff’s protection; (2) the defendant failed response to question no. 19, the jury again found by clear and convincing evidence that as negligent undertaking submissions in which certain undertaking elements have been that “richway held leases on the warehouse where the coils were stored.” transit’s motion seeking to exclude testimony from o’keefe on grounds that flatrolled s.w.3d at 389 & n.32); see also barzoukas, 363 s.w.3d at 840. bollman’s testimony is warehouse, went through every one of them.” in determining which cans to open for indicated that richway held the leases. flatrolled relies on this testimony in contending the texas supreme court subsequently explained that the robinson factors in cash by a willing buyer who desires to buy, but is not required to buy, to a willing transit and richway. “ordinary care,”10 market value of damaged cargo. see spt fed. credit union v. big h auto auction, inc., “warehouse” that was “engaged in the business of storing goods for hire,” and whether negligent undertaking elements should be deemed to be found in support of the trial (tex. 2006) (quoting tex. r. evid. 702); see also daubert v. merrell dow pharm., inc., the texas supreme court has set forth six non-exclusive factors to assist courts in theory that graham was liable for control over any negligent activities.”).12 discoloration, which are tied to the existing data by their experience in chemical asking the ladies and gentlemen of the jury to do is to award you the difference between predicated on lost or undelivered coils, and on damaged coils. damages of $479,658.44 against richway, along with pre- and post-judgment interest. rationale for using a 10 percent multiplier based on flatrolled’s selection of only the “best evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence affected so that i can protect [the charterer’s] . . . interest.” he added, “you’re trying to 4 testimony is conclusory and speculative. we again reject custom transit’s contention cargo damage. see cedar petrochemicals, 769 f. supp. 2d at 286 (“the experts have question no. 4 asked: “did flatrolled steel fail to comply with their payment evidence” points of error, 38 tex. l. rev. 361, 362-63 (1960)); see also niche oilfield steel’s property.” in response to question no. 18, the jury again apportioned 50 percent conversion claims; (3) richway owed no duty in tort to custom transit; (4) the evidence property owner rule’s second prong. we conclude that bollman did so. houston [14th dist.] 2006, no pet.). “[f]or this defense to prevail, there must be a could rely on facts and data “perceived by, reviewed by, or made known” to him. tex. r. demonstrate that his testimony is unreliable. as a testifying expert, o’keefe properly that’s what it was and — and — and didn’t know why that the prices was the jury answered “yes” to question no. 2, which asked: “did custom transit operations, llc, appellants 13 custom transit. nolan richardson is custom transit’s president. 300,000 square feet of inside storage and have the largest outside storage available at the we reverse the trial court’s judgment insofar as it awards actual damages for factor that points toward a determination that an expert opinion is unreliable.” whirlpool conduct by richway that would give rise to a duty of care in connection with a negligent no employees in 2006. bills of lading sometimes were issued under richway’s name to with respect to damaged coils, the jury was instructed to consider “the market caused damage to flatrolled’s property, the jury again answered “yes” as to richway and inspections on all kinds of steel, household goods, automobiles. never dealt with error houston.” according to custom transit, these circumstances mean that flatrolled 3 found by clear and convincing evidence that the harm to flatrolled’s steel instruct as to additional, specific elements addressing the defendant’s undertaking to o’keefe testified that out of 2,455 cans containing weather-sensitive coils, taxable costs against richway. we render judgment that flatrolled take nothing as to [14th dist.] 2012, pet. filed). we next address the third and sixth issues, which focus on whether a tort recovery analysis o’keefe testified that a marine surveyor is “hardly ever able” to visually inspect 29 it is undisputed on this record that custom transit accepted and cashed checks asserted by [the plaintiffs] . . . .” id. “in other words, despite the absence of a charge and damaged coils found in response to question nos. 13 and 17. flatrolled voluntarily problems.” o’keefe also testified that a steel coil cannot be put back in its can after it affidavit. how did you get to these numbers,’ and let’s leave it at that.” o’keefe’s affidavit, which was iv. the final judgment in the third issue on appeal, richway contends that flatrolled cannot assert a o’keefe agreed with a statement that the 10 percent multiplier the jury assessed separate punitive damage awards against custom transit. flatrolled elected precisely how many; in the course of testifying, he identified and described photographs the trial court subsequently dismissed r enterprises from the case. a take-nothing judgment 30 * * * [plaintiff] . . .”). we sustain issue three as to richway.13 the degree to which admissibility and sufficiency determinations depend on exclusion of coils rusted during transit by sea rather than while they were in storage. o’keefe tried to iii. the verdict reliance, and increased risk of harm. torrington, 46 s.w.3d at 837-38 & n.6. tort by custom transit.” failed to make proper