Opinion
05-22-00677-CV
02-05-2024
JAMES ALAN BARNES, INDIVIDUALLY AND AS NEXT FRIEND OF E.B., A MINOR, AND AS THE PERSONAL REPRESENTATIVE OF THEESTATE OF C.A.B., DECEASED, AND MIRTHA BARNES, INDIVIDUALLY AND AS NEXT FRIEND OF E.B., A MINOR, Appellants v. FREEDOM POWERSPORTS, LLC, Appellee
On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-22-07429
Before Justices Partida-Kipness, Reichek, and Miskel
MEMORANDUM OPINION
ROBBIE PARTIDA-KIPNESS JUSTICE
C.A.B, the ten-year-old son of appellants James Alan Barnes and Mirtha Barnes, died in a 2016 rollover accident involving a utility terrain vehicle owned by Alan. Their eight-year-old daughter, E.B., and Alan were injured in the accident. Alan and Mirtha sued the vehicle's manufacturer, the vehicle's seller, and appellee Freedom Powersports, LLC (Freedom). Freedom, an authorized dealer for Alan's vehicle, serviced the vehicle prior to the accident. In this proceeding, Alan and Mirtha appeal an order granting Freedom's no evidence motion for summary judgment. We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
We refer to James Alan Barnes and Mirtha Barnes by their preferred first names of Alan and Mirtha.
Alan filed suit individually, as next friend of E.B., and as the personal representative of the Estate of C.A.B. Mirtha joined the underlying proceeding as an intervenor in her individual capacity and as next friend of E.B. We will refer to appellants collectively as the Barnes Parties.
BACKGROUND
In March 2013, Alan bought a Can-Am Commander 1000 XT Side-by-Side vehicle, which is a multi-passenger utility terrain vehicle (the UTV). Bombardier Recreational Products, Inc (BRP) designed, manufactured, and marketed the UTV. Alan bought the UTV from Richardson Motorsports, Ltd. On June 29, 2016, BRP published a safety bulletin (the recall notice) applicable to the UTV. The recall notice described a "Problem" with the steering coupling and stated, "the steering coupling splines may strip on [the] rack and pinion steering assembly[.] [and] [i]n some circumstances, this situation may result in a loss of steering control and possibly cause injuries or even death." The recall notice stated the "solution" to the "problem" was to "[r]eplace the existing steering coupling by a new steering coupling design using" the procedure set out in the recall notice.
The United States Consumer Product Safety Commission's website directed consumers to:
[I]mmediately stop using the recalled vehicles and contact [a] BRP Can-Am side-by-side dealer to schedule an appointment for a vehicle inspection and free repair. The free repair will be available on June 30, 2016.https://www.cpsc.gov/Recalls/2016/BRP-Recalls-Side-By-Side-Off-Road-Vehicles (last visited Jan. 18, 2024). Alan testified neither the recall notice nor information about the recall were provided to him or communicated to him prior to the accident.
I. August 26, 2016 - Freedom performs a "major service" on the UTV
Freedom is an authorized BRP Can-Am Side-by-Side service dealership. Alan took the UTV to Freedom on August 26, 2016, for an inspection and oil change. According to Alan, he took the UTV to Freedom instead of Richardson Motorsports, where he purchased it, because Richardson Motorsports could not get the UTV in for service before a family hunting trip planned for the end of September. Alan testified he "wasn't going to take [the UTV] on the trip unless it had been inspected" because his children would be riding in the UTV during the trip. Richardson Motorsports recommended Alan have the UTV serviced at Freedom.
Alan recalls telling Freedom's service advisor "I need a full service on it," instructing the advisor to call him if the advisor saw anything else wrong with the UTV, and telling the advisor he would "figure out a way to get it fixed." No one from Freedom called Alan about the recall or the need for additional repairs. After he dropped the UTV off for service, the only communication he received from Freedom was the notification the service was complete and the UTV was ready for pick up.
The service invoice stated the service performed on the UTV was a "major service" during which Freedom changed the UTV's oil, installed a lightbar wire harness and battery, flushed the fuel tank, and installed a winch rope. According to Freedom's designated corporate representative Greg Day, "major service" is "more of an extensive service than --than a minor service." During a major service, the service advisor conducts a multi-point inspection and "goes over the entire unit, specific to the amount of hours and what is required by the manufacturer as far as inspecting, replacing, adjusting."
