Opinion
No. 07-19-00274-CV
08-20-2020
ANATONIA FLORES, APPELLANT v. JERRY RECTOR, APPELLEE
On Appeal from the 47th District Court Randall County, Texas
Trial Court No. 74,241-A; Honorable Dan L. Schaap, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Appellant, Anatonia Flores, appeals the trial court's rendition of summary judgment in favor of Appellee, Jerry Rector on her negligence claim arising out of an automobile accident that occurred in Randall County on July 15, 2016. Flores contends she sustained head injuries in the accident and that the accident was proximately caused by Rector's negligence. Through one issue, Flores contends the trial court erred in granting Rector's no-evidence and traditional motion for summary judgment because the record shows a fact issue exists on the challenged elements of her claim. We affirm the judgment of the trial court.
The trial court entered separate orders granting the summary judgment motion as to both Jerry Rector and his wife, Shelley Rector. While Flores filed a general notice of appeal identifying the "judgment entered on July 1, 2019," (the order as to Jerry Rector reflects that it was signed and filed July 1, 2019; whereas the order as to Shelley Rector reflects that it was signed on June 28, 2019, but not filed until July 1, 2019") she presents no argument with respect to the summary judgment granted in favor of Shelley Rector. We conclude that no appeal has been perfected as to the order granting summary judgment in favor of Shelley Rector.
BACKGROUND
During the evening hours of July 15, 2016, Rector was driving with his wife along South Loop 335 in Amarillo, Texas. He was traveling at the posted speed limit of seventy miles per hour in the inside lane of Loop 335. At the time, he was using his cruise control in order to maintain a consistent speed. As he approached the intersection of South Loop 335 and FM 2530, he observed a vehicle, later determined to be driven by Flores, stopped at the stop sign on FM 2530. Rector also noticed a white pickup truck being driven in the outside lane of South Loop 335 (to his right) just ahead of his vehicle and a vehicle traveling in the inside lane a short distance behind him. As Rector continued on South Loop 335, Flores pulled into the intersection in front of Rector's vehicle. Both Rector and his wife stated there was a very short period of time, maybe a "split second," before Rector's vehicle collided with the Flores vehicle. Rector could not recall whether he applied his brakes prior to the collision because it happened "so fast."
A Texas Department of Public Safety trooper responded to the collision. After speaking with the involved parties and an unrelated witness, the trooper determined that Flores was "attempting to turn northbound onto SL 335 and failed to yield right of way at the stop intersection." The trooper issued Flores a citation for "failure to yield at stop intersection." Flores later pleaded guilty to the citation.
Flores subsequently filed suit against Rector, alleging he was negligent in (1) failing to keep such lookout as a person of ordinary prudence would have kept under the same or similar circumstances, (2) failing to maintain the degree of attentiveness a person of ordinary prudence would have under the same or similar circumstances, (3) failing to apply the brakes to his vehicle in order to avoid the collision in question, (4) failing to timely apply his brakes, (5) failing to attempt evasive action, and (6) driving at an excessive speed.
After filing a general denial and an affirmative claim that Flores's claim was barred in whole or in part by her own negligence, Rector filed a hybrid motion for summary judgment on both traditional and no-evidence grounds alleging there was no evidence Rector had breached a duty owed to Flores, or that any breach proximately caused Flores's injuries. In support of his motion, Rector included his unsworn declaration, his wife's unsworn declaration, the responding trooper's unsworn declaration, the trooper's crash report, the voluntary statement of a third-party witness to the collision, and a certified copy of Flores's failure-to-yield-at-stop-intersection ticket disposition indicating she pleaded guilty.
Specifically, Rector alleged there was no evidence he breached a duty to (1) keep a proper lookout, (2) maintain a reasonable degree of attentiveness, (3) timely apply his brakes to avoid the collision, (4) apply his brakes to avoid the collision, (5) attempt evasive action, (6) drive at a safe speed, and (7) not operate a vehicle under the influence of alcohol.
