Full opinion text
OPINION Opinion By Justice FRANCIS. Talmadge Waldrip suffered catastrophic injuries when a rented U-Haul truck he was exiting began to roll backward, knocked him to the ground, and rolled over him. Experts agreed the truck had an inoperable parking brake and damaged transmission, although they disagreed about the extent and cause. After hearing three weeks of testimony, a jury found U-Haul International, Inc. (UHI) and U-Haul Co. of Texas, Inc. d/b/a U-Haul Co. of Dallas (UHT) negligent and grossly negligent and East Texas Fork Enterprises, Inc. d/b/a Jot ’Em Down (JED) negligent and awarded more than $84 million in compensatory and exemplary damages. The trial court reduced the exemplary damage award under chapter 41 of the Texas Civil Practice and Remedies Code and rendered a $45 million judgment. The U-Haul defendants appealed separately from JED. All raise issues related to the legal and factual sufficiency of the evidence to support the liability and damage findings, admission and exclusion of certain evidence, and charge error. After reviewing the record, we conclude there was not clear and convincing evidence to support a gross negligence finding against UHI and reverse the $11.1 million punitive damage award against UHI. We affirm the trial court’s judgment in all other respects. UHI is a Phoenix, Arizona-based equipment rental company that began operating in 1945. UHI has forty-nine subsidiaries operating throughout the United States and Canada. These subsidiaries, one of which is UHT, own and operate rental centers and oversee the operations of independent dealers renting U-Haul trucks to consumers. At the time of trial, there were more than 15,450 rental locations renting a fleet of more than 100,000 trucks. Of these, some 1,450 locations were company-owned centers staffed by U-Haul personnel while 14,000 were independent dealers authorized to rent trucks by contract. JED is an antique store that operates as an authorized independent dealer of U-Haul equipment. On September 20, 2006, Waldrip’s daughter, Annabeth Boyd, rented a U-Haul jumbo hauler (JH 6097) from JED to move some of her belongings to a warehouse in Forney, Texas. The truck, a 1988 International jumbo hauler with a five-speed standard transmission, had logged more than 233,000 miles. Because Annabeth did not know how to operate a standard transmission vehicle, she asked her father to drive. After Annabeth loaded the truck with her belongings, Waldrip drove it the seven miles to Forney without problem. He pulled up next to the warehouse, which was on a slope, turned off the ignition, put the truck into first gear, and set the parking brake. As he began stepping out, the truck began to roll and the open door hit him in the back. Waldrip tried to get back into the truck to stop the rolling, but he was knocked to the ground. The 26-foot, 12,000-pound truck rolled over Waldrip, crushing his mid-section, and dragged him down the slope about sixty feet. When Annabeth arrived at the scene about five minutes later, she found her father lying beside the truck with his head pointed to the rear. The truck was parallel to the building. Waldrip was taken from the scene by helicopter and was hospitalized' for eight months with massive, life-threatening injuries. After the scene was cleared, Matthew Nichols moved the U-Haul truck next to the warehouse. Nichols had difficulty putting the truck in gear and said the truck rolled with the parking brake engaged. Two days later, a mechanic inspected the truck for the Waldrip family and found the parking brake was inoperable. Later inspections revealed damage to the transmission. Waldrip, his wife, and two daughters sued appellants for negligence and gross negligence, alleging the circumstances leading up to the accident were the result of a systemic pattern of “mismanagement and poor inspection, conflicting inspection policies and/or practices, negligent fleet replacement patterns, maintenance, repair practices and woeful incompetence.” At trial, the evidence focused on U-Haul’s policies with respect to the inspection, maintenance, and repair of its vehicles and how those policies were applied to the truck in this case. Witnesses testified UHI developed and controlled the policies for inspection, repair, and maintenance of the vehicles while UHT was responsible for actually implementing the UHI policy for trucks in Texas, including the JH 6097. The system relied on mileage- and time-based inspections as well as customer feedback. First, UHI required a Preventive Maintenance inspection every 5,000 miles (PM-5). Among other items, a PM-5 inspector was supposed to functionally and visually inspect the parking brake system, check the transmission fluid level, and check for any signs of leakage. If the truck passed, a second inspector would drive the truck and, among other things, check the parking brake. U-Haul witnesses testified that if a road test was not done, the inspection was not considered complete. Because some trucks were driven less miles than others and consequently would be subject to fewer PM inspections, UHI also required that all trucks periodically undergo a less-involved safety certification inspection. UHI had designated JH 6097 as a rotation, or in-town, truck. Rotation trucks were generally older and had higher mileage. The frequency of safety certification inspections on rotation trucks was in dispute. Some U-Haul documents required rotation trucks be safety-certified every thirty days. Other company documents, however, suggested the thirty-day requirement applied only to rotation trucks at company-owned centers while rotation trucks assigned to independent dealers were to be safety-certified every sixty to ninety days. Area field managers, employed by U-Haul companies, performed the safety certifications on equipment at independent dealers. The inspection included the same functional test of the parking brake required in the PM-5 inspection. The inspection also required the field manager to check the transmission fluid in automatic transmission trucks, but no such inspection was required on standard transmission vehicles. In addition to the safety certification inspection, U-Haul required a federal Department of Transportation (DOT) inspection annually. U-Haul witnesses testified that a PM-5 inspection covered all items required by the DOT inspection. Finally, in between the mileage- and time-based inspections, U-Haul relied on customer feedback by way of a receipt and dispatch tag (R & D). When a customer returned a truck either to a center or independent dealer, the U-Haul agent was supposed to ask whether the customer had any braking, engine, or electrical problems and then record that information on the tag. The tag also required the agent to note whether a PM inspection or safety certification inspection was needed. Finally, before every rental, the agent was supposed to check (1) the lights, (2) for leaks, (3) fluid levels, and (4) tire pressure and tread, and also was to (5) clean the windshield and cab box and record so on the tag. No check of the parking brake was required. The agent was to sign the tag, certifying the truck was customer ready. If any safety issues arose during the inspections or the R & D process that could not be repaired on-site, U-Haul policy required that the truck be grounded and