Day testified Freedom requires its service advisors to run a unit status report on any vehicle brought to the service department. When a Freedom service advisor runs a unit history report for a vehicle he is servicing, the advisor obtains the unit history report from BRP software "to check for warranty coverage, as well as open recall." If the customer's unit is subject to a recall, Freedom will "immediately communicate with the customer that their unit has a recall, so we can perform it for the customer." These policies were in place when Freedom serviced the UTV in 2016.
According to Day, service departments want "to obtain as much service work as possible." Freedom and other dealers have an incentive to look for recall notices and try to repair them because they are services "paid for by the manufacturer, not an expense to the -- to the customer. So, generally, it's - it's something that gets performed."
Day testified Freedom generally received recall notices within a few days of the manufacture issuing the recall. Day believes Freedom received the recall notice at issue here "pretty quick" after BRP issued it. Because all recalls are handled by the service department, Freedom notifies its service management, service advisors, and technicians of every recall received.
Jeremy Lewis was the service advisor who handled the service on the UTV on August 26, 2016. Day confirmed Lewis pulled the UTV's unit history report on August 26, 2016. Freedom's records confirm the unit history report pulled by Lewis showed the BRP steering recall was open on the UTV, and the required repairs under the recall had not been performed on the UTV. Day agreed a reasonably prudent servicer or seller, such as Freedom, would have communicated that open recall to Alan. Freedom did not inform Alan of the recall and performed the "major service" without correcting the recalled defect. Freedom's records also showed the parts needed for the recall were not in inventory the day Freedom serviced the UTV.
II. October 1, 2016 - the accident
On September 29, 2016, Alan, the children, and Alan's father went to a hunting lease on a ranch in Llano, Texas for the weekend. On September 30, Alan, the kids, and Alan's father drove the UTV around the property looking for sticks and rocks. Alan testified they drove the same road multiple times between the cabin and the rest of the property. The accident occurred at approximately 7 p.m. or 7:30 p.m. the following day, October 1, 2016. During the day, Alan again drove the UTV around the property with the children riding with him. The path they used included a left-hand curve as the UTV drove away from the cabin.
When the accident occurred, Alan and his children were driving to get more wood for a campfire. C.A.B. and E.B. were in the front seat with him. None were wearing seat belts. Alan described the accident in an affidavit:
At the time of the rollover, I was operating the 2014 Can-Am Commander XT 1000. At all times, I was traveling within the confines of the trail. The steering wheel quit working sometime during the left turn and immediately before the rollover. I tried to steer the ATV straight and it did not go straight. The ATV continued traveling towards the left, despite my efforts to steer the ATV straight. The ATV jolted and the steering started working again. The next thing I remember is laying in between my children.
In his deposition, Alan recalled the steering wheel "just quit. It was -- I was coming off that left turn and -- to go straight and it didn't go straight. It kept going left." He also clarified the steering wheel was not "stuck" when it quit working. Rather, the steering wheel "was not responding to [his] input" and "it felt like it was completely free."
When the UTV tipped over on the passenger side., E.B. was pinned by "the top of the roll bar across her chest," and C.A.B. was pinned under the UTV. Alan was able to free E.B. by lifting the UTV "with everything [he] had" until E.B. "was able to wiggle out." Alan was unable to lift the vehicle back to an upright position by lifting it on his own. After E.B. was free, Alan decided to use the UTV's attached winch to try to lift the UTV and pull C.A.B. out from under it. His first attempt failed, but on his second attempt he was able to move the UTV enough to get his son out from under it. C.A.B. did not survive his injuries and passed away on the scene.
III. The allegations against Freedom
Alan contends the accident occurred because the UTV's steering coupling was defective, and the accident, injuries, and C.A.B.'s death would not have occurred had Freedom performed the repairs mandated by the recall notice. Had Alan known of the recall, he would have had the UTV inspected and the steering coupling replaced as recommended by BRP before the family's trip:
I never received any recalls of any kind for my Can-Am Commander after the date of purchase. I never received any phone calls from anyone about a recall on my Can-Am Commander. Had I been made aware of any recall, from anyone, I would have brought my ATV for repairs
immediately. At the latest, I would have requested the repairs necessary to resolve the recalled parts be made, when I had the ATV serviced prior to my family's hunting trip which resulted in the incident.
Alan refers to the vehicle as an ATV. Freedom's corporate representative, Greg Day, testified the vehicle is a UTV. According to Day, ATVs and UTVs are both four-wheel vehicles. But a UTV has a steering wheel and a roll cage, whereas an AT V has handlebars and no roll cage. See, e.g., Practical Definitions of an ATV and a Side-By-Side Vehicle/UTV, https://can-am.brp.com/off-road/us/en/can-am world/blog/atv-vs-sxs-utv.html (last visited January 26, 2024). The distinctions between an ATV and a UTV are irrelevant to the issues presented in this appeal. We will refer to the vehicle as the UTV unless quoting a witness who refers to the vehicle as an ATV.