discovery disclosures. coils. “‘if scientific, technical, or other specialized knowledge will assist the trier of fact coils resulted from gross negligence on the part of custom transit and omitted instructions about the knowledge and risk-of-harm elements of a premises 324a (1965); see also texas pattern jury charge 71.8 (2010).8 in olivo, the supreme court “held that a broad-form negligence question that flatrolled’s coils for an extended period.” flatrolled further contends that the trial court and — and got it, you know, confirmed with her, you know, that the flatrolled’s steel coils; and made separate awards for lost and undelivered the injury-causing conduct to custom transit and 50 percent to richway. flatrolled elected to recover on to exercise reasonable care in performing those services; and (3) either the plaintiff relied marine surveyor’s testimony offered in connection with determining the diminished and 12-19. the missing statutory elements addressing whether richway acted as a damaged coils in response to question no. 3. to the coils, such as conditions on the vessels which shipped the coils to the port of harris county, texas coils in those cans were less likely to be severely damaged. must determine reliability from all of the evidence. merrell dow pharm., inc. v. havner, knowledge of port of houston warehouses; and documentation including summaries flatrolled under the direct discharge agreement. 32 see texas pattern jury charge 2.4, 3.1 (2010). the difference is not material to the resolution of this portion of this definition comports with language approved in rudes v. gottschalk, 324 s.w.2d 201, 207 listed four circumstances for the jury to consider in “determining whether a failure to reasonable and fair-minded jurors to reach the verdict under review. id. at 827. legal prime which we had to sell for less than the prime because of the rust.” important consideration in evaluating the expert opinions and determining whether they see ledesma, 242 s.w.3d at 40 (“ford presented a strong defense, but ultimately the jury analysis to calculate the total number of damaged coils based upon a subset of 105 of performance of the original obligations of the agreement.” in the first issue on appeal, custom transit contends that the trial court the order in which we address the issues on appeal differs from the order in which 1995 and has 35 years of experience in buying and selling steel. bollman testified that he found that flatrolled and custom transit entered into a direct discharge damage award pertaining to lost and undelivered coils. therefore, at a minimum, raise a jury question regarding accord and satisfaction so as to warrant inclusion of an incorrect. this evidence, taken in conjunction with undisputed evidence that custom turning to step (2), o’keefe multiplied the number of unprocessed coils by 10 bollman, a notation that a coil is “stained” means the same thing as a notation that the tendered by flatrolled for amounts less than the totals specified in custom transit’s claims and negligent activity claims, torrington noted that “we have rejected the 2 care,” and “proximate cause” in the conventional manner under texas law, but (2) did not because a negligent undertaking theory is separate and distinct from a negligent explanation.’” pink, 324 s.w.3d at 296-97 (quoting arkoma basin exploration, 249 “[t]he jury charge had no instructions or definitions containing the additional elements, damages for a single, indivisible injury; (6) the award of exemplary damages against predicated on a “yes” answer to question no. 4, the jury did not answer question no. 5 custom transit does not dispute the property owner rule’s applicability to the 139, 152 (tex. app.—houston [14th dist.] 2010, no pet.) (“the dearth of prospective question #1?” in response to question no. 3, which was predicated on a “yes” answer to above), or if contrary evidence renders supporting evidence incompetent (situation (b) discharge services. richway’s corporate representative, krishnakant shukla, testified as bollman were a “representative sample,” and that he would expect an additional 114 to awarding attorney’s fees and court costs to flatrolled in connection with its breach of sufficiency challenge to answer no. 3(b) in a motion for new trial filed under texas 3 5 custom transit, l.p., richway cartage, inc., and custom damaged coils in answer no. 3(b). coil, “especially when there’s hundreds of coils.” he testified, “number one, you can’t disregard that evidence. id. “the traditional scope of review does not disregard contrary (“evaluating whether expert testimony has been conclusively disproved by the opposing accordingly overrule the seventh issue. supreme court also has applied it to valuation of personal property. see redman homes, q. but richway cartage was involved in operations to the extent that figure was based on flatrolled’s processing of only the “best-looking” cans containing flatrolled contends that custom transit breached the direct discharge agreement by another entity in connection with direct discharge services provided by another entity; 14 coils had both work orders and invoices. he stated, “[w]e don’t have an invoice for circumstances giving rise to a duty of care owed by richway in connection with storage not conclusory. establish accord and satisfaction absent a notation on the check stating that it fully o’keefe addressed practical considerations involving inspection of the particular b. evidence pertaining to duty of care custom transit’s breach of contract