the information entered into the computer system in the Downed Equipment Tracker until repairs were completed. UHI maintained the computer database. Evidence related to the JH 6097 showed that in the previous eleven years, it had been serviced in shops across the United States and at two locations in Canada. The repair history was extensive, leading one expert to question why the truck was still in service. The truck was on its third transmission, and the rear transmission seal had been replaced three times since 2001. Additionally, the entire parking brake system had been replaced, but had continued to have problems. Just one year earlier, in September 2005, the truck had been grounded and placed in the company’s computer system after a report was made that the parking brake light switch stayed on and the parking brake did not work. Although evidence showed the switch was repaired, no evidence indicated that any work, other than an “adjust and lube,” was done on the parking brake itself. The following month, the truck underwent its last PM-5 inspection in Florida. During the first phase of the PM-5, the truck passed both the parking brake and transmission reviews. Questions arose about the second phase or the road test, however. U-Haul records related to that test did not correspond to the truck’s mileage, raising questions as to whether the correct truck was road-tested, although U-Haul explained that the wrong mileage was entered. Ignacio Reveles was the first customer to rent and drive the truck after the October 2005 PM-5 inspection. Reveles, who had experience driving large trucks, drove the truck from Florida to Texas and testified he had problems from the beginning starting the truck and shifting the gears. On the first night of the rental, he parked the truck outside his home in Florida, put it in gear, set the parking brake, and locked it. When he went outside the next day, Reveles said the truck had rolled about four feet and was stopped by a concrete parking block. Because of these problems, Reveles said that during the drive from Florida to Texas, he always left the truck running and bought wood blocks that he placed at the front and back tires to prevent it from moving. Reveles said he reported these problems to the Florida U-Haul agent, who told him to call the 1-800 number. When he returned the truck at the Dallas U-Haul center on Ferguson Road, he again reported the problems. Reveles said he told the U-Haul worker the parking brake did not work, he had a problem shifting gears, and the truck leaked and made a “noise.” When he was leaving the center, he said he saw the truck rolling backward across the parking lot, even though he had set the parking brake, put it in gear, and turned off the engine. Rev-eles said he watched as a U-Haul worker chased the truck down and was able to stop it. The R & D tag, however, shows the U-Haul worker checked “okay” to questions asked of Reveles about the truck. The truck remained at Dallas-area locations for the next several months and was safety-certified three times — in November 2005 and January and March 2006, the latter two times by Jason Crews, an area field manager. Crews was hired by UHT executive Lynn Buck, who testified she knew Crews had no mechanical experience when she hired him. Buck explained that mechanical experience was not a qualifieation she looked for because the person would be doing only “minor maintenance checks” and U-Haul provided the resources “for us to learn the rest if need be.” Crews’s area included JED, where UHT transferred the truck on June 26, 2006. During the first week of July, Crews safety-certified the truck during a visit to the dealership. During his visits to the independent dealers, Crews said he worked on the equipment, serviced the dealer and the lot, and did “everything that pertained to the training and so forth of that dealership.” In the months before the accident, Crews said he oversaw twenty-six to thirty-four dealerships with 'up to twenty trucks and up to twenty trailers at each dealership. Crews acknowledged he had no prior experience in maintaining, inspecting, or repairing 12,000-pound trucks before U-Haul hired him, but said he underwent two or three weeks of training on the “entire spectrum” of field manager duties, which included spending one day in the shop. Although he said he had no independent recollection of the JH 6097, he said he would not have applied a new safety certification sticker on the vehicle if the parking brake had not passed the functional test. He did not check the truck’s transmission fluid, and even testified at trial that such a check would have been “impossible” because the “[t]here’s not a way to check the fluid on it.” Crews explained the transmission did not have “transmission fluid in it” because it was a “sealed unit.” After looking at a similar transmission in the courtroom, however, Crews acknowledged that the fluid could be checked, but only if he crawled underneath the vehicle to do so. Additionally, Crews testified that for the truck to pass inspection, it needed to have up-to-date PM and DOT stickers. If a DOT sticker was not up-to-date, Crews said he was trained to see when the last PM was performed. As long as the PM inspection had occurred within the past year, he considered the vehicle in DOT compliance. As for safety certifications, Crews said he was trained to perform them every ninety days at independent dealers, although he acknowledged that the dealer manual required safety certifications every thirty days for rotation trucks. Although his practice was to complete a safety circle certification list and input the information into the computer for each safety certification he performed, U-Haul’s records did not contain either the certification list or the Dealer Service Report for the truck’s July 2006 inspection nor was there a computer record of it. On July 8, Derrick Bradley was the first customer to rent the truck after Crews had safety-certified it. Bradley testified he had some difficulty getting the truck from second to third gear while driving it on the highway. JED was closed when he returned the truck, so he parked the truck in front of the entrance gate, set the parking brake, and put the truck either in neutral or in gear. Before he stepped out of the truck, he said it rolled about “a good foot” and rested on the gate. The next day, he said he called JED and told the worker the truck rolled into the gate but did not report that the parking brake did not work. The JED worker told him not to worry about it. Over the next two-and-a-half months, three other customers who rented the truck from JED had problems with the parking brake and/or the transmission. On August 17, Clay Vestal rented the truck from JED to move to a new home. Vestal said “just getting it in gear was kind of iffy.” Once he got on the service road and was going 45 to 50 mph, the truck “started shaking pretty good.” Vestal said he started using the service brake, but the pedal was “spongy.” So, he said he slowed down and stayed on the service road instead of getting on the highway. Once he arrived at his new home, Vestal said he pulled the truck nose-first at a slant into his driveway, which was on a “pretty steep” incline. He put the truck into second gear, set the parking brake, and turned off the engine. After he got out