Opinion
No. 14-06-00928-CV
Opinion filed August 9, 2007.
On Appeal from the 113th District Court Harris County, Texas, Trial Court Cause No. 2005-31730.
Panel consists of Chief Justice HEDGES and Justices HUDSON and GUZMAN.
MEMORANDUM OPINION
Appellant, Noah Eugene Hendrixson, appeals the granting of a no-evidence summary judgment motion in favor of U-Haul Company of Houston on his negligence and negligent misrepresentation claims. In his sole issue, Hendrixson claims the trial court erred in granting summary judgment because there are genuine issues of material fact as to both claims. We reverse the judgment of the trial court and remand for further proceedings.
Background
Noah Hendrixson contacted U-Haul to rent a truck for transporting a wrestling ring. Based on the size descriptions given by Hendrixson, the salesman told him the truck would be able to handle the ring. When Hendrixson picked up the truck, the salesman told him the truck was "ready to go." Hendrixson signed the appropriate paperwork, including an agreement that required the customer to inspect the equipment periodically and a program for additional insurance coverage on the truck. Hendrixson drove the truck to his residence and parked it in the driveway. After making a visual inspection of the engine compartment and exterior of the truck, he crawled underneath the truck to check for leaks from the oil and transmission reservoirs. While under the truck, the parking brake failed, and the truck rolled over Hendrixson, causing him serious injury.
Hendrixson alleges U-Haul was negligent by not properly maintaining the parking brake on the truck. Additionally, he contends U-Haul negligently misrepresented that the truck was "ready to go," and that his reliance on the statement resulted in his injury. U-Haul filed a motion for a no-evidence summary judgment contending that Hendrixson could produce no evidence to raise a genuine issue of material fact with regard to the elements of duty, breach of duty, and causation with regards to his negligence claim, or the reliance element of his negligent misrepresentation claim. In support of his response, Hendrixson submitted his deposition, and the depositions of U-Haul representative Richard Holland and expert Thomas Grubbs. The trial court granted the no-evidence summary judgment motion in favor of U-Haul.
Standard of Review
In reviewing a no-evidence summary judgment, we ascertain whether the nonmovant produced summary judgment evidence of such probative force as to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 206B08 (Tex. 2002). A no-evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence raising a genuine issue of material fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). The evidence amounts to more than a mere scintilla when it "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Our review is de novo, taking the evidence in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Id. When, as here, the trial court's order does not specify the grounds upon which it relied, we must affirm if any ground is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
Negligence
The elements of a negligence cause of action are duty, breach of duty, and damages proximately caused by the breach of duty. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). When analyzing a negligence claim, the threshold inquiry is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). U-Haul contends that it does not have a duty to provide a safe working environment for Hendrixson and that it did not assume a duty by giving Hendrixson permission to undertake repairs on the truck. U-Haul further alleges it was not foreseeable that Hendrixson would crawl under the truck to inspect it.
The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence. Greater Houston Transp., Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). In determining if there is a duty, the court will consider several factors including the risk, foreseeability, 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. Foreseeability is the dominant consideration. Id. Foreseeability requires more than someone looking at the facts and postulating an extraordinary sequence of events whereby the injury results from the defendant's conduct. Green v. GS Roofing Prods. Co., 928 S.W.2d 265, 268 (Tex.App.CHouston [14th Dist.] 1996, no writ).
The attendant standard of conduct may be determined by statute. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985). Under the Texas Transportation Code, a vehicle of the type rented by U-Haul is required to have parking brakes adequate to hold a vehicle on any grade on which the vehicle is operated and under all loading conditions. TEX. TRANSP. CODE ANN. § 547.404(a)(1)B(2) (Vernon 1999). The trucks U-Haul leases are required to have an operational parking brake. Therefore, the statute serves as a guideline for minimum conduct by U-Haul when renting its trucks.
Reviewing the evidence in the light most favorable to Hendrixson, we find more than a scintilla of evidence to support the duty and breach prongs of negligence. The parking brake on Hendrixson's rental truck failed. This fell below the standard of conduct required of U-Haul. The risk and burden of imposing the duty on U-Haul is slight because U-Haul is the party responsible for maintenance on the trucks. There is little consequence of placing the burden on U-Haul because of the existing Transportation Code requirement.
Moreover, it is not unreasonable to assume when a person rents a truck, he expects the truck to be safe and well-maintained with working brakes. Even U-Haul's own representative, Richard Holland, stated that he would want a safely maintained truck to rent as a customer and it would not surprise him if U-Haul customers wanted to rent a properly maintained truck. U-Haul, therefore, had a duty to Hendrixson to provide a safe truck and breached its duty by failing to provide Hendrixson a truck with a functional parking brake.
Proximate cause requires proof of cause-in-fact and foreseeability. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). These elements cannot be established by mere conjecture, guess, or speculation. Id. Cause-in-fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, harm would not have occurred. Id. If the defendant's negligence merely furnished a condition that made the injuries possible, there can be no cause-in-fact. Id. Similarly, even if the injury would not have occurred but for the defendant's conduct, it may be too attenuated from the resulting injuries to be a substantial factor in bringing about the harm. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004).