P. Keith Rogers, a licensed professional engineer, provided expert testimony for the Barnes Parties. Rogers concluded the UTV's steering coupling was faulty and rendered the UTV unreasonably dangerous:
The vehicle used by the Barnes family at the time of this incident, and the original coupler as installed, rendered that vehicle unreasonably dangerous taking into consideration the utility of the product and the risk involved in its use. This led to the incident causing 1 death and 2 injuries.
In Rogers' opinion, the UTV was an unsafe vehicle capable of responding in an unpredictable manner:
It is my opinion, a Commander with a faulty steering coupling with stripped spline teeth, like the Barnes' ATV at the time of the incident, would make the vehicle respond in an unpredictable manner and in a manner other than the driver intends, creating an unsafe vehicle. This was a producing cause of the Plaintiffs' and Intervenor[s]' injuries and or damages.
According to Rogers, "[a]n unpredictable steering system was likely the cause of the Barnes roll over." He also concluded the repairs mandated in the recall notice would have prevented loss of control of the UTV the night of the accident:
It is my opinion the Can-Am mandated recall which replaces the coupler assembly (p/n 709401138 with 709402000) was and is a sufficient solution to prevent the internal spline slippage and loss of
control of the vehicle. The alternative design would have prevented slippage that was seen on the subject steering coupling.
. . .
It is my opinion, had BRP implemented its alternative coupler design on the Barnes' ATV, this incident could have been prevented, or at the least[.] lessen the likelihood of death and severity of injuries in this incident.
In the trial court, the Barnes Parties pleaded Freedom was negligent and grossly negligent in the following acts and omissions:
• Failing to install door netting on the UTV;
• Failing to advise Alan of the need and reasons to install door netting on the UTV;
• Failing to advise Alan of the existence and nature of the safety recalls for the UTV (and others similarly designed or manufactured); and
• Failing to repair the defects set forth in the safety recalls.
During the summary judgment proceedings, the Barnes Parties abandoned the claims related to the door netting. Their recall-related claims remained.
THE SUMMARY JUDGMENT PROCEEDINGS
In its no evidence motion for summary judgment, Freedom sought summary judgment on the Barnes Parties' negligence and gross negligence claims. Freedom asserted there was no evidence to support the recall-related negligence claim because there was no evidence that:
• Alan was a purchasing customer of the UTV from Freedom;
• Freedom was negligent relating to providing advice about the existence and nature of the safety recall(s) issued for the UTV;
• Freedom's conduct with respect to providing or not providing advice about the existence and nature of safety recall(s) issued for the UTV was a proximate cause of the ranch accident, or a proximate cause of any harm or damages to the Barnes Parties;
• Any "act of [sic] omission" of Freedom was a proximate cause of the ranch accident.
• Any "act of [sic] omission" of Freedom was a proximate cause of any harm or damages to the Barnes Parties.
Freedom also asserted there was no evidence to support the gross negligence claim or exemplary damages because there was no evidence Freedom was negligent or grossly negligent and no evidence Freedom acted with malice or with actual conscious indifference.
In response, the Barnes Parties submitted a brief and evidence in support of the response. They abandoned the claims related to the door netting and instead focused on Freedom's alleged acts or omissions concerning the safety recalls. They maintain Freedom (1) knowingly failed to repair the UTV's recalled steering coupling when Freedom provided the UTV with a "major service" before the accident, and (2) failed or refused to inform Alan of the recall. The Barnes Parties' evidence included the recall notice, the deposition transcripts of Alan and Day, Alan's affidavit, the affidavit testimony of two expert witnesses and their expert reports, photographs, test results, and records from the Llano County Sheriff's Office.
Freedom's reply in support of the no evidence motion focused solely on the netting-related claims. Freedom did not directly address the arguments and evidence presented by the Barnes Parties related to the safety recalls. On appeal, Freedom maintains the failure to notify Alan of the recall and failure to make the repairs to the UTV per the recall were not "substantial factors" in the UTV's rollover and, as such, were not a proximate cause of the rollover or the injuries. Freedom further argues it did not have a duty to notify the Barnes Parties of the recall.
The trial court granted Freedom's no evidence motion for summary judgment and dismissed all claims asserted by the Barnes Parties against Freedom. This appeal followed.