of the truck, it rolled down the driveway and across the alley. The truck stopped after its tires left the concrete alleyway onto dirt and hit a big tree limb. Vestal said he was “very surprised.” Vestal then drove to his old house and loaded the truck. When he returned to his new home, he backed the truck in to unload it. Vestal said he made sure the truck was in gear and set the parking brake, pulling on the lever “really hard.” As he was stepping out of the truck, it began to roll again, and Vestal said he sat down and pressed the service brake. Consequently, on subsequent trips, Vestal said he ended up parking in the front of the house. When he returned the truck, he said it took at least thirty minutes for the worker to fill out the paperwork and he was “ready to get out of there” because his family was waiting on him. Vestal said he did not report the parking brake problem because he “figured they knew about it” because it was “an old, beat up truck.” Steve Marco, who had experience driving large, standard transmission trucks, rented the truck on September 1. Marco nicknamed the truck the “Titanic” said it “had been neglected in maintenance.” Marco said the steering was “sloppy,” the mirror kept “turning in,” and when he shifted from one gear to the other, it “didn’t feel like the transmission was always going fully into gear” and was going to “pop out.” Marco said there was no tension to the parking brake lever, which indicated to him that the brake was not working properly, so he took “extra precautions” to make sure it did not roll. When he parked the truck, Marco said he turned the wheels, so that if the truck rolled, it would hit the curb. Also, he said that before he shut off the engine, he put it into first gear and slowly let out the clutch to feel “full resistance.” When he returned the truck to JED, he reported the problems to the agent, although the R & D tag did not reflect his concerns. Jonathan Simington, Waldrip’s grandson, also had experience driving manual transmission trucks like the JH 6097. On September 9, he helped his grandfather move antiques to his new store in Forney. They were using two trucks, one of which was the JH 6097. Simington said after loading the truck, he drove it to Forney and backed it onto the ramp. After he put the truck into first gear, set the parking brake, and turned off the ignition, the truck rolled down the building ramp. Sim-ington said he was able to stop the truck before it hit anything. After that, Siming-ton said he backed the truck all the way into the building, but had one of the workers put a block on the rear wheel to ensure it would not roll. Simington drove the truck eight times between Sunnyvale and Forney that day and, after the first incident, blocked the wheels when the truck was parked. During one of those trips, the transmission jumped out of gear while he was driving. Simington returned the truck to JED at the end of the day and told his uncle, Larry Boyd, there was “something wrong” with the parking brake. Simington said Boyd was ten to fifteen feet away with his back him, and he was not certain if Boyd heard him. No one asked him if he had any problems with the truck. Two days after Waldrip’s accident and again months later, Randy Reed inspected the truck’s parking brake system and transmission. Reed, a mechanic with more than twenty-three years’ experience, said he found damage in both. Reed testified the parking brake drum, brake shoes, and drive shaft were coated in oil, and the brake shoes were worn down below the friction into the metal backing plates. Reed said he had inspected hundreds of parking brake systems on similar trucks and had seen “a lot of damaged components,” but he had never seen “one of this factor, not with that kind of grease on it.” Further inspection showed that half of the transmission’s six-quart capacity had leaked though the rear transmission seal. The seal had numerous indentations all around its circumference, leading Reed to conclude it had been installed with an improper tool, destroying its integrity and causing it to leak. According to Reed, the fluid leaked onto the parking brake assembly, accelerating the wear of the shoes and causing them to separate from the metal backing plates. Reed testified a correctly maintained and adjusted parking brake locks the drive shaft so the truck will hold when the brake is engaged. If oil or any petroleum product gets on the brake shoes, he said the shoes must be replaced and cannot be simply cleaned. Here, he said, the failure of the parking brake was a direct result of the condition of the brake shoes and drum. Reed believed, after considering the testimony of witnesses regarding the parking brake failures and the timing of when the failures occurred, the parking brake was not functioning by some time in 2005 and, more particularly, was not working in October 2005 after the final PM-5 inspection or after the final safety certification in July 2006. Reed said U-Haul records showed only a twelve-minute adjustment during the last PM-5 inspection in October 2005, and, after that date, no inspection, repair, or maintenance of the parking brake took place. With respect to the transmission, Reed testified the low level of transmission fluid caused damage to the first and reverse gears. Reed said the damage created a false gear that could deceive drivers into believing the truck was in first gear when it was not. Reed explained that the transmission, if fully engaged in a gear, would hold a truck in place, regardless of whether the parking brake was engaged. Consequently, if a driver was able to actually get the truck into gear, it would hold in place, regardless of whether the parking brake worked. However, if the driver thought he put the truck in gear, but it was actually in the “fake out gear,” the gear would not hold the truck. Reed believed the rear seal had been leaking “for a while” given the “amount of residual [fluid] on the transmission.” Finally, Reed rejected U-Haul’s theory that the transmission seal leak was caused by someone driving with the parking brake engaged, explaining at length how the physical evidence did not fit that theory because there was no overheating of the necessary components. If the truck had been properly maintained and inspected, Reed said the condition of both the brake and transmission could have been detected. Reed said he had reviewed some 3,500 U-Haul documents regarding the truck’s rental, maintenance, and repair, and based on those records and his own personal observations, he did not believe the inspections on the truck were done correctly, “if any at all,” and said maintenance of the truck was “for lack of better terms not— not there.” Dr. Kurt Marshek, a professional engineer with a doctorate degree in mechanical engineering, also criticized U-Haul’s policies and practices regarding the safety of its vehicles. Marshek testified he reviewed thousands of documents in connection with this case, including U-Haul policies and procedures regarding maintenance, inspection, and repair of its vehicles and the JH 6097 in particular. Marshek discussed one particular U-Haul repair/maintenance policy bulletin, which was still in effect at trial and was signed by U-Haul’s founder, L.S. Shoen. The bulletin, which replaced a December 1982 policy, warned about over-repairing vehicles