An unsworn declaration is not an "affidavit" as called for by Rule 166a(f). See TEX. R. CIV. P. 166a(f) (providing that supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall affirmatively show that the affiant is competent to testify to the matters stated therein). See TEX. GOV'T CODE ANN. § 312.011 (West 2013) (defining an affidavit as "a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office"). That being said, an unsworn declaration may be used in lieu of a written sworn affidavit required by Rule 166a(f) so long as the declaration is (1) in writing and (2) subscribed by the person making the declaration as true under penalty of perjury. See TEX. CIV. PRAC. & REM CODE ANN. § 132.001 (West 2019).
Flores responded to Rector's motion by alleging a fact question had been raised as to whether Rector was operating his vehicle while under the influence of alcohol, a factor she believed impaired his ability to reasonably foresee the risk of other traffic, or to take appropriate evasive action by taking his vehicle off cruise control, slowing down, changing lanes, or timely applying his brakes. In support of her response, Flores included excerpts from Rector's deposition and a recording of a 9-1-1 call made the evening of the collision. Prior to ruling on Rector's motion for summary judgment, the trial court excluded the recording of the 9-1-1 call.
Upon consideration of Rector's hybrid motion for summary judgment, the trial court granted the motion and entered an order dismissing Flores's claims with prejudice. The order did not specify whether the trial court was granting the traditional motion, the no-evidence motion, or both; nor did it specify the grounds upon which the trial court was granting the relief requested. This appeal followed.
GENERAL PRINCIPLES OF SUMMARY JUDGMENT REVIEW
We review a trial court's ruling on a summary judgment motion under a de novo standard of review. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Valence Operating, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215. "When a trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious." B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276, 281, n.3 (Tex. 2017) (quoting Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989)).
A party seeking summary judgment can move for both a traditional and no-evidence summary judgment in the same or separate motions. See TEX. R. CIV. P. 166a(c), (i). Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004). Further, when a party has filed both a traditional and no-evidence motion for summary judgment we typically review the no-evidence summary judgment first. Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017) (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). This is so because, if the non-movant fails to produce more than a scintilla of evidence on the challenged essential element or elements, then there is no need to analyze the movant's traditional grounds for summary judgment because no greater relief could be granted. Ridgway, 135 S.W.3d at 600.
STANDARD OF REVIEW—NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
After an adequate time for discovery, a party may move for summary judgment on the basis that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006). A no-evidence motion for summary judgment is essentially a motion for a pretrial directed verdict. Accordingly, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we would apply in reviewing a directed verdict. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003) (citations omitted). As such, we review the summary judgment evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. at 751 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
A no-evidence motion for summary judgment must state the essential element or elements as to which the movant claims there is no evidence. TEX. R. CIV. P. 166a(i). Once the movant's burden is met, the burden shifts to the non-movant to produce summary judgment evidence raising an issue of material fact as to the challenged element or elements of its cause of action. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). Therefore, when a proper no-evidence motion for summary judgment has been filed, the trial court must grant the motion unless the record contains more than a scintilla of competent summary judgment evidence raising a genuine issue of material fact on the challenged elements. See Hamilton, 249 S.W.3d at 426. However, the non-moving party is not required to marshal its entire proof, and its response need only point out evidence that raises a fact issue on the challenged essential elements. TEX. R. CIV. P. 166a(i), Notes and Comments (1997); Hamilton, 249 S.W.3d at 426.
We review a no-evidence summary judgment for competent summary judgment evidence or undisputed facts that would enable reasonable and fair-minded jurors to differ in their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Given those standards, a no-evidence motion for summary judgment 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 scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. King Ranch, Inc., 118 S.W.3d at 751.
A fact issue exists if there is more than a scintilla of probative evidence to raise a genuine issue of material fact. Id.; Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." King Ranch, Inc., 118 S.W.3d at 751 (quoting Merrell Dow Pharms., 953 S.W.2d at 711). Conversely, less than a scintilla of evidence exists when the evidence is "so weak as to do no more that create a surmise or suspicion" of fact. Id. (quoting Kindred v. Con/Chem., Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
STANDARD OF REVIEW—TRADITIONAL MOTION FOR SUMMARY JUDGMENT
To prevail on a traditional motion for summary judgment the movant must "show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law . . . ." TEX. R. CIV. P. 166a(c); Cmty. Health Sys. Pro'l Servs. Corp., 525 S.W.3d at 681 (citing Provident Life, 128 S.W.3d at 216); Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017)). A fact is conclusively established if reasonable minds could not differ about the conclusion to be drawn from the record. City of Keller, 168 S.W.3d at 816.
