Opinion
NO. 14-18-00921-CV
08-27-2020
LAURA LETICIA ZEPEDA VASQUEZ, Appellant v. LEWIS ENERGY GROUP, LP AND LEWIS PETRO PROPERTIES, INC., Appellees
On Appeal from the 81st District Court La Salle County, Texas
Trial Court Cause No. 14-07-00119-CVL
MEMORANDUM OPINION
Jose Abraham Vasquez suffered fatal injuries after he drove his truck and trailer off the road into a creek bottom. His wife, appellant Laura Leticia Zepeda Vasquez, brought negligence and gross-negligence claims based on wrongful-death and survival causes of action against appellees Lewis Energy Group, LP and Lewis Petro Properties, Inc. (together, "Lewis"). Lewis successfully moved for traditional and no-evidence summary judgment. Vasquez appeals. We affirm.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001-.012 (wrongful death), .021-.022 (survival).
The trial court's order granting Lewis's summary-judgment motion does not contain typical finality language; however, our review of the record indicates that the order disposed of all parties and claims remaining in the case. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex. 2001).
The Supreme Court of Texas ordered the Court of Appeals for the Fourth District of Texas to transfer this case (No. 04-18-006887-CV) to this court. Misc. Docket No. 18-9130 (Tex. Sept. 26, 2018); see Tex. Gov't Code Ann. §§ 73.001, .002. Because of the transfer, we decide the case in accordance with the precedent of the transferor court under principles of stare decisis if our decision otherwise would have been inconsistent with the transferor court's precedent. See Tex. R. App. P. 41.3.
I. BACKGROUND
On August 4, 2012, Jose was driving a tank truck southbound on Krueger Road, a county road in La Salle County. Jose's brother Jesus Vasquez also was driving a tank truck about a mile or mile and a half in front of Jose. They were carrying water loads for their employer. A Lewis Energy tank truck passed Jesus going northbound on Krueger Road. The Lewis truck was "driving too fast" and picking up dust. Jesus stopped after the Lewis truck passed him and saw a cloud of dust behind him. After Jesus went up a hill, he lost sight of Jose. When Jesus realized that Jose was not behind him, he stopped and called Jose's cell phone. Jose did not answer. Jesus learned about the crash when a "rancher hand" pulled up and told him a truck for the same company "was flipped over." Jesus started to reverse his truck; a lady in a pickup gave him a ride to the crash site. Jose was already deceased when the paramedics and law enforcement arrived.
Vasquez filed a wrongful-death and survival suit. She alleged claims of negligence and gross negligence against Lewis. Lewis filed a traditional and no-evidence summary-judgment motion. To their motion, Lewis attached: an affidavit from their trial counsel; the Texas Department of Public Safety (DPS) major crash investigation report; the deposition of Jesus; Vasquez's expert designation of John Jimenez; the deposition of Jimenez; and Vasquez's second amended petition. Vasquez filed a response. To her response, Vasquez attached: an affidavit from Jesus; the DPS report; and Jesus's deposition. The trial court held a hearing and granted Lewis's motion as to all claims of negligence and gross negligence. Vasquez appealed the trial court's final judgment.
Vasquez brought her suit against multiple defendants. However, the trial court dismissed all claims against all the other defendants pursuant to Texas Rule of Civil Procedure 91a, and the Fourth Court of Appeals affirmed. Vasquez v. Legend Nat'l Gas III, LP, 492 S.W.3d 448, 455-56 (Tex. App.—San Antonio 2016, pet. denied); see id. at 458 (Chapa, J., concurring) ("The trial court severed Vasquez's 'negligent driving' cause of action against the Lewis appellees into a new case.").
II. ANALYSIS
A. Standard of review and applicable law
We review de novo the trial court's grant of a motion for summary judgment. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We consider all of the summary-judgment evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). We usually address no-evidence grounds before addressing traditional grounds of a hybrid summary-judgment motion. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the trial court grants a motion for summary judgment without specifying the grounds, then we affirm the judgment if any of the grounds presented are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
The party moving for a traditional summary judgment has the burden to show that no material fact issue exists and that it is entitled to summary judgment as a matter of law. See Tex. R. Civ. P. 166a(c). To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. See Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). In a no-evidence motion for summary judgment, the movant represents that there is no evidence of one or more essential elements of the claims for which the nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). The nonmovant bears the burden to present more than a scintilla of probative evidence raising a genuine issue of material fact as to each element challenged in the motion. See Tamez, 206 S.W.3d at 582; Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003).