and embraced the concept of the “one-hoss shay.” In the bulletin, Shoen explains that “[w]e want good repair, no perfect repair” and says “in repairing a vehicle or a machine, we try to repair parts so that the part will last as long as all other parts and the whole will fail at one time.” Attached to the bulletin was a poem written by Oliver Wendall Holmes about the “one-hoss shay.” Marshek, who was familiar with the concept, said it had been applied for designing mechanical equipment so that it “all fails at once.” But, Marshek said, it is problematic to apply the theory to a safety device, such as a parking brake. Marshek explained that it makes no sense to attempt to repair a compromised brake system so that it fails when everything else on the truck fails. In fact, Marshek said, “it probably doesn’t even make sense to have the truck on the road anymore with 225,-000 miles on it or 228,000 miles, especially if it’s having all sorts of mechanical problems, which this particular truck was having.” Marshek said his review of U-Haul documents showed that a DOT inspection was required annually, and the last DOT inspection on the JH 6097 was in May 2005. Marshek said the truck was due for a new inspection in May 2006, but one was not done. He also testified the mileage-based PM-5 inspection, performed in October 2005, did not relieve U-Haul of its duty to perform the federal inspection because the latter is a time-based inspection. Marshek explained “sometimes people don’t use trucks that often in a year, and so it just makes sure that that truck is inspected even though it may not be used that much.” Given the various witnesses’ testimony that the parking brake failed after the last PM-5 inspection, Marshek told the jury that if a proper DOT inspection been done prior to September 2006, the failure of the parking brake would have been detected. He further opined that the failure to perform that inspection was a proximate cause of the accident. Further, Marshek testified that based on his review of U-Haul documents and the testimony of James Guinn, a former U-Haul center general manager, safety certifications were required on rotation trucks every thirty days, but the JH 6097 was not safety-certified every thirty days. Marshek opined that, based upon reasonable mechanical probability, if U-Haul had performed the safety certifications every thirty days in at least the three months leading up to the accident, the failure of the parking brake would have been detected. Marshek also stated that the last safety certification in July 2006 was not properly performed, given that the first renter after the inspection, Derrick Bradley, said the truck rolled when the parking brake was applied. Finally, Marshek testified the truck had an extensive repair history, which increased in 1998 as the truck got older with higher mileage. He testified at length regarding the repairs, especially those related to the transmission and parking brake system. U-Haul’s experts who examined the truck agreed the parking brake was inoperable and the transmission damaged at the time of the accident, but they disagreed on the cause and the extent. Thomas Green, a consultant in vehicle accident reconstruction, cause, and analysis as well as vehicle systems analysis, examined the truck’s transmission. Green, who holds a doctorate in mechanical engineering, testified he observed damage to the reverse gear teeth, but he said all other gears “looked to be in good shape” and saw no abnormal signs of wear. He believed the damage was caused by one or more drivers trying to shift into reverse while the vehicle was moving forward. While the damage could cause problems shifting into reverse, he said it would not cause problems shifting into first gear. Further, he said, he did not see an “absence of lubrication” that “would cause any problem.” Green agreed that grease coated the parking brake and came from a leak in the rear transmission seal. He said the leak could have been caused by dirt or debris getting into the seal, improper installation of the seal, or heat generated by driving with the parking brake engaged. He did not believe the seal was improperly installed, although he agreed an improper tool may have been used, leaving heat or debris as the likely causes of the leak. Green said the lip was not cut and the seal appeared to be properly seated around its circumference. Because the fluid drained from the transmission contained metal, he believed the seal began leaking after July 2005, when the truck’s transmission fluid was drained and changed. He acknowledged the leak could have been discovered by either looking at it or checking the fluid level. Finally, he concluded the transmission had been properly maintained, explaining the gears were not abnormally worn and were lubricated and that U-Haul records showed the transmission fluid was changed and checked when it was supposed to be. Ken Sorenson, a professional engineer with a doctorate in mechanical engineering, inspected the truck’s parking brake system and found it contaminated with oil and debris and the brake shoes worn down to the metal plate. He concluded the truck had been driven with the parking brake applied, which wore down the brake shoes. Sorenson said he conducted independent testing using a similar truck with moderately and completely worn brake shoes. Sorenson said the parking brake was adjusted so the truck would not move when in second gear. He then drove the truck in first gear with the parking brake engaged and, after driving between one and six miles, he said the parking brake handle fell into the disengaged position. He said that finding was significant because a person could be driving with the parking brake engaged and not know it. Finally, he said he also inspected the transmission, and like Green, saw that the spline teeth on the reverse gear were deformed. Other than that damage, he said the rest of the gear teeth looked “okay.” U-Haul also presented three witnesses who rented the truck during the relevant time period and said they had no problem with either the gears or parking brake. Pablo Casanova drove the truck in late September 2005 and said the truck was in perfect condition. He parked the truck overnight on an incline, did not put it in gear but set the parking brake. He said the truck did not move. Bree Adams rented the truck from JED in July 2006 and said she did not have any transmission problems. Further, she said truck did not move when the parking brake was engaged, although she acknowledged she parked on a generally flat surface and consequently would not expect the truck to roll. Similarly, Jeff Everett testified he rented the truck from JED in August 2006. He parked on both flat and inclined surfaces, put the truck in gear, and set the parking brake. The truck did not move. However, Everett said he did not know if the gears or parking brake held the truck. He also acknowledged he had “no idea” if the parking brake was working because he did not test it. Over objection, appellees presented evidence about investigations of U-Haul’s safety practices in Canada. Brian Patterson was president of the Ontario Safety League, the oldest public safety advocacy group in Canada. As president, he said he regularly worked with the Royal Canadian Mounted Police, the Ministry of Transportation, and the Ontario