STANDARD OF REVIEW
The legal sufficiency standard that governs directed verdicts also governs no-evidence summary judgment motions. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); RTLC AG Prods., Inc. v. Treatment Equip. Co., 195 S.W.3d 824, 829 (Tex. App.-Dallas 2006, no pet.). To defeat a no-evidence motion for summary judgment, the non-movant must produce evidence regarding each challenged element of each challenged claim that "would enable reasonable and fair-minded people to differ in their conclusions." Ford Motor Co. v Ridgeway, 135 S.W.3d 598, 601 (Tex. 2004); see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). "A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact." King Ranch, 118 S.W.3d at 751 (internal quotation omitted). In reviewing a no-evidence summary judgment, we consider evidence in the light most favorable to the non-movant, crediting evidence a reasonable jury could credit and disregarding contrary evidence and inferences unless a reasonable jury could not. De La Cruz, 526 S.W.3d at 592.
ANALYSIS
On appeal, the Barnes Parties argue we should reverse the judgment because Freedom abandoned its no evidence motion as to the recall-related claims, the no-evidence motion was insufficient as a matter of law because it failed to specify the elements of the claims being attacked, and they presented more than a scintilla of evidence to raise a fact issue on each element of their claims. We address each argument in turn.
I. Abandonment of Recall-Related Claims
In their first two issues, the Barnes Parties contend the trial court erred by granting summary judgment on their recall-related claims because Freedom abandoned its no-evidence motion as to those claims in its reply in support of the motion. We disagree.
Freedom's reply in support of the no-evidence motion did not address the recall-related claims or the evidence submitted by the Barnes Parties in support of those claims. Instead, Freedom addressed the netting claims, which the Barnes Parties abandoned in their response to the no-evidence motion. The reply's prayer referenced only the netting claims. Specifically, Freedom prayed for the trial court to grant the no-evidence motion "as to all claims and actual and exemplary damages brought by [the Barnes Parties] against Freedom based on or arising out of the safety netting issue brought by [the Barnes Parties] against Freedom . . ." However, Freedom did not state in the reply that it was no longer seeking summary judgment on the recall-related theories of negligence. Further, Freedom noted in the reply that it filed the no-evidence motion "against all claims by" the Barnes Parties.
It is unclear why Freedom chose not to address the Barnes Parties' summary judgment evidence in relation to the recall-related theories. Regardless, as the Barnes Parties point out in their opening brief, the motion itself controls in summary judgment proceedings, not the reply. See, e.g., All Metals Fabricating, Inc. v. Foster Gen. Contracting, Inc., 338 S.W.3d 615, 622 (Tex. App.-Dallas 2011, no pet.) (new grounds for summary judgment asserted in movant's reply brief may not be considered as independent grounds for summary judgment or as an amended motion). The Barnes Parties essentially argue Freedom was required to file a reply to rebut the Barnes Parties' summary judgment evidence. They cite no authority to support that argument, and after a diligent search we have found none. Rule 166a(i) includes no requirement for a movant to file a reply. Instead, the rule requires the trial court to grant the no-evidence motion "unless the respondent produces summary judgment evidence raising a genuine issue of material fact." Tex.R.Civ.P. 166a(i). Although it would be prudent to inform the trial court in a reply that the non-movant movant failed to raise a genuine issue of material fact on specific grounds, the movant is not required to take such action. Indeed, a movant's rebuttal arguments or proof are unnecessary if the non-movant does not produce more than a scintilla of evidence in response to the no-evidence motion. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004) ("If the plaintiffs fail to produce more than a scintilla of evidence under [the Rule 166a(i)] burden, then there is no need to analyze whether [the movant's] proof satisfied the Rule 166a(c) burden."); see also Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 662 (Tex. App.-Houston [14th Dist.] 2012, pet. denied) (noting "there is no need to analyze whether the movant's proof satisfied the Rule 166a(c) burden" if the non-movant fails to meet its Rule 166a(i) burden of proof) (first citing Tex.R.Civ.P. 166a(c), and then citing Ridgway, 135 S.W.3d at 600). Freedom was, thus, within its rights to stand on its motion rather than include rebuttal arguments in its reply concerning the recall-related claims.
Freedom's request for summary judgment on the recall-related theories of negligence and gross negligence was included in the no evidence motion and not specifically abandoned in its reply brief. We overrule the Barnes Parties' first and second appellate issues.