ANALYSIS
Here, Flores's cause of action is based on a claim of negligence. To prevail on her claim, Flores was required to prove three essential elements: (1) a legal duty owed by Rector, (2) Rector's breach of that duty, and (3) damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002) (citations omitted). The "existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question." Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) (citation omitted). In determining whether a defendant owes a duty to a plaintiff, the trial court may consider several factors. Id. Those factors include "the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant." Id. (citation omitted). Foreseeability is "the foremost and dominant consideration." Id. (citation omitted).
Here, Rector's no-evidence motion for summary judgment does not contest the existence of the various duties one driver owes to the driver of another vehicle in the context of a motor vehicle collision. Instead, his no-evidence motion for summary judgment contends there is no evidence as to the remaining two essential elements of Flores's negligence cause of action: (1) breach of a duty and (2) proximate cause. In response, Flores contends the circumstances of the accident itself (the location of the collision in the road and the location of the impact to her vehicle) and the fact Rector had consumed alcohol in the hours preceding the collision amount to more than a scintilla of probative evidence raising a genuine issue of material fact, thereby precluding the entry of a no-evidence summary judgment.
BREACH OF A DUTY
The mere fact that an accident has occurred is not of itself evidence of negligence. Trejo v. Laredo Nat'l Bank, 185 S.W.3d 43, 48 (Tex. App.—San Antonio 2005, no pet.). Therefore, in this case, the mere undisputed fact that a collision occurred is no evidence of a breach by Rector of any duty owed to Flores. Similarly, under the undisputed facts of this case, neither the location where the collision occurred in relationship to the roadway itself, nor where Rector's vehicle impacted the Flores vehicle, sheds any light on the question of whether Rector breached a duty to keep a proper lookout, timely apply his brakes, take evasive action, or maintain a safe speed because it totally ignores the fact that Flores failed to reasonably yield the right of way when she drove her vehicle in front of Rector's vehicle. As such, an attribution of negligence to Rector would amount to mere speculation and conjecture. Although the possibility of other factors does not have to be completely eliminated, something more than mere speculation, conjecture, and inuendo must point to Rector as the cause of the collision. Without more, Flores's summary judgment evidence of a breach falls short of raising a scintilla of evidence because it is "so weak as to do no more than create a surmise or suspicion" of fact. King Ranch, Inc., 118 S.W.3d at 751 (quoting Kindred, 650 S.W.2d at 63).
While the mere fact that an accident occurred is not sufficient to raise an issue on the question of Rector's breach of a duty, Flores additionally points to deposition testimony that indicates Rector had consumed alcohol (two beers while eating) before climbing behind the wheel of his vehicle. Here, the unsworn declaration of the trooper indicated that the accident occurred at approximately 9:20 p.m.; however, there is no summary judgment evidence establishing when Rector actually consumed that alcohol. More significant, however, is the fact that there is no summary judgment evidence concerning what impact, if any, the consumption of two beers during some unknown time frame had or would have had on Rector. There is no evidence that it impaired his vision, motor-control, or thought process and there is no evidence that it contributed in any way to the collision. Again, this evidence is so weak as to do nothing more than raise a mere suspicion of a breach. As such, any finding of negligence based on these facts would amount to nothing more than conjecture or surmise. Because the summary judgment evidence offered to prove the breach of a duty is less than a scintilla of probative evidence, the trial court did not err in granting Rector's no-evidence motion for summary judgment.
PROXIMATE CAUSE
Furthermore, the summary judgment evidence offered to support a finding of proximate cause is likewise insufficient to rise to the level of a scintilla of probative evidence. There are two elements to proximate cause and those elements are (1) cause in fact and (2) foreseeability. Rodriguez v. Moerfe, 963 S.W.2d 808, 818 (Tex. App.—San Antonio 1998, pet. denied). Cause in fact is not shown if the defendant's negligence did no more than furnish a condition that made the injury possible. Id. (citation omitted). "Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others, and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen." Id. (citations omitted). Foreseeability does not require that the actor anticipate the particular accident or the precise manner in which injury will occur once he has created a dangerous situation through his negligence. Id. (citations omitted). If, however, foreseeability involves the resolution of disputed facts or inferences, legal resolution would be inappropriate. Id. (citations omitted). Proximate cause is "generally a question of fact for jury determination" but "may, under limited circumstances, be a question of law where the evidence is without material dispute and where only one reasonable inference may be drawn therefrom." Id. at 818-19 (citations omitted).