Provincial Police. In 2005 and 2006, Patterson testified the OSL reviewed the routine practices regarding the safety of U-Haul trucks that came into Canada from the United States. Patterson told the jury he personally observed the inspection of about thirty U-Haul vehicles by licensed mechanics, and the evidence he reviewed “indicated a systemic disregard for public safety in the maintenance of vehicles in the Province of Ontario.” More than fifty percent, he said, had brake problems, adding that he recalled three specific vehicles with inoperable parking brakes. Other problems included leaking brake lines, leaking transmission fluid, broken power steering hoses, bald tires, faulty suspension, broken brake drums, faulty shocks, and rotted truck floors that could present carbon monoxide poisoning issues. As a result of the initial investigation, other Canadian governmental investigations of U-Haul, and as part of those investigations, Patterson said about 1400 vehicles were inspected. Brake issues were studied separately in British Columbia, and Patterson testified fifty percent of the trucks tested had faulty brakes and “would not have been allowed on the road.” Patterson had no documentary evidence to substantiate his testimony. Patterson explained that the inspection reports were retained by the garage, and the garage was now “out of business.” Additionally, photographs taken at the time of the inspections were in the possession of the Toronto Star newspaper, which along with a Canadian television station, published “exposes” on U-Haul. Finally, Patterson said he dealt directly with top U-Haul officials in Canada, one of whom was Claude Bouchet. According to Patterson, Bouchet told him that “particularly in 2005 he had absolute difficulty getting any action from ... U-Haul International, and in fact, he had no real say over being able to correct the problems that [had] been identified in Canada.” Ultimately, Patterson said Bouchet told him he had spent more than $25 million to repair the fleet-related problems and “scrapped” a number of vehicles that failed to meet the Ontario standard. Joe Shoen is chairman of the board of UHI and is the son of the company’s founder. He testified that UHI owned a fleet of 100,000 trucks that were rented throughout the United States and Canada. Of these, more than 4,500 were standard transmission jumbo haulers with more than 200,000 miles, like the JH 6097. Shoen said he was not concerned about the number of higher-mileage trucks still on the roads and then explained the various features of the truck, such as the wider ramp, lower floor, air-ride suspension, and “excellent fuel econony.” He said the truck was popular among customers and described it as a “very unique and wonderful tool” for moving and as “arguably the best truck that’s ever been offered for rent in North America to accomplish that objective.” Further, he explained that the truck’s service life when built was 300,000 miles. He said the truck had a tremendous amount of “utility value for the company,” and as long as it was maintained, he believed it was “a very good solution for the customer.” According to Shoen, UHI created an inspection maintenance system for its trucks that allowed every participant in the system to stop the rental of a truck. According to Shoen, the system operates on the presumption that the truck “doesn’t rent” until someone in the system makes a “positive move.” The process begins with the R & D tag, which is used on each rental and requires the agent to go through eight steps before allowing the truck to rent. The next level is the periodic safety certification inspections. Shoen explained that U-Haul stores rent three times more frequently than independent dealers; consequently, equipment at the dealers is inspected three times less frequently although Shoen said it “ends up being about the same interval based on numbers of customers through the vehicle.” The third level of UHI’s program is the preventive maintenance inspections, which are mileage based. Additionally, although the company is not subject to federal regulations, Shoen said it voluntarily performs annual Department of Transportation (DOT) inspections on its trucks. A fundamental part of the inspection/maintenance program is having U-Haul employees sign off on their work, which Shoen believed gave credibility to what the employee represented was done. For example, he believed Crews properly performed all safety certifications on the truck in the months before the accident because Crews signed off on the inspections, saying “if [Crews] certified that it worked, then it worked.” If the parking brake did not work the next day when the truck was rented to the first customer, he said “something happened in the intervening time and most likely someone drove the truck with the parking brake on.” Shoen testified UHI’s system is “as good or better” than his “truck rental peers.” He believed that, on a scale of one to ten with ten being the best, “U-Haul is rated a 10 in safety.” He agreed that a truck with an inoperable parking brake would not be “a 10” and would, in fact, be a “material shortcoming” of the truck. He also said that an inoperative brake would be the fault of “[everybody probably involved in the U-Haul system ... from myself down through and including the people at the actual rental location.” He disputed any suggestion it was somehow to U-Haul’s advantage to delay and not perform maintenance, explaining if there is a lack of maintenance, it could have “worse financial consequences than the cost of the maintenance ...” He acknowledged U-Haul’s system relies, in part, on the subjective complaints of a customer who may not have mechanical knowledge. Nevertheless, he did not believe it would be better to perform a “simple mechanical check” on the parking brake and transmission before renting the truck. Shoen said he was familiar with the criticisms of U-Haul’s safety practices by Canadian officials and described them as “everything from a bald tire or a frayed brake line, to registration not on the vehicle.” However, he focused on what he termed an “entire class” of complaints regarding the location of the safety decals, saying the vehicles would be marked “out of service” because officials had to open the door of the vehicle to see the DOT sticker and “they’re very tidy with their paperwork in Canada.” As a result, he said, the location of the sticker was moved on every truck in the system. With respect to the Province of Ontario, Shoen testified that from January 26, 2006 to January 25, 2008, only about seven percent of U-Haul’s trucks were removed from service for either driver or vehicle issues. Shoen explained that Canadian officials could ground a truck for any number of reasons independent of U-Haul, such as if a driver failed to wear eyeglasses. At the conclusion of the evidence, the jury found the negligence of UHI, UHT, and JED proximately caused the occurrence and apportioned liability at 50, 49, and 1 percent, respectively. The jury also found (1) JED was negligent while acting in the furtherance of a mission for the benefit for UHT and subject to UHT’s control as to the details of the mission; UHT was negligent while acting in furtherance of a mission for the benefit of UHI and subject to the control by UHI as to the details of the mission; and (3) UHI authorized UHT to delegate JED all or part of UHT’s responsibility to further the mission of UHI or ratified the delegation of responsibilities. The jury also found UHI and UHT were grossly negligent. The jury awarded Waldrip actual damages as follows: (1) $1 million past and $1.5 million future physical pain and mental anguish; (2) $170,000 past and $935,000 future loss of earning capacity; (3) $2.5 million past and $500,000 future disfigurement; $2.5 million past and $5 million future physical impairment; and $1.4 million past and $3 million future medical expenses. In addition, it awarded loss of consortium damages to his wife and two daughters. The jury awarded Waldrip exemplary damages of $42 million against UHI and $21 million against UHT. After considering the parties’ post-judgment motions and responses, the trial court reduced the exemplary damages to $11,760,000 against UHI and UHT each, and rendered a $45,689,248.63 judgment, plus pre- and post-judgment interest. This appeal ensued. I. Negligence In the U-Haul appellants’ third issue and JED’s first issue, they contend the evidence is legally and factually insufficient to support the jury’s negligence findings against them. In reviewing a verdict for legal sufficiency, we credit evidence that supports the verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Anything more than a “scintilla of evidence” is legally sufficient to support the jury’s finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). To be more than a scintilla, the evidence must rise “to a level that would enable reasonable and fair-minded people to differ in their conclusions.” See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994). In reviewing a factual sufficiency challenge, we consider and weigh all the evidence in support of and contrary to the finding and will set aside the verdict only if the evidence supporting the jury finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex.App.-Dallas 2008, pet. denied). In making this review this Court is not a fact finder, and we will not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 392 (Tex.App.Dallas 2000, pet. denied). To prevail on their negligence claim, appellees had to establish the existence of a duty, a breach of that duty, and damages proximately caused by the breach. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). To establish breach of duty, the plaintiff must show the defendant did something an ordinarily prudent person exercising ordinary care would not have done under those circumstances, or the defendant failed to do that which an ordinary prudent person would have done in the exercise of ordinary care. Lincoln Prop. Co. v. DeShazo, 4 S.W.3d 55, 61 (Tex.App.-Fort Worth 1999, pet. denied) (op. on reh’g); Gannett Outdoor Co. of Tex. v. Kubeczka, 710 S.W.2d 79, 87 (Tex.App.-Houston [14th Dist.] 1986, no writ). To prove the defendant failed to use “ordinary care,” the plaintiff must show the defendant did not exercise that degree of care a person of ordinary prudence would have used under the same circumstances. Gannett Outdoor Co., 710 S.W.2d at 87. Appellants do not dispute the failed parking brake was the proximate cause of the accident that resulted in Waldrip’s injuries, nor do they challenge on appeal appellees’ evidence that the damage to the parking brake system was caused when U-Haul mechanics improperly installed a rear transmission seal, destroying its integrity and allowing it to leak transmission fluid onto the brake shoes. Evidence at trial established the truck presented a danger if it was rented without an operating parking brake and a truck like the JH 6097 should not be rented without an operating parking brake. Even UHI’s chairman of the board Joe Shoen testified that an inoperative parking brake was a “material shortcoming” that would be the fault of “[everybody probably involved in the U-Haul system ... from myself down through and including the people at the actual rental location.” Appellees further presented expert testimony that the condition of the parking brake and transmission suggested the problems had existed for a long time, at least since 2005. It was not disputed at trial that once a petroleum product gets on the brake shoes, ordinary care required the shoes be replaced and not simply cleaned. Finally, the jury heard evidence, disputed by appellants, that customers had reported a failed parking brake for months, yet some of the complaints were not recorded on the R & D tags and the brake was never repaired. With this in mind, we consider whether appellants acted with ordinary care. We begin with UHI. 1. UHI UHI asserts no evidence shows it knew or should have known of any parking brake or transmission problem or that the truck had been rented prior to being repaired. The evidence established UHI controlled and designed the system for repairs and maintenance of its fleet of 100,000 trucks which traveled across the United States and Canada. UHI was the entity that maintained and managed the records of repairs and maintenance by way of a computer database. All information of repairs and maintenance were entered in the database. If a safety issue arose during inspections or was reported by a customer, UHI policy required the truck be grounded until repairs were made, and the information entered into the system in the Downed Equipment Tracker. Thomas Coffee, UHI’s director of repair, analysis, and support, maintained the database. In September 2005, the JH 6097 was grounded in Florida after a customer reported the “PARKING BRAKE LIGHT STAYS ON” and “NO PARKING BRAKE.” This information, including the report of no parking brake, was recorded in UHI’s computer database in the Downed Equipment Tracker, as shown in Plaintiffs Exhibits 4 and 114, the DET tracker history of this truck. A mobile repair unit was dispatched the next day to make the necessary repairs to the parking brake switch and the parking brake; however, when the MRU unit arrived, the truck had been rented and was not at the location. Repair records show that two weeks later, an MRU repaired the parking brake switch at a Florida rental location. Although the MRU made other repairs to the truck, the records do not show any repairs were made to the parking brake itself. Two weeks after the switch was replaced, the truck underwent and passed a PM-5 inspection. Records show that during this inspection, twelve minutes were spent on an “adjust and lube” to the parking brake. Appellees’ expert mechanic Reed, who inspected the truck shortly after the accident, testified that twelve minutes would not be long enough to visually inspect the parking brake. Moreover, Reed testified that if oil gets on the parking brake shoes, ordinary care required that the shoes be replaced; they could not be cleaned. An inspection of this truck after the accident revealed the parking brake drum, brake shoes, and drive shaft were coated in transmission oil that Reed said leaked from a rear transmission seal improperly installed by U-Haul workers in 2003. Reed said the seal had been leaking “for a while” given the amount of fluid in the transmission. Moreover, the road test portion of this inspection raised questions about whether the inspection was complete or proper because the mileage for the truck road-tested did not correspond to the JH 6097. Regardless, the