The essential elements of negligence are: a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by that breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004). Proximate cause has two components: cause in fact and foreseeability. Doe v. Boys Club of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex. 1995). The essential elements of gross negligence are: (1) viewed objectively from the actor's standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceeds in conscious indifference to the rights, safety, or welfare of others. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001).
In their summary-judgment motion, Lewis provided all the elements of negligence and gross negligence. In the no-evidence part of their motion, Lewis argued that there was no evidence of the negligence elements of proximate cause, duty, and breach of duty. Lewis also argued that there was no evidence of both the objective and subjective elements of gross negligence. In the traditional part, Lewis argued that based on the summary-judgment evidence, they negated the negligence elements of proximate cause, duty, and breach of duty.
In her response to Lewis's no-evidence summary-judgment motion, Vasquez did not produce any evidence concerning (or even address) either challenged element of gross negligence. See Tex. R. Civ. P. 166a(i) ("The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact."). In any event, on appeal Vasquez does not challenge the trial court's granting of the motion for summary judgment on her gross-negligence claims. See Tex. R. App. P. 38.1(f), (i).
On appeal, Vasquez argues that the trial court erred in granting Lewis's summary-judgment motion because Lewis (1) owed a duty to exercise reasonable care and breached its duty and (2) there are numerous fact questions regarding whether Lewis proximately caused Jose's injuries.
B. No evidence of the cause-in-fact element of proximate cause
We first consider Lewis's no-evidence motion and conclude that the cause-in-fact element of proximate cause is dispositive. The test for cause in fact is whether the negligent act was a substantial factor in bringing about the injury, without which the harm would not have occurred. Doe, 907 S.W.2d at 477. Cause in fact is not shown if the defendant's negligence merely provided a condition that made the injury possible. Id. Rather, the evidence must go further and show that the negligence was the proximate, and not the remote, cause of the resulting injuries and justify the conclusion that the injury was the natural and probable result of the negligence. Id. Even if the injury would not have occurred "but for" the defendant's conduct, the connection between the defendant and the plaintiff's injuries may be too attenuated to constitute legal cause. Id. In addition, cause in fact "cannot be established by mere conjecture, guess, or speculation." Id.
In an attempt to meet her burden to raise a fact issue on cause in fact, Vasquez pointed to statements in the DPS report that Jose "had impaired visibility from the heavy cloud of dirt from traffic traveling on the same dirt road" and "was blinded by the fine dirt/dust being lifted by the other traffic and was unable to see a creek bridge ahead." Vasquez referred to Jesus as "an eyewitness to the accident." Vasquez pointed to Jesus's affidavit and deposition testimony that he was driving slow enough to not pick up dust; he had to stop his truck because of the dust from the Lewis truck; and the dust cloud caused him to lose sight of Jose.
In the evidence section of their summary-judgment motion, Lewis pointed out that in the DPS report, "there is no mention anywhere in the investigation that a Lewis vehicle was on the road." The DPS report expressly stated: "Cause of the crash is still unknown." According to Lewis, any suggestion in the DPS report that dust may have contributed to the accident came from Jesus, who did not witness the accident and only subsequently arrived at the scene.
Lewis further pointed to Jesus's deposition testimony that "to be honest" he really could not say whether Jose crashed because the Lewis truck picked up dust:
I wasn't there. Like I said, I wasn't driving with him; so I can't say if it was or wasn't. My brother was usually, at the time, always tired. I don't know if he would stay up late or not. I don't know if that was another ordeal or—or—or cause. I really can't say, to be honest with you, but he was always tired; so I don't know if it was an actual accident or it was an accident upon himself that he was tired. So I can't really say.Jesus also testified: "I really can't say if it was based on the Lewis Energy picking up the dust, or, you know, maybe my brother was tired. Who knows?" Jesus further stated: "I was already up on the hill; so I couldn't see if it was the dust or not. I didn't have no [sic] vision, because I was already up on a hill. . . . I couldn't see nothing [sic] back because I was already up on the hill." Nor could Jesus say how fast the Lewis truck was going when it passed Jose.