claim against flatrolled predicated on underpaid not doing it. so, their employees were doing the services. on the part of custom transit and richway proximately caused damage to controlled warehouses under conditions (including the presence of dirt floors) that law imposes no general duty to ‘become [a] good samaritan,’ we have recognized that a expert testimony. the trial court did so in response to custom transit’s motion as-yet unprocessed coils. conflicted with respect to the entity that held leases on the warehouses custom transit under the property owner rule on behalf of an entity other than a natural person. first, owner of the requirement that a witness must be personally familiar with the property and nos. 12 and 18 depends, must be analyzed in terms of a negligent activity claim. amount awarded in answer no. 3(a) for lost and undelivered coils; and (2) $632,595.60, after a bifurcated trial, the jury assessed punitive damages against richway of flatrolled. members of the richardson family served as richway’s officers, and also removed from their cans and processed, o’keefe proceeded in two steps by (1) dividing negligence, exemplary damages, pre-judgment interest, post-judgment interest, and relationship between richway and flatrolled. see torrington, 46 s.w.3d at 838. 9 satisfaction of actual damages for its total injury of $959,316.88, and to only one (tex. 2007) (“even though it did so, [defendant] . . . was not required to object to the immaterial these coils unrolled?” bollman answered, “i probably did or my warehouse with care, including its failure to store the coils in climate-controlled custom transit — knowingly allowed flatrolled’s coils to be warehoused in correct? violated a legal duty owed to flatrolled. torrington co. v. stutzman, 46 s.w.3d 829, 837 law, in some instances resolution of disputed facts may be required to determine whether as discussed above, question nos. 12 and 16 did not submit a negligent as a proper representative sample for purposes of estimating cargo damage. he opined depending on the context of a particular claim, the reliance element may be framed in terms of defendant’s exhibit 1931. o’keefe testified, “i was out there . . . when [bollman] . . . houston [14th dist.] 2002, pet. denied), a post-torrington decision in which this court theory against richway rather than a negligent undertaking theory. see id. cause”11 (tex. 1984)). “the rule is based on the presumption that an owner will be familiar with test for legal sufficiency always must focus on whether the evidence would enable instruction on accord and satisfaction in question no. 4, we need not address custom 25 the trial court’s judgment must be reversed because (1) the jury charge erroneously of the injury-causing negligence to richway and 50 percent to custom transit. in described representative sampling as “standard practice in the industry.” and exemplary damages are permissible in this case. robinson, 923 s.w.2d 549, 557 (tex. 1995). those factors are (1) the extent to which a. affiliate companies are doing the services. richway cartage was regarding the number of coils that were damaged; the use of a representative sample oral agreement existed between flatrolled and custom transit to accept flatrolled’s see also barzoukas v. found. design, ltd., 363 s.w.3d 829, 840 (tex. app.—houston acknowledged that photographs were not taken of every damaged coil because “interwoven” with question no. 4. according to custom transit, this interweaving custom transit’s fifth basis for challenging o’keefe’s expert testimony focuses see avco corp., textron lycoming reciprocating engine div. of avco corp. v. appeal from a judgment in favor of flatrolled steel, inc. following a jury trial. 12 q. but custom transit does use those warehouses, right? flatrolled obtains some of the steel coils it buys from trading companies; these attorney’s fees were tried to the court. the trial court subsequently signed an order owed as a “warehouse.” see tex. bus. & com. code ann. § 7.204(a) (vernon 2011) (“a the amount awarded in answer no. 3(b) for damaged coils. 11 explained his rationale for using a 10 percent multiplier on grounds that the eight percent percent to compute a total of additional damaged coils ranging from approximately 114 ltd. p’ship, 278 s.w.3d 901, 909-10 (tex. app.—houston [14th dist.] 2009, no pet.). in the sixth issue, richway contends that flatrolled cannot recover exemplary findings against custom transit as custom transit’s general partner. for ease of reference, these two richway; and another entity that provided direct discharge services; held leases on warehouses used by flatrolled further emphasizes testimony concerning richway’s role as part of a negligence to richway and 50 percent to custom transit with respect to lost coils. the of land may be held liable only if certain conditions are met.” id.; see also del lago exclusive, and that “some subjects do not lend themselves to scientific testing and whether richway objected on “no duty” grounds during the charge conference. see the trial court revisited this ruling during trial after determining that custom value of other property.” reid road mun. util. dist. no. 2 v. speedy stop food stores, testimony focus on testing, publications, and error rate. these grounds highlight the exploration co., 249 s.w.3d at 389 & n.32). o’keefe explained the practical reasons that amount. address evidence that contradicts his conclusions, ‘[i]t is not required . . . that an expert for (1) lost and undelivered coils; and (2) damaged coils. answered “yes” as to richway and custom transit, and “no” as to flatrolled, in response answered “yes” when asked whether custom transit failed to comply with its obligations $1.25 million in connection with the gross negligence finding pertaining to lost coils, and are substantially more than merely the expert’s conclusory, subjective opinion.” two or more theories of recovery that yield different damage amounts, that party may elect the measure of s.w.3d 290, 296-97 (tex. app.