following the day, the truck was rented to Reveles, who drove it from Florida to Texas. In a videotaped deposition and a statement admitted into evidence, Reveles, an experienced heavy-duty truck driver, testified he immediately had problems with the truck’s performance. In particular, he said the truck would not start, the parking brake did not work, and he had trouble shifting gears. Reveles reported these problems to the Florida U-Haul agent who rented the truck. The agent told him to contact UHI’s 1-800 customer hotline. Although Reveles did not say whether he made the call, other evidence showed he did, including the call record for the truck. That record showed only a report of a dead battery; however, appellees’ expert Mar-shek testified on cross-examination, without objection, that Reveles called the 1-800 number to complain about the truck’s condition, including the inoperable parking brake. UHI asserts it should not be held accountable legally “for not knowing, piecing together, and understanding the import of every piece of data maintained in an extensive database.... ” We cannot agree. The evidence showed UHI’s fleet of trucks were rented throughout the United States and Canada. This truck, in particular, had spent the previous year in Florida and, before that, spent time in other states as well as Canadian provinces. Additionally, the truck had undergone repairs and maintenance in the territories of fifty-four different marketing companies in the United States and Canada in the previous eleven years. UHI was the one entity that maintained and managed those records. Further, the evidence showed UHI was not simply a repository for the information; it analyzed and utilized that information to send various directives to its subsidiaries regarding inspections and maintenance of particular trucks. UHI also argues even if it knew or should have known about the parking brake problem, the truck “passed several subsequent tests of the parking brake after the alleged report and before Waldrip’s accident almost a year later, negating any possible inference that Coffee or UHI was negligent by allowing the truck to be rented.” UHI’s argument, however, misses the point. As Reed, the expert mechanic, testified, a parking brake does not repair itself, and the evidence showed no repairs were made to this parking brake after UHI had notice. That minor safety inspections failed to uncover the problem UHI was already aware of does not relieve UHI of its duty of ordinary care to ensure trucks with inoperable parking brakes are not allowed on the roads. Further, appellees presented extensive testimony and documentary evidence regarding the inspection, maintenance, and repair records for this truck. The evidence showed the truck was eighteen years old with more than 233,000 miles. The repair history was extensive and, as one expert said, reflected chronic problems with the transmission and parking brake system. That same expert questioned whether the truck should have even been on the road at all, given the truck’s history. Having reviewed the evidence in the light most favorable to the jury verdict, we conclude it is legally sufficient to support the jury’s negligence finding against UHI. We note that UHI’s issue also purports to challenge factual sufficiency, although no such argument is briefed. Regardless, having reviewed all the evidence and giving deference to the jury’s credibility determinations, we conclude it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. 2. UHT Next, we consider the evidence with respect to UHT. Reveles testified he returned the truck to the U-Haul center on Ferguson Road in Dallas in October 2005. He parked in the front of the center, set the parking brake, put the truck in gear, and turned off the engine. Reveles testified that he and a friend, Juan Sanchez, went inside, and Reveles reported the parking brake did not work and he had problems shifting gears. Reveles testified he had Sanchez translate his complaints in English to the agent, and Reveles said he understood what was being said. The U-Haul agent’s response was to tell him that he owed him for two extra days. As he and Sanchez were leaving the center, Rev-eles testified he observed the truck rolling backward across the parking lot. Reveles said he watched as a worker in a U-Haul uniform chased the truck down and stop it. Despite Reveles’s report, UHT did not ground the truck or repair it; rather, it continued to rent the truck out and, in fact, transferred it to JED to continue to be rented to customers. In response to this evidence, UHT simply argues that Reveles’s testimony was not credible because (1) Reveles did not report that the truck rolled with the parking brake engaged and (2) Reveles communicated his complaints through Sanchez and Sanchez did not testify. Neither argument has merit. Even if Reveles did not specifically report that the truck rolled when the parking brake was engaged, he testified he reported the parking brake did not work, and that information was sufficient to put UHT on notice that a safety issue existed. Further, with respect to how the communication was made, Reveles testified he had lived in this country for thirty years, he understood English, and he understood the conversation between Sanchez and the U-Haul agent. It was within the jury’s province to determine the weight to give this testimony. UHT also asserts that even if Reveles reported a parking brake problem, such a report would not be “sufficient evidence that UHT was negligent in allowing JED to rent the truck to Ann[e] [Waldrip] nearly a year later” because the truck passed subsequent minor safety inspections. UHT does not otherwise explain or provide legal authority for its position, and we reject any notion that UHT, once it had notice, satisfied its duty to not place the truck on the road until the parking brake was repaired by relying on minor safety certification inspections for which jurors could have believed were also negligently performed. In particular, the evidence showed that Jason Crews performed three of four of the inspections, including the last one performed before the truck was eventually driven by Waldrip. A UHT executive hired Crews knowing he had no mechanical experience with heavy-duty trucks, and Crews displayed his lack of knowledge with respect to a truck like the JH 6097 during his testimony at trial. Although Crews testified he would not have safety-certified the vehicle if the parking brake had not properly functioned, the evidence showed that paperwork regarding this inspection was missing. Moreover, evidence showed the parking brake failed on the first renter after Crews’s final July 2006 safety certification, and several other customers who rented the truck over the next two-and-a-half months gave similar testimony. From this evidence, a reasonable juror could have believed Crews failed to properly perform the inspection. As Reed testified, a parking brake does not repair itself and a proper safety certification inspection would have revealed the parking brake issue. Having reviewed the evidence, we conclude it is legally sufficient to support the jury’s negligence finding against UHT. Like UHI, UHT has not briefed its complaint regarding the sufficiency of the evidence. Regardless, having reviewed all of the evidence, we cannot conclude that the jury’s finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. 