II. Sufficiency of the No-Evidence Motion
Next, the Barnes Parties assert Freedom's no-evidence motion was insufficient as a matter of law because it failed to specify which elements of the negligence claim Freedom was challenging. The elements of actionable negligence are a duty owed to one party by another, a breach of that duty, and damages proximately caused by the breach of that duty. Logsdon v. Cross, No. 05-14-01328-CV, 2016 WL 531513, at *2 (Tex. App.-Dallas Feb. 10, 2016, pet. denied) (mem. op.) (citing Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001)). We sustain this issue as to the element of duty.
Duty is the threshold inquiry in a negligence case, and the existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. JPMorgan Chase Bank, N.A. v. Prof'l Pharmacy II, 508 S.W.3d 391, 417 (Tex. App.-Fort Worth 2014, no pet.) (citing Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). To maintain a negligence cause of action, a plaintiff must establish both the existence and the violation of a duty owed to the plaintiff by the defendant to establish liability in tort. Id. Freedom's no-evidence motion does not specifically address either aspect of duty.
Freedom listed the following "No-Evidence Grounds for Summary Judgment" as to the recall-related facts of the Barnes Parties' negligence and gross negligence claims:
7) As a matter of law, there is no evidence that James Alan Barnes was a purchasing customer of the ATV from Freedom PowerSports, as alleged by Plaintiffs and Intervenor.
8) As a matter of law, there is no evidence that Freedom PowerSports was negligent in any manner with respect to its conduct relating to advice regarding the existence and nature of the safety recall(s) issued for the ATV.
9) As a matter of law, there is no evidence that Freedom PowerSports's conduct with respect to providing or not providing advice about the existence and nature of safety recall(s) issued for the ATV, was a proximate cause of the ranch accident, or a proximate cause of any harm or damages to Plaintiffs or Intervenors.
10) As a matter of law, there is no evidence that any act of omission of Freedom PowerSports was a proximate cause of the ranch accident.
11) As a matter of law, there is no evidence that any act of omission of Freedom PowerSports was a proximate cause of any harm or damages to any Plaintiff or any Intervenor.
12) As a matter of law, there is no evidence to support a finding of gross negligence or exemplary damages against Freedom PowerSports.
13) As a matter of law, there is no evidence to support a finding of underlying negligence, which is a pre-requisite to application of the theory of gross negligence.
14) As a matter of law, there is no evidence to support a finding of malice, which is an additional component and required finding to support application of the theory of gross negligence.
15) As a matter of law, there is no evidence to support a finding of actual conscious indifference, which is yet another additional component and
required finding to support application of the theory of gross negligence.
The grounds asserted in the motion do not specifically list lack of duty as to the recall claim.
A trial court can render summary judgment only on those grounds that are specifically addressed in a motion for summary judgment. Bever Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C., 355 S.W.3d 878, 886-87 (Tex. App.-Dallas 2011, no pet.) (first citing Tex. Integrated Conveyor Sys. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 365 (Tex. App.-Dallas 2009, pet. denied), and then citing Wright v. Sydow, 173 S.W.3d 534, 554 (Tex. App.-Houston [14th Dist.] 2004, pet. denied) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.1993)). To that end, when a defendant moves for summary judgment, he must state specific grounds for relief. Tex.R.Civ.P. 166a(c); McConnell, 858 S.W.2d at 341. "The term 'grounds' means the reasons that entitle the movant to summary judgment, in other words, 'why' the movant should be granted summary judgment." Garza v. CTX Mortg. Co., L.L.C., 285 S.W.3d 919, 923 (Tex. App.-Dallas 2009, no pet.). A movant seeking a no-evidence summary judgment must specifically state which elements of the non-movant's claims lack supporting evidence. Tex.R.Civ.P. 166a(i). The motion "must be specific in challenging the evidentiary support for an element of a claim or defense," and the rule "does not authorize conclusory motions or general no-evidence challenges to an opponent's case." Id. at Comment- 1997. Grounds are sufficiently specific if they give "fair notice" to the nonmovant. Bever Props., 355 S.W.3d at 889 (citing Dear v. City of Irving, 902 S.W.2d 731, 734 (Tex. App.-Austin 1995, writ denied)).
A no-evidence motion that only generally challenges the sufficiency of the non-movant's case and fails to state the specific elements the movant contends lack supporting evidence is fundamentally defective and cannot support summary judgment as a matter of law. Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280, 283 (Tex. App.-Dallas 2013, pet. denied); Roehrs v. FSI Holdings, Inc., 246 S.W.3d 796, 805 (Tex. App.-Dallas 2008, pet. denied). Motions that are insufficient as a matter of law for lack of specificity may be challenged for the first time on appeal. Helm Companies v. Shady Creek Hous. Partners, Ltd., No. 01-05-00743-CV, 2007 WL 2130186, at *6 (Tex. App.-Houston [1st Dist.] July 26, 2007, pet. denied) (citing Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex. App.-San Antonio 2000, pet. denied)); see also McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993).