Contrary to Flores's argument on appeal, Rector argues Flores's conduct, not his own conduct, was the sole proximate cause of the collision. The undisputed evidence showed she was stopped at the stop sign on FM 2530. She pulled her vehicle into the intersection in front of Rector, most likely presuming that the vehicle in front of Rector in the outside lane was the only vehicle traveling on South Loop 335 at the time, leaving Rector very little time to react in an attempt to avoid the collision. In her statement, the trooper said Flores failed to yield right of way and cited her for that failure. Flores did not dispute that citation and later pleaded guilty. Thus, Rector argues, the evidence shows Flores, not Rector, was the sole proximate cause of the collision and her resulting injuries. This argument, however, is insufficient to support a no-evidence summary judgment because the question of whether Flores was the sole proximate cause of the accident is a defensive issue upon which Rector, not Flores, would have had the burden of proof at trial.
Even so, the question still exists as to whether Flores has raised sufficient summary judgment evidence to raise an issue of material fact as to the challenged essential element of proximate cause. Again, Flores contends that the facts of the collision alone raise fact issues that should preclude summary judgment. She points first to the location of the collision which occurred in the middle of the inside lane of Loop 335. She notes Rector's statements that he was traveling seventy miles per hour and saw Flores's vehicle move from a stop when he was less than 100 feet from the point of the collision. She argues that at seventy miles per hour, a vehicle is traveling 102.667 feet per second. Based on these "facts," because Rector contends Flores's vehicle moved from a complete stop to a position in front of his vehicle in the outside lane, in the time period from when he first noticed her until the moment of impact (approximately one second), mathematics would indicate that her vehicle would have had to accelerate from zero and maintained a "speed between 32 and 16 miles per hour in the first one or one half second from a full stop." This, Flores contends, is a mechanical impossibility given the fact that Flores's vehicle was only a Volkswagen Jetta.
While these physical facts may raise fact questions including (1) whether Flores accelerated in that manner, (2) whether her vehicle was capable of that kind of acceleration, (3) whether Rector was mistaken regarding his perception of distance, (4) whether he was mistaken as to his speed, (5) whether he was maintaining a proper lookout, (6) whether he had time to apply his brakes, and (7) whether he could have taken other evasive action to avoid the collision, that is all they raise—questions. As such, this arguable inconsistency does nothing more than raise rank speculation as to the proximate cause of Flores's injuries. Nothing about those facts tends to raise a scintilla of evidence showing Rector to be the proximate cause of the accident and her injuries. Herring v. Haydon, No. 07-08-0360-CV, 2009 Tex. App. LEXIS 3374, at *7 (Tex. App.—Amarillo May 13, 2009, no pet.) (mem. op.) ("[p]roximate cause cannot be established by speculation, conjecture, or mere guess work"). Furthermore, there is no evidence that Rector could have foreseen that Flores would pull out in front of him as he was approaching the intersection where she was stopped. Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 198 (Tex. App.—Amarillo 1999, pet. denied). At the time of the collision, Rector was traveling in his lane, at the posted speed, aware of the roadway and surrounding vehicles, and otherwise acting in the manner of a reasonably prudent driver. Therefore, after reviewing the record under the requisite standards, we find the summary judgment evidence shows a lack of evidence of the proximate cause element of Flores's claims.
Accordingly, we find the trial court did not err in granting Rector's no-evidence motion for summary judgment. In light of that finding, we pretermit a review of the trial court's judgment based on Rector's traditional motion for summary judgment. See TEX. R. APP. P. 47.1. Flores's issue is overruled.
CONCLUSION
The judgment of the trial court is affirmed.
Patrick A. Pirtle
Justice Quinn, C.J., concurring in the result.