—beaumont 2010, pet. dism’d) (quoting arkoma basin encompasses a nonfeasance theory based on the owner’s failure to take measures to make in the relevant scientific or expert community, then an explanation of why it has not is an kerr-mcgee corp. v. helton, 133 s.w.3d 245, 252 (tex. 2004) (“if [the expert’s] . . . questions nos. 12 and 16 are immaterial as to richway. see torrington, 46 s.w.3d at a. no. they took our check and cashed our check and went on their satisfaction of pre-judgment and post-judgment interest on actual damages, from any merry way. they were happy. percentage that the coils are damaged . . . and then you apply that percentage to the fluctuations that occurred while these coils were stored in non-climate-controlled damaged by sandblasting and immersion in salt water based on price differential between were officers of custom transit or bore responsibility for custom transit’s operations. in 2006; he stated, “i have knowledge of what our cost is and . . . what the market will a. o’keefe’s testimony 6 dissenting) (“although a species of negligence, premises liability cases are predicated on jr., inc. v. olivo, 952 s.w.2d 523, 529 (tex. 1997)). the supreme court applied similar with an agreement is excused if a different performance was accepted as full satisfaction remitted its punitive damage award against richway to $959,316.99. the texas supreme court has recognized that the robinson factors are not b. analysis of the challenged damage testimony between december 2006 at the date of trial. o’keefe looked at photographs of three custom transit’s attorney asked bollman, “[d]id you physically see all 105 of subsequently presented a no-evidence challenge to answer no. 3(b) in a post-trial that identified each damaged coil by coil number, vessel name, work order or invoice 2.1 (2010) contemporaneous conduct by which flatrolled claims to have been injured. cf. id. at 910 a. they – they helped out. yes. you? no basis for recognizing a duty flowing from richway to flatrolled based on negligent and for damaged coils; value.” the trial court overruled custom transit’s trial objection that bollman should is legally and factually insufficient to support the jury’s awards for damaged coils; (5) the every work order and we don’t have a work order for every invoice.” according to marine surveyor, o’keefe inspects cargo on ships and in port for damage. o’keefe “failed to bridge the analytical gap between o’keefe’s opinions and the data on which he cans. “it’s the only way that you can economically [and] feasibly establish the extent of requiring painting. flatrolled also contends that custom transit lost or failed to deliver as an expert marine surveyor. custom transit contends that o’keefe’s testimony is o’keefe could testify about “industry standards as to storage of the coils;” the fact that use due care.”). flatrolled steel’s property resulted from gross negligence?” burden to prove the testimony is relevant and reliable.”). crooks v. moses, 138 s.w.3d 629, 637 (tex. app.—dallas 2004, no pet.) (“in other q. and that would include richway cartage’s trucks, right? rejected it.”). bollman testified at trial that he has owned flatrolled steel since its inception in its fair market value, but the property owner rule creates a presumption a to both.” id.; error rate, and literature does not invalidate the testimony at issue regarding the source of the jury was instructed that “‘[o]rdinary care’ means that degree of care that would be used by while we agree that acceptance of tendered checks without more does not a different entity called “r enterprises” or “r warehousing.” see id.; see also torrington, 46 s.w.3d at 838. this conclusion applies regardless of imperfect fit between expert testimony concerning certain types of technical issues and should be analyzed as submitting claims pursuant to a statutory duty of care richway proximately caused the loss of flatrolled’s steel coils; found that negligence discharge of an existing obligation by means of a lesser payment tendered and accepted.” flatrolled contends that question nos. 12 and 16 nonetheless should be analyzed a. there was a team effort. indicated that the coils were in good condition when they arrived at the port of houston. answer no. 3(b). coils, and visual inspection. bollman’s familiarity with the condition and value of the notwithstanding testimony that “he had never inspected or viewed the shrimp boat in created by the activity.”); see also del lago partners, inc., 307 s.w.3d at 776 richway. we affirm the trial court’s judgment in all other respects. force by “set[ting] the prices and . . . com[ing] out with a price book for the salespeople,” richway held these leases and allowed custom transit to use the warehouses without of care in connection with a negligent activity claim; instead, they reflect an effort to (“negligent activity encompasses a malfeasance theory based on affirmative, evid. 703; see also taubensee steel & wire co. v. macsteel int’l usa corp., no. representations of [the expert’s] . . . opinion . . . would be no evidence for the same asked to consider.” see entex, 94 s.w.3d at 5-6. transit gave fair notice of its contentions to flatrolled and to the trial court. see reliance by the party to whom services were rendered or reliance by the party to be protected. see texas of contract claim against custom transit consisting of (1) $326,721.28, the unchallenged that he was “more than comfortable” with using the 1,317-coil sample as a representative richway satisfied a warehouseman’s statutory duty to “exercise care with regard to the maritime overseas corp. v. ellis, 971 s.w.2d 402, 409 (tex. 1998). custom transit instruction in question no. 4. inc. v. escoto, 288 s.w.3d 401, 404 (tex. 2009); transcont. ins. co. v. briggs equip. a. we called up robbie. we — we asked her what was going on, and 290,058” with respect to the 105 damaged coils that were opened and processed. seller who desires to sell, but is under no necessity of selling.” the term “property” was the analysis of richway’s activity begins with the undisputed fact that richway the steel coils inside the cans. in turn, the condensation causes rust to form on the surface indulging every reasonable inference that would support it, bollman’s testimony enabled question”). price shows that it’s less than prime.” counsel asked bollman: “and what you are contentions that testimony is “conclusory” and “speculative” often are asserted in counsel suggested to the jury that the diminished market value for all damaged coils should be 4 warehouses resulted in condensation forming externally on the storage cans and on the was not otherwise involved in direct discharge operations; and had no employees. there ‘conclusion without any explanation.’” pink v. goodyear tire & rubber co., 324 sum is upon the condition that acceptance will satisfy the underlying obligation.” lopez, opinion that extent of rust on steel coils exceeded purchaser’s specifications); great am. a. correct. question no. 4 on grounds that the evidence did not warrant submission of such an changed on the invoice, and so we short-paid the invoice by the correct do that which a person of ordinary prudence would have done under the same or similar circumstances or necessarily referable to the negligent activity question submitted to the jury.”). justice how you would handle it? payment. other testimony indicated that the leases were held by a different entity called least eight vessels that delivered steel coils into the port of houston in 2006. as a direct to understand the evidence or to determine a fact in issue, a witness qualified as an expert a. bollman’s testimony wide.” id. insofar as custom transit assails the lack of inspections by o’keefe of flatrolled relied on testimony from mike bollman and tom o’keefe to support its custom transit’s first ground for challenging o’keefe’s testimony does not and expert chemical engineer who opined that discoloration of liquid phenol cargo i. the parties flatrolled filed suit in december 2006. in its live petition, flatrolled asserted custom transit is a limited partnership. its general partner is custom operations, injured by or as a contemporaneous result of the activity itself rather than by a condition 7 the coils were weathered, aged, and covered with dirt. warehouses before custom transit delivered them to flatrolled. the evidence at trial testified at trial as an expert marine surveyor. o’keefe opined that the coils identified by of the steel at a less-than-prime price, or to specific work orders. bollman was asked, analogizing to case law addressing the distinction between premises liability in light of this disposition, flatrolled is entitled to recover damages on its breach findings. we affirm the trial court’s judgment as to contract damages and attorney’s fees negligence.” o p i n i o n a. to try and provide a seamless solution. yeah. amount of contract damages awarded in response to question no. 3. having rejected custom transit and richway assert that the trial court’s judgment violates the one on a coil without running it out on a line. you can’t run them all out on a line because 4. “ . . . [i]ndividuals who ran richway’s operations — who also were officers of 840; olivo, 952 s.w.2d at 530; see also nat’l plan adm’rs, inc., 235 s.w.3d at 704 high end to approximately 114 on the low end. notwithstanding the trial court’s admonition that both standards of review o’keefe was asked, “do you use error rates in your line of work?” he answered, arguments pertaining to custom transit; flatrolled’s damages for custom transit’s undertaking claim. furthermore, these contentions do not support the existence of a duty motion to disregard filed under texas rule of civil procedure 301, and a factual judgment as to actual damages for negligence and exemplary damages awarded against with its contract claim against custom transit. waive its sufficiency challenge to o’keefe’s testimony by proffering defendant’s exhibit factors identified in daubert. rather, this is one of those situations in which the relevant christi 1996, writ denied), cited with approval in speedy stop, 337 s.w.3d at 853. flatrolled elected to recover on its contract claim against custom transit. the final and (6) the nonjudicial uses that have been made of the theory or technique. mendez, 204 number, weight, and tag number. plaintiff’s exhibit 63 was admitted into evidence. that o’keefe should not be permitted to testify regarding industry standards; custom contending that texas rule of civil procedure 193.6 mandated exclusion of any expert and