Here, Freedom specifically listed lack of duty as one basis for granting the no evidence motion as to the theories related to safety netting:
1) As a matter of law, there is no evidence to support the existence of a legal duty on the part of Freedom PowerSports to install or not install door netting on the ATV.
4) As a matter of law, there is no evidence to support the existence of a legal duty on the part of Freedom PowerSports to advise James Alan
Barnes of the need and reasons to install door netting on the ATV install or not install door netting on the ATV.
The grounds asserted as to the recall-related facts include no similar reference to lack of duty. Instead, Freedom stated there is (1) no evidence Alan was a "purchasing customer of the ATV from Freedom," and (2) no evidence Freedom "was negligent in any manner." Neither of those grounds specifically reference duty and did not provide fair notice to the Barnes Parties that Freedom was challenging the element of duty. In its appellate briefing, Freedom further argues it owed no duty to "Appellants besides James Alan Barnes because Freedom never serviced any vehicle belonging to any Appellant other than James Alan Barnes." However, the grounds identified in its no-evidence motion do not refer to this theory or even mention a lack of duty specifically to Mirtha, E.B., or the estate of C.A.B. Reading the no evidence motion provides no notice that Freedom challenged the existence of a duty to any of the Barnes Parties as to the recall-related claims. These duty elements were plainly not addressed.
On appeal, Freedom cites this Court to a statement in the motion's introductory paragraph as proof Freedom specifically challenged the duty element of the recall-related claims. In the opening paragraph, Freedom stated "[T]he motion demonstrates to the court that there is no evidence of facts required to support the imposition of a legal duty upon Defendant for each and all causes of action[.]" That conclusory statement did not provide fair notice to the Barnes Parties that Freedom challenged the existence of a legal duty as a matter of law. Not only is the statement separated by three pages from Freedom's self-titled "No-Evidence Grounds for Summary Judgment," but it, at most, asserts a factual challenge, not a legal challenge. That statement did not provide the Barnes Parties with fair notice Freedom sought summary judgment based on the lack of a legal duty related to the recall.
Had Freedom intended to seek a no-evidence summary judgment as to duty related to the recall, it would have specifically referred to the duty element as it did with its grounds related to the netting allegations. Under this record, we conclude Freedom failed to specifically assert lack of a legal duty as a ground for summary judgment. As a result, the motion was insufficient as a matter of law as to the element of duty. The trial court erred by granting the motion to the extent it did so on the element of duty. We sustain the Barnes Parties' third issue as to the duty element.
The Barnes Parties also contend the no-evidence motion did not specifically assert proximate cause as an element for which Freedom sought summary judgment. We disagree. Grounds nine, ten, and eleven specifically reference proximate cause. Although proximate cause comprises cause in fact and foreseeability, a general reference to proximate cause is sufficient to provide notice that the movant seeks summary judgment on the element of proximate cause. E.g., Yost v. Jered Custom Homes, 399 S.W.3d 653, 660 (Tex. App.-Dallas 2013, no pet.) (allegation there is no evidence the construction of the foundation proximately caused the injuries "did not fail for lack of specificity").
The same is true for the grounds asserted concerning the gross negligence claim. Moreover, Freedom specifically challenged the subjective prong of the gross negligence claim by asserting there is no evidence of conscious indifference. Under this record, we conclude the no-evidence motion sufficiently challenged the elements of proximate cause as to the negligence claim and the elements of malice and conscious indifference as to the gross negligence claim. We overrule the Barnes Parties' third issue as to those elements.
III. Evidence in Support of Proximate Cause and Gross Negligence
In their remaining issue, the Barnes Parties maintain they presented more than a scintilla of evidence to support their recall-related theories of negligence and gross negligence against Freedom. Having concluded the trial court erred by granting the no-evidence motion as to the element of duty, we do not address the sufficiency of the evidence as to that element of the negligence claim. We focus our analysis on the evidence presented by the Barnes Parties on the elements of proximate cause and the gross negligence claims.