3. JED Evidence showed UHT transferred the truck to JED on June 26, 2006, and Crews safety-certified it during the first week of July. The first person to whom JED rented the truck after Crews’ inspection testified the truck did not hold when the parking brake was engaged. Over the next two months, three other customers had problems with the parking brake and/or transmission. One of these customers, Steve Marco, reported a parking brake problem when he returned the truck to JED. Nevertheless, JED did not ground the truck and did not notify UHT of the problem. Instead, JED continued to rent the truck. This evidence is both legally and factually sufficient to support the jury’s negligence finding against JED. Finally, we note another basis for affirming the jury’s negligence verdict exists. In three separate questions, the jury was asked (1) was JED negligent while acting in furtherance of a mission for the benefit of UHT and subject to control by UHT as to the details of the mission; (2) was UHT negligent while acting in furtherance of a mission for the benefit of UHI and subject to control by UHI as to the details of the mission; and (3) did UHI authorize UHT to delegate to JED all or part of UHT’s responsibility to further the mission of UHI, or did UHI ratify such delegation of responsibilities, if any. The jury answered each question affirmatively. On appeal, neither UHI nor UHT challenges the legal or factual sufficiency of the evidence to support the findings to these questions. Instead, in a footnote, only UHI argues it is not vicariously liable “since neither UHT nor JED was negligent.” Having found the evidence supported the negligence findings against all defendants, we conclude the unchallenged jury questions regarding vicarious liability provide an additional basis to affirm the negligence verdict as to both UHI and UHT. We overrule the U-Haul appellants’ third issue and JED’s first issue. II. Gross Negligence In their second issue, the U-Haul appellants challenge the legal and factual sufficiency of the jury’s gross negligence findings against them. The gross negligence questions for both UHI and UHT were identical. Each asked whether the jury found by clear and convincing evidence that the “occurrence in question resulted from gross negligence attributable to” UHI (Question 10) and UHT (Question 9). A corporation is liable for punitive damages for gross negligence only if the corporation itself commits gross negligence. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998). Gross negligence consists of both an objective element and subjective element. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001). As provided by the charge, appellees had to prove by clear and convincing evidence (1) that, when viewed objectively from the defendant’s standpoint at the time of the occurrence, the defendant’s act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others and (2) the defendant had actual, subjective awareness of the risk involved but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. See Tex. Civ. Prac. & Rem.Code Ann. § 41.001(11) (Vernon 2008). Under the first or objective component, “extreme risk” is not a remote possibility or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff. Ellender, 968 S.W.2d at 921. Under the second or subjective component, “actual awareness” means that the defendant knew about the risk, but the defendant’s acts or omissions demonstrated that it did not care. Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (1993). The jury was instructed for UHI or UHT to be grossly negligent, it had to find the person or persons responsible for the act or omission was employed by UHI/ UHT in a managerial capacity and was acting in the scope of that managerial capacity; or UHI/UHT authorized the doing and the manner of the act; or an employee of UHI/UHT was unfit and UHI/UHT was reckless in employing him; or (4) UHI/ UHT or an employee in a managerial capacity of UHI/UHT ratified or approved the act. See Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex.1997). Employed in a “managerial capacity” was defined as (1) a corporate officer of UHI/UHT; (2) a person who had authority to employ, direct, and discharge an employee of UHI/UHT; or (3) a person to whom UHI/UHT has confided the management of the whole or a department or division of the business of UHI/UHT. In conducting a legal sufficiency review under the “clear and convincing” standard required to sustain a gross negligence finding, we “look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could reasonably form a firm belief or conviction that its finding was true.” Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 609 (Tex.2004) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002)). In a factual sufficiency review of a finding subject to a clear and convincing standard of proof, we must give due deference to evidence that a fact finder could reasonably have found clear and convincing. In re J.F.C., 96 S.W.3d at 266. If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not have reasonably formed a firm belief or conviction, then the evidence is factually insufficient. Id. 1. UHI’s gross negligence Waldrip asserts two bases to affirm the jury’s findings that UHI was grossly negligent: (1) Coffee and/or Shoen was personally responsible for grossly negligent acts and omissions and (2) Shoen expressly ratified or approved the negligent acts or omission of UHI or that UHT and/or JED committed while acting for UHI. We begin with Coffee, who managed UHI’s repair database. The only evidence presented about Coffee was a two-and-a-half page affidavit executed to oppose a discovery request. Other than Coffee’s title as director of repair, analysis, and support of UHI and his statement that he has managed the database since 1995, there is no other information regarding Coffee’s capacity within UHI. Because appellees did not produce evidence that Coffee was a corporate officer, had authority to employ, direct, and discharge UHI employees, or that he managed a department or division, we cannot conclude there is clear and convincing evidence that he was employed in a managerial capacity. See Hammerly Oaks, 958 S.W.2d at 391. Shoen, on the other hand, is clearly a corporate officer. But there is no evidence that he had any knowledge, prior to the accident, of any problems with the parking brake and/or transmission of the JH 6097 or of the truck at all, and any suggestion by appellees otherwise is simply unsupported by the record. Further, Waldrip relies on the “infamous ‘one-hoss shay’ policy bulletin,” which he contends was issued by Shoen. To the contrary, the record established that the policy was issued by Shoen’s father, L.S. Shoen, more than twenty years ago, and no evidence showed any current employee was even familiar with the policy, much less that the policy was followed. Regardless, having read the policy, we cannot conclude it is clear and convincing evidence of gross negligence. Waldrip criticizes the policy for advocating “good repair, not perfect repair.” But the fact that a policy promotes “good repair, not perfect repair” does not constitute gross negligence; the policy did not encourage, mandate, or otherwise embrace substandard or even negligent repair. Finally, Wal