convincing evidence that custom transit acted with malice; and in light of this testimony, bollman’s computation was not unduly speculative. opinion is found to be unreliable, and thus no evidence, [exhibits] . . . which are merely negligent activity encompasses a malfeasance theory based on affirmative, expert testimony from a naval architect, marine surveyor and marine safety expert contends is required to support o’keefe’s conclusions and establish an acceptable error establish the cause and the full extent of damage so that you can determine what their question no. 2, the jury awarded damages to flatrolled in connection with custom coils. custom transit arguably overreaches here; there is room for discussion regarding value of damaged coils. we overrule the fourth issue on appeal.5 against graham. the simple negligence question submitted to the jury relates only to the submissions in question nos. 4, and 5 pertaining to custom transit’s breach of contract negligence submissions in which “negligence,”9 engineering and the shipping industry . . . and by straightforward logical analysis.”) equipment such as trucks and forklifts used by custom transit to perform direct coil is “rusty.” resulted from custom transit’s failure to comply” with the direct discharge agreement. are defined in the conventional manner. as in torrington, these broad-form additionally, it is clear that purely conclusory expert opinion testimony cannot bollman drew a distinction between “prime steel” and “less-than-prime steel.” flatrolled steel, inc., appellee instruction to the jury. custom transit lodged a “no evidence” objection to this to sustain its negligence claim, flatrolled was required to establish that richway 5. “[i]t was eminently foreseeable that richway’s failure to perform that duty torrington, 46 s.w.3d at 840 (“but in olivo, the defendant owed no duty toward the plaintiff unless which has no employees and conducts no business beyond serving as general partner for the daubert/robinson hearing, the trial court allowed o’keefe to testify as an expert a. yeah, the clerical work and accounting, i can speak of. i don’t know upon itself to warehouse flatrolled’s coils” pertains to negligent undertaking. see richway, and render judgment that flatrolled take nothing from richway. regarding causation, epidemiology, and the like. see, e.g., robinson, 923 s.w.2d at 557. the evidence at trial would enable reasonable and fair-minded people to differ in their subsequently examined coils from the hui an after they had been delivered to flatrolled, consistent with the approach used for cases in the premises liability realm, value of the property at the time it was agreed to be delivered less the market value of the see also preston reserve, l.l.c. v. compass bank, no. 14-11-00045-cv, ___ s.w.3d 37 considerations that preclude a prospective study subjecting mothers and babies to 25 cents inside the port, 35 cents outside the port. and she agreed that this exhibit is an affidavit signed by o’keefe in which he opined about the use of a warehouses custom transit used to store flatrolled’s coils. some of the trial testimony be some basis for the opinion offered to show its reliability. mendez, 204 s.w.3d at 801 based on a negligent activity theory. impact on pricing when flatrolled sold the steel. bollman testified that “i buy the steel . . displaying the least amount of exterior damage; it opened 1,317 of the cans and processed flatrolled identified 2,455 “weather-sensitive coils” that had been retrieved by transit’s breach of the direct discharge agreement. the jury awarded separate amounts the jury was instructed that “[p]roximate cause’ means that cause which, in a natural and activity; this is especially so given that the trial court granted a directed verdict as to continuous sequence, unbroken by any new and independent cause, produces an event, and without which “coils were damaged;” and what he was told by flatrolled regarding the number of coils by the prime value of 50 cents per pound; from this amount, he subtracted the less-than- reliability factors that arose in the context of cases involving expert scientific testimony the harm to flatrolled resulted from gross negligence. june 14, 2012. party is not the same as considering whether the proponent of the testimony satisfied its contain damaged coils. these explanations are sufficient to confirm that the testimony is representative sample technique to determine the extent of flatrolled’s cargo damage in answered “no” to a question asking whether flatrolled failed to comply 7. “. . . flatrolled relied on richway’s undertaking because it expected the coils a. submission of contract claims in the jury charge iii. attorney’s fees on flatrolled’s contract claim against custom transit damage upon which the party wishes to recover.”). because judgment against custom transit is q. so are you saying that the invoices that custom transit would send missing . . . premises defect elements about knowledge and risk of harm are not would be “typical and customary and reasonable in the industry.” breach of contract; and attorney’s fees in connection with the contract claim against 17 conduct of people.”). awarded punitive damages against custom transit and richway. damage, which were based on “the pictures and documents presented to them,” were not computation of losses from the diminished value of damaged coils. bollman owns 59 (tex. app.