A. Proximate cause
The two elements of proximate cause are cause-in-fact and foreseeability. Pediatrics Cool Care v. Thompson, 649 S.W.3d 152, 158 (Tex. 2022) (citing Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018)). A defendant's negligence is the cause-in-fact of a plaintiff's injury if "(1) the negligence was a substantial factor in causing the injury, and (2) without the act or omission, the harm would not have occurred." Id. (quoting Gunn, 554 S.W.3d at 658). Courts refer to these two components as "substantial factor" causation and "but for" causation. Id. The plaintiff need not exclude all possibilities; it is sufficient to prove that the greater probability is that the defendant's conduct, alone or in contribution with others, was the cause of the harm. Wal-Mart Stores Tex., LLC v. Bishop, 553 S.W.3d 648, 664 (Tex. App.-Dallas 2018, pet. granted w.r.m.), aff'd as modified (Sept. 7, 2018) (citing First Assembly of God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 493 (Tex. App.-Dallas 2001, no pet.)). Nor must the defendant's negligence be the sole cause of the injury. Id. (citing Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex. 1992)). The issue is whether there is any evidence from which reasonable minds could draw an inference that the defendant's negligent act caused the plaintiff's injury. Id. "Whether other possible inferences may be drawn from the evidence is not the relevant inquiry." Havner, 825 S.W.2d at 459.
"A plaintiff proves foreseeability of the injury by establishing that 'a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission.'" Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016) (quoting Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 478 (Tex. 1995)). "The question of foreseeability, and proximate cause generally, involves a practical inquiry based on 'common experience applied to human conduct.'" Boys Clubs of Greater Dall., 907 S.W.2d at 478 (quoting City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987) (quoting Cook Consultants, Inc. v. Larson, 700 S.W.2d 231, 236 (Tex. App.-Dallas 1985, writ ref'd n.r.e.))).
Here, the Barnes Parties presented more than a scintilla of evidence to raise a fact issue as to proximate cause on their recall-related negligence claim. Alan testified he would have had the UTV inspected, and the steering coupling repaired had he known of the recall notice. Further, he would not have taken the UTV on the hunting trip without repairing the steering coupling had he known of the recall. Moreover, Alan was prepared to have any additional repairs made to the UTV when he took it to Freedom for service. He instructed Freedom's service advisor to let him know if the service advisor found any additional problems with the UTV so Alan could find a way to have those problems fixed. Freedom concedes this evidence constitutes more than a scintilla of evidence of but-for causation. We agree. However, the Barnes Parties' summary judgment proof went beyond Alan's testimony.
For example, P. Keith Rogers, a licensed professional engineer, provided expert testimony as to proximate cause. In his report and affidavit, Rogers concluded the UTV's steering coupling was faulty, suffered from the defects explained in the recall notice, and "would make the vehicle respond in an unpredictable manner and in a manner other than the driver intends, creating an unsafe vehicle." It is Rogers' opinion that "[a]n unpredictable steering system was likely the cause of the Barnes roll over." Rogers also concluded the repairs mandated in the recall notice would have prevented loss of control of the UTV the night of the accident and, had the UTV been repaired, "this incident could have been prevented, or at the least[.] lessen the likelihood of death and severity of injuries in this incident."
Moreover, the Barnes Parties presented evidence concerning the service advisor's acts and omissions, as well as Freedom's policies and knowledge of the recall. That evidence constituted more than a scintilla of evidence as to both elements of proximate cause. Freedom's corporate representative, Greg Day, confirmed the service advisor pulled the UTV's unit status report and, therefore, saw the open recall on the report. Day also confirmed Freedom received the recall notice within a few days of BRP issuing it in June 2016, and Freedom would have shared the notice with its service managers and service advisors by providing them a copy of the recall notice and then verbally explaining it to them. The recall notice specifically stated the problem with the steering coupling could "result in a loss of steering control and possibly cause injuries or even death." The recall notice further stated the "solution" to that "problem" was replacement of the steering coupling.
The service advisor knew about the recall, knew the risks associated with using the UTV without replacing the steering coupling, and knew the UTV was subject to the recall and had not yet undergone the mandated repair. Yet, the service advisor did not tell Alan about the recall or suggest Alan have the UTV repaired to address the recall. Alan remained ignorant the recall existed, and the UTV remained unrepaired when Alan picked the UTV up and later used it with his children as passengers on the hunting trip. Day's testimony confirmed the service advisor's actions violated Freedom policy to "immediately communicate with the customer that their unit has a recall, so we can perform it for the customer." Day agreed a reasonably prudent servicer or seller, such as Freedom, would have communicated that open recall to Alan. Instead, Freedom did not inform Alan of the recall and performed the "major service" without correcting the recalled defect.