Finally, Lewis pointed to deposition testimony from Vasquez's designated expert Jimenez agreeing there was no evidence in the DPS report that any witness indicated Jose left the road because of dusty conditions and agreeing Jesus did not testify that Jose left the road because of visibility issues. Nor could Jimenez testify that there was any evidence: a Lewis truck driver was driving recklessly when he passed Jose; a Lewis truck created visibility issues for Jose; or the actions of a Lewis driver caused Jose to slow down and move to the right. Jimenez also had not ruled out that Jose lost control of his truck for reasons unrelated to visibility. In sum, Jimenez could not testify that a Lewis truck caused or contributed to the crash.
In particular, with regard to proximate cause, Lewis argued in their motion that Vasquez could not speculate or stack inferences and that "[a] finding of causation here would necessarily be based on 'mere conjecture, guess, or speculation.'" On appeal, Vasquez argues that "[t]here is no stacking of inferences and there is nothing speculative about the cause of death of Jose Vasquez." In their response, Lewis argues that "[t]here is no evidence that . . . Lewis's operation of a vehicle proximately caused Jose's accident."
Regardless of whether proving proximate cause in this case would require expert testimony or accident reconstruction, we conclude that Vasquez did not raise a genuine fact issue. The DPS report is not evidence that negligent driving of a Lewis truck was a cause in fact of the accident. The reporting officer did not observe the accident; he arrived at the crash site more than half an hour after he was dispatched. The DPS report does not provide any objective details about any vehicle except Jose's truck. In addition, the report was not based on any eyewitness testimony and stated that the cause of the crash was still unknown. At best, the DPS report amounts to mere guesswork or conjecture that dust or visibility may have been a possible factor in the crash.
Depending on complexity, opinion testimony by an accident-reconstruction expert may be required to show causation. Compare Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 893-94 (Tex. App.—Texarkana 2004, pet. denied), with Lopez-Juarez v. Kelly, 348 S.W.3d 10, 19 & n.13 (Tex. App.—Texarkana 2011, pet. denied). We also note that, as a general rule, just because a peace officer investigates an accident does not mean he or she is qualified as an expert; rather, officers can render an expert opinion on accident reconstruction when they are trained in the science and sufficiently knowledgeable. See Walker v. Rangel, No. 14-08-00643-CV, 2009 WL 4342505, at *3 (Tex. App.—Houston [14th Dist.] Dec. 3, 2009, no pet.) (mem. op.) (citing Pilgrim's Pride, 134 S.W.3d at 891).
As indicated, we disagree with Vasquez's characterization of Jesus as an eyewitness. Jesus's testimony instead revealed that he did not witness Jose's crash. Jesus stated as far as he knew, there were no witnesses to the accident. Jesus testified that he did not see what happened to Jose, did not know how fast the Lewis truck was going when it passed Jose, and did not know whether dust from the Lewis truck was a cause of the crash. Jesus further agreed that he had "no idea" why Jose had the accident and did not know if the accident occurred before or after the Lewis truck passed Jose. In addition, if expert testimony were required in this case, Vasquez's designated expert Jimenez who reviewed the DPS report and Jesus's testimony could not attribute the crash to dust from the Lewis truck.
Viewing the summary-judgment evidence in the light most favorable to Vasquez, it does not raise more than a scintilla of probative evidence and thus constitutes no legal evidence of a substantial causal connection between any actions of Lewis and Jose's crash. We therefore conclude that the trial court properly could have granted the motion for summary judgment in favor of Lewis on all Vasquez's negligence claims based on the cause-in-fact element of proximate cause. We overrule Vasquez's second issue.
See supra note 5.
Because we must affirm the judgment if any ground is meritorious, we do not address Vasquez's first issue regarding the negligence elements of duty and breach. See Tex. R. App. P. 47.1; Carr, 776 S.W.2d at 569.
III. CONCLUSION
Accordingly, we affirm the trial court's judgment.
/s/ Charles A. Spain
Justice Panel consists of Justices Zimmerer, Spain, and Hassan.