—houston [14th dist.] 2010, no pet.) (“when a party receives favorable jury findings on c. exemplary damages tendered check, without more, is not enough to constitute accord and satisfaction . . . . of the property owner rule, with certain restrictions on whose testimony can be “richway took upon itself to warehouse flatrolled’s coils, jointly and as a you and say, “hey, . . . [y]ou’re paying the wrong rate”? bollman testified that he personally examined damaged coils, but could not say credit, and shipping at flatrolled to “make sure everything gets done the way it’s the jury answered “no” to question no. 4. because question no. 5 was rate, nor does it explain why a 53 percent sample size is invalid. we do not believe that testimony is conclusory “if it is essentially a ‘conclusion without any texas rule of civil procedure 301 that the jury’s answers to question nos. 12 and 16 were immaterial. 204 s.w.3d at 800. if the expert’s evidence is not reliable, it is not evidence. id. courts inc. v. ivy, 920 s.w.2d 664, 668-69 (tex. 1996); see also taiwan shrimp farm village surveyor’s opinion regarding shrimp boat’s market value was admissible under rule 703 the same breath and argued together. these are distinct concepts, and we will address the record here reveals no evidence pertaining to any activity or contemporaneous q. and — and then what would you do with that invoice in terms of value due to damage, bollman first multiplied the total weight of the 105 damaged coils additionally, richway asserted in its post-trial motion to disregard certain jury findings under undertaking theory. cannot always be used in assessing an expert’s reliability, but concluded there still must awarded actual damages; this case. in light of this affidavit’s admission into evidence notwithstanding the ruling at potential injury while measuring excessive traction.”). judgment interest. the final judgment also ordered that flatrolled recover actual damaged them during the period in which they were kept in a non-climate controlled panel consists of justices brown, boyce, and mccally. question no. 2 that custom transit failed to comply with its contractual obligations to insufficient evidence to support an accord and satisfaction defense in connection with attributed 50 percent of the injury-causing negligence to custom transit, transit’s remaining arguments in connection with the first issue on appeal. flatrolled. conflicting evidence was proffered at trial concerning which entity held whether a duty arose to take protective action based on special circumstances or the in connection with the damaged and missing coils. custom transit filed a counterclaim omissions in richway’s conduct. see keetch v. kroger co., 845 s.w.2d 262, 264 (tex. another 37 coils. (citation omitted). “the ‘analytical gap’ between their conclusions and the data is not “r enterprises” or “r warehousing.” instruction. considering the evidence in the light most favorable to the verdict and flatrolled; photographs; inspection of coils; depositions taken during the case; his 6. “. . . richway’s decision to store the coils assumed a duty of care also owed in we had talked to her about the fact that it — that our prices had always been hatch survey on the vessel hui an and concluded that the cargo of the hui an was in golden eagle archery, inc. v. jackson, 116 s.w.3d 757, 761 (tex. 2003). we can set the coils they contained. according to bollman, 105 of the 1,317 processed coils had trial court cause no. 2006-80851 according to bollman, the main difference between prime and less-than-prime steel is property owner rule, under which “a property owner is qualified to testify to the value transit as one of richway’s locations. 8 defined as “any one of several of the steel coils at issue in this lawsuit.” on whether bollman demonstrated sufficient personal familiarity with the number of would be protected in a climate-controlled environment if kept for extended the jury answered a separate cluster of questions pertaining to damaged coils. in support a judgment. “an expert opinion is considered conclusory if it is essentially a about operations because richway cartage was not involved in operations. decanning a coil . . . you’re not going to get a real good idea of the effect any rust has had her own property and know its value.” speedy stop, 337 s.w.3d at 853. the texas on appeal from the 164th district court the jury answered “yes” to question no. 1, which asked: “did flatrolled steel improper. of one of the parties’ existing obligations.” id. which custom transit agreed to provide direct discharge services in connection with at 36 bollman testified about the sensitivity of steel coils to significant temperature exercise care with regard to the goods that a reasonably careful person would exercise the viability of negligence and conversion claims submitted against custom transit in question nos. 8-10 8 including breach of contract, negligence, gross negligence, and conversion of houston. the coils are shipped in large sealed “cans” to protect them during transit. a jury presented with a negligent undertaking claim should be instructed that the 34 /s/ william j. boyce warehouse before delivery to flatrolled. viable negligence claim against it because the evidence is legally insufficient to establish duty to do so.” custom transit, and “no” as to flatrolled. in response to question no. 17, the jury cargo at issue here. o’keefe testified that it is impractical to visually inspect every steel included an accord and satisfaction instruction in connection with custom transit’s other richway-related entities were involved, correct? flatrolled’s contention fails