We conclude the Barnes Parties' summary judgment evidence constitutes more than a scintilla of evidence of proximate cause in relation to its negligence claim. The trial court erred by granting the no-evidence motion as to the recall-related negligence claim. We sustain the Barnes Parties' arguments as to this issue.
On appeal, the Barnes Parties argue the summary judgment evidence supported a negligent undertaking claim. They did not plead negligent undertaking below and did not assert negligent undertaking in its opposition to the no-evidence motion. We, therefore, do not consider those arguments and do not pass on the validity or viability of them.
B. Gross Negligence
"Gross negligence consists of both objective and subjective elements." U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). Both elements must be satisfied for a finding of gross negligence to be proper. In re Juniper Ventures of Tex., LLC, 679 S.W.3d 177, 181 (Tex. App.-San Antonio 2023, no pet.) (citing Tex. Civ. Prac. & Rem. Code § 41.001(11)). A party may rely on either direct or circumstantial evidence to prove the elements of gross negligence. Lee Lewis Constr., 70 S.W.3d at 785.
To prevail on a gross negligence claim, plaintiffs must prove by clear and convincing evidence that (1) when viewed objectively from the defendant's standpoint at the time of the event, the 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. Bell Helicopter Textron, Inc. v. Dickson, 601 S.W.3d 1, 5 (Tex. App.- Dallas 2019, no pet.).
Under the objective component, "extreme risk" is not a remote possibility or even a high probability of minor harm, but rather the likelihood of the plaintiff's serious injury. Id. The risk must be examined prospectively from the perspective of the actor, not in hindsight. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008). The subjective prong, in turn, requires that the defendant knew about the risk, but that the defendant's acts or omissions demonstrated indifference to the consequences of its acts. Dickson, 601 S.W.3d at 5 (citing U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012)).
In the no-evidence motion, Freedom specifically challenged only the subjective prong by asserting there was no evidence to support a finding of conscious indifference. Day's testimony alone constitutes more than a scintilla of evidence that Freedom consciously disregarded the safety of the Barnes Parties by (1) failing to communicate the existence of the recall of which Freedom and the service advisor were aware, and (2) failing to repair the recalled parts on the UTV. The recall notice informed Freedom and similar dealers that certain vehicles including the UTV had faulty steering couplings that could cause a steering malfunction and result in injuries or death if not repaired. Freedom knew of the recall and communicated it to its service managers and service advisors, including Lewis. Freedom had policies in place recognizing the extreme degree of risk of failing to notify customers of a recall and failing to repair a recalled vehicle. Those policies included repairing unsold inventory subject to a recall "to make sure that [Freedom was] selling a safe unit to the customer." As for recalled vehicles brought in for service, Freedom required the service advisor to run a unit status report "to check for warranty coverage, as well as open recall[s]" and to notify the customer if the customer's unit is subject to a recall so Freedom "can perform it for the customer."
Freedom also argued there was no evidence of underlying negligence or of malice. We do not address these arguments here because (1) we have concluded the Barnes Parties submitted sufficient evidence as to the underlying negligence, and (2) the Barnes Parties did not seek exemplary damages under a malice theory.
Despite Freedom's policies and Lewis's knowledge of the recall and the potential for injuries and death from an unrepaired steering coupling, Lewis did not tell Alan about the recall or repair the recalled steering coupling. Day admitted that a reasonably prudent seller and servicer of the UTV would have communicated to Alan that there was an open recall. We conclude this evidence was sufficient to defeat the no-evidence motion as to gross negligence. The trial court erred by granting the no-evidence motion on the gross negligence claim.
CONCLUSION
The trial court erred by granting the no-evidence motion as to the Barnes Parties' claims related to the recall. We affirm the summary judgment related to the netting claims because the Barnes Parties presented no evidence to support those claims in response to Freedom's motion and specifically abandoned those claims below. We reverse the trial court's judgment dismissing the Barnes Parties' claims of negligence and gross negligence against Freedom related to the recall and remand to the trial court for further proceedings consistent with this opinion.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part.
We AFFIRM that portion of the trial court's judgment granting the no-evidence motion for summary judgment as to Appellants' abandoned netting claims.
We REVERSE that portion of the trial court's judgment dismissing Appellants' claims of negligence and gross negligence against Appellee related to the recall.
We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellants JAMES ALAN BARNES, INDIVIDUALLY AND NEXT FRIEND OF E.B., A MINOR, AND AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF C.A.B, DECEASED, and MIRTHA BARNES, INDIVIDUALLY AND NEXT FRIEND OF E.B., A MINOR recover their costs of this appeal from appellee FREEDOM POWERSPORTS, L.L.C.