U-Haul contends that it played no role in Hendrixson's climbing under the truck and, it had no control over his actions. Furthermore, U-Haul claims the connection between the renting of the truck and Hendrixson crawling under it was too attenuated. See Pinkerton's v. Manriquez, 964 S.W.2d 39 (Tex.App.CHouston [14th Dist.] 1997, pet. denied) (holding that merely providing a condition for the injury is not a substantial factor or cause-in-fact). In Pinkerton's, Manriquez, a building maintenance employee, was injured when he was ordered by an employee of Pinkerton's, the on-site security provider, to help move a car that was blocking a ramp. Id at 42. The car owner and Manriquez decided to push the stalled car up the ramp. Id at 43. The car rolled backwards and injured Manriquez. Id. U-Haul claims this situation is analogous to Pinkerton's because the faulty parking brake merely provided a condition for the injury and was not a substantial factor as to the injury. However, U-Haul had a role in Hendrixson's presence under the truck because, according to its own contract, it required customers to inspect the truck.
Clause Nine of U-Haul's contract clearly states that a "[c]ustomer promises to inspect the equipment periodically and not operate the equipment when oil pressure/level is low or when any defect in the operation of the equipment has been noticed." Moreover, the contract for the additional insurance coverage Hendrixson purchased on the truck stated "[d]amage that results from the failure to comply with the terms of the rental contract" is not covered. If the wording of a contract is unambiguous, the court will construe it as a matter of law. Enterprise Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004). U-Haul contends it did not instruct Hendrixson on how to inspect the truck. This lack of control over Hendrixson's actions does not eliminate causation. Hendrixson was fulfilling his contractual obligations to U-Haul. Thus, one can envision Hendrixson's performing his inspection of the truck and being injured by the parking brake failure. The parking brake failure, therefore, was a substantial factor in Hendrixson's injuries and is the cause-in-fact.
To establish the parking brake was the proximate cause of his injuries, Hendrixson must establish the injury was foreseeable. Foreseeability in determining proximate cause, as opposed to duty, is generally a question of fact. McIntosh v. NationsBank, 963 S.W.2d 545, 548 n. 10 (Tex.App.CHouston [14th Dist.] 1997, pet. denied). Although generally a question of fact, foreseeability might become a question of law when the evidence is without material dispute and where only one reasonable inference may be drawn. Ambrosio v. Carter's Shooting Center, Inc., 20 S.W.3d 262, 266 (Tex.App.CHouston [14th Dist.] 2000, pet. denied). As was the case with foreseeability when determining duty, it requires more than someone looking at the facts and postulating an extraordinary sequence of events whereby the injury results from the defendant's conduct. Green, 928 S.W.2d at 268. U-Haul contends that reasonable minds could not differ on the evidence presented, and that foreseeability is lacking as a matter of law.
Foreseeability requires that a person of ordinary intelligence would have anticipated the danger created by a negligent act or omission, although it is not required that such a person would anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence. Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998). Thus, at the time Hendrixson rented the truck, U-Haul did not have to specifically foresee that Hendrixson would crawl under the truck to complete the inspection. U-Haul only had to anticipate the danger, which in this case would be an injury sustained by a person due to the failure of the parking brake. It does not require theorizing an extraordinary sequence of events to conclude it is foreseeable that a person could be injured by a truck that would roll after the parking brake failed.
U-haul's contractual requirements make it reasonable to find that Hendrixson's actions were foreseeable. Hendrixson's methods of inspection were based on methods he acquired while working in the moving industry. One method of searching for leaks would be to crawl under the vehicle. U-Haul had a duty to maintain the parking brakes, and we find reasonable minds could differ on the evidence regarding whether Hendrixson's injury was forseeable and the breach of U-Haul's duty was a proximate cause of appellant's injury.
Negligent Misrepresentation
We turn now to the issue of negligent misrepresentation and Hendrixson's alleged reliance on the statement made by the U-Haul salesman. The elements of a negligent misrepresentation claim are: (1) the defendant's making a representation in the course of its business, or in a transaction in which it has a pecuniary interest; (2) the defendant's supplying "false information" for the guidance of others in their business; (3) the defendant's failing to exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff's suffering pecuniary loss by justifiably relying on the representation. Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.CHouston [14th Dist.] 1999, pet. denied). Under the Texas Rules of Civil Procedure, a no-evidence summary judgment motion must state the elements as to which there is no evidence. TEX. R. CIV. P. 166a(i). U-Haul maintained that Hendrixson did not rely on the statement of its employee. Therefore, reliance is the only element challenged in the motion.
The plaintiff's reliance must be reasonable and justified. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 436 (Tex. 1997). Hendrixson testified he did not inspect the truck on-site because the U-Haul salesman told him that it was "ready to go." Hendrixson contends the inspection of the truck in his driveway fulfilled his contractual obligation. The fact Hendrixson drove away after being told the truck was "ready to go," and his stating in his affidavit that he relied on the statement, may be construed as some evidence of reliance, raising a material fact issue.
After reviewing the summary judgment evidence, we find there is a genuine issue of material fact concerning the claims advanced by Hendrixson and, thus, summary judgment is inappropriate. Accordingly, we sustain Hendrixson's point of error and reverse the judgment of the trial court and remand for further proceedings.