because there is a difference between omitting certain coils that were “the least likely to be severely damaged.” he testified, “[s]o that means custom transit contends this evidence is insufficient to establish accord and satisfaction, 9 857, 863 (tex. 2000) (citing jenkins v. henry c. beck co., 449 s.w.2d 454, 455 (tex. jury also answered “yes” as to richway and custom transit in response to question no. that its tort claim against richway rests on a negligent undertaking theory. according to flatrolled is entitled to recover this amount for lost and undelivered coils in connection with respect to lost and undelivered coils, the jury found in answer no. 3(a) that actual damages from richway, which equates to 50 percent of the total damages for lost we begin with the first, fourth, and seventh issues, which focus on contract-related appeal. question.”); olivo, 952 s.w.2d at 530 (judgment rendered on appeal when broad-form negligence $959,316.88 in exemplary damages from richway along with post-judgment interest on trust, 321 s.w.3d 685, 695 (tex. app.—houston [14th dist.] 2010, no pet.) in light of our disposition of the third issue, we need not address the second issue elements of a single theory — which is addressed by rule 279’s deemed finding transit, richway, or flatrolled proximately caused the loss of flatrolled’s property. in custom transit from eight ships. flatrolled opened the best-looking storage cans pertaining to custom transit’s damages for flatrolled’s asserted breach of the direct in reviewing factual sufficiency, we must consider and weigh all the evidence. coils, and for damaged coils; activity — negligent or otherwise — when” injury occurred); crooks, 138 s.w.3d at 639 flatrolled’s first contention that richway “voluntarily assumed the duty” by “[taking] flatrolled emphasizes testimony indicating that richway held leases on the lack of contemporaneous activity”). overlap of officers among various entities provides 10 a. yeah, that’s correct. here, as in cedar petrochemicals, the asserted absence of hypothesis testing, an b. challenges to o’keefe’s testimony 22 origin, but was unable to do so. o’keefe opined that the absence of notification to property at the time it was delivered.” the jury found this amount to be $632,595.60 in the figure obtained in step (1) was approximately eight percent. o’keefe opined were damaged, and for the computation of a market price differential attributable to the ‘team effort’ with custom transit, notwithstanding that it had no contractual “[t]he property owner rule is limited to those witnesses who are officers of the entity in flatrolled is a houston-based company that buys and sells carbon flatrolled steel, sufficiency review in the proper light must credit favorable evidence if reasonable jurors (“because [defendant] . . . did not owe [plaintiff] . . . a . . . duty, the question should not sufficient to support a finding of liability based on negligent undertaking.” id. at 5 n.3. found that negligence on the part of custom transit and richway 1 for conversion; negligence pertaining to lost coils; and negligence pertaining to damaged coils. the jury lesser payments as full satisfaction of the amounts owed to custom transit. flatrolled supreme court has applied this principle to valuation of real property, see id.; the cause such event would not have occurred. in order to be a proximate cause, the act or omission petrochemicals, inc. v. dongbu hannong chemical co., 769 f. supp. 2d 269, 286-87 purportedly relied for his opinions.” see lopez, 22 s.w.3d at 863. or technique has been generally accepted as valid by the relevant scientific community; coils from the port of houston?” custom transit does not challenge this finding on we must consider evidence in the light most favorable to the verdict and indulge the jury was instructed that “‘[n]egligence’ means failure to use ordinary care that is, failing to v. issues on appeal owed to invitees, licensees, or trespassers. see generally mayer v. willowbrook plaza n.9 (s.d.n.y. dec. 20, 2002) (expert marine surveyors’ opinions regarding cargo reasonable and fair-minded jurors to conclude that (1) custom transit agreed via hardy transit had proffered and obtained admission of defendant’s exhibit 1931 into evidence. a. right. establish accord and satisfaction, we conclude that “more” exists on this record even in transit, richway cartage, and r enterprises, right? an agreement to accept lesser payment; and (2) said she promised only that she would custom transit’s speculation challenge to bollman’s testimony focuses on the flatrolled’s recovery against custom transit and richway on its negligence and conclusory and speculative because “bollman himself was not personally familiar with property; negligent activity cases arise from contemporaneous actions or omissions in the 1. bollman expert testimony. custom transit’s and richway’s appellate challenges focus in richway, and r the parties’ dispute focuses primarily on 2,455 “weather-sensitive” steel coils. custom transit. 12 proffered or alternative explanations for a particular event. “while an expert should the upshot is that the existence of a duty, upon which submission of question 27 for negligent undertaking elements that were not submitted in question nos. 12 and 16. 1931 for admission into evidence at trial. custom transit objected to o’keefe’s previously testified as an expert in federal court concerning cargo damage. the extent of the damage to the 105 coils.”


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