EDWARD BUJNOCH, JUDY BUJNOCH, JOSE C. AGUILLON, AS NEXT FRIEND OF TINLEY BUJNOCH AGUILLON, A MINOR CHILD AND MONICA JANSSEN, AS DEPENDENT ADMINISTRATRIX OF THE ESTATE OF AMANDA LAUREN BUJNOCH, DECEASED, Appellants
NATIONAL OILWELL VARCO, L.P., Appellee
Appeal from the 113th District Court Harris County, Texas
Trial Court Cause No. 2012-71172
consists of Chief Justice Frost and Justices Christopher and
Bujnoch was a passenger in a vehicle that slid off the
roadway and rolled over after the vehicle encountered some
oil-based mud cuttings. Amanda was ejected from the vehicle
and killed. National Oilwell Varco, L.P (NOV) had loaded the
mud into an open-top dump trailer that was operated by an
independent trucking company (Big Red). Neither Big Red nor
NOV ensured that the truckload of mud had been secured before
the truck departed the drill site. Appellants-Amanda's
parents, the next friend of Amanda's minor daughter, and
the administrator of Amanda's estate-sued NOV and others
for negligence and other claims.
filed a traditional motion for summary judgment, contending
that it owed no duty to Amanda as a matter of law because:
Big Red had a non-delegable duty to secure the load under
federal and state regulations; NOV's internal policies
did not create a duty to secure the load of an independent
contractor; and it was not foreseeable that Big Red would act
in a negligent manner. The trial court granted the motion.
reverse the trial court's judgment on Appellants'
negligence claim and remand for further proceedings.
Preservation of Error Is Not Required
NOV asks this court to affirm because Appellants have failed
to preserve error for all of their issues on appeal by not
raising them in the trial court. We hold that Appellants are
challenging the motion as insufficient as a matter of law to
support summary judgment, for which no error preservation is
required. See City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678 (Tex. 1979).
general rule is that a non-movant must expressly present to
the trial court any reasons seeking to avoid the movant's
entitlement to summary judgment, such as those set out in
Rules 93 and 94 of the Texas Rules of Civil Procedure.
See id.; see also McConnell v. Southside Indep.
Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). However,
the party moving for a traditional summary judgment has the
initial burden to submit sufficient evidence that establishes
(1) there is no genuine issue as to any material fact and (2)
the movant is entitled to judgment as a matter of law.
Amedisys, Inc. v. Kingwood Home Health Care, LLC,
437 S.W.3d 507, 511 (Tex. 2014). If the movant never meets
this burden, the burden never shifts to the non-movant, and
the non-movant need not respond or present any evidence.
Id. Summary judgments must stand or fall on their
own merits. Id. A trial court may not grant summary
judgment by default. Id. at 512.
a non-movant may not urge on appeal "any and every
new ground that he can think of, " a non-movant
need not preserve a contention that grounds presented in the
motion are "insufficient as a matter of law to
support summary judgment." Clear Creek, 589
S.W.2d at 678; see also Amedisys, 437 S.W.3d at 512
("Thus, a non-movant who fails to raise any issues in
response to a summary judgment motion may still challenge, on
appeal, the legal sufficiency of the grounds presented by the
movant." (quotation omitted)). For example, in
Amedisys the trial court granted the plaintiff
summary judgment on its breach-of-contract claim. See
id. at 510. The Supreme Court of Texas held that the
non-movant did not need to preserve error to argue on appeal
that the plaintiff failed to show the existence of a
contract. See id. at 511-12.
the burden to conclusively negate at least one element of
Appellants' negligence claim-in particular, the existence
of a duty. See Johnson Cty. Sheriff's Posse, Inc. v.
Endsley, 926 S.W.2d 284, 285 (Tex. 1996). In its motion,
NOV attempted to negate the existence of a duty in part by
arguing that Big Red was a "carrier" and thus had a
"non-delegable duty under federal and Texas law to
secure its load safely." NOV cited federal and Texas
regulations and the decision in Texas Specialty Trailers,
Inc. v. Jackson & Simmen Drilling Co., No.
2-07-228-CV, 2009 WL 2462530 (Tex. App.-Fort Worth Aug. 13,
2009, pet. denied) (mem. op.). NOV also argued that its
internal company policies did not create a duty, and it was
not foreseeable that Big Red would fail to secure the load
before entering a public highway.
their response, Appellants did not refer to any legal
authorities other than the standard of review and instead
focused on the evidence of NOV's "safe work"
policy requiring NOV's employee to verify that the driver
of a disposal truck secured the load before leaving the drill
site. On appeal, however, Appellants address
NOV's arguments concerning the regulations and Texas
Specialty; and Appellants contend that Big Red's
duty does not relieve NOV of its separate common law duty to
use reasonable care in the loading and securing of mud.
that Appellants' arguments on appeal concern whether NOV
met its summary-judgment burden to negate duty as a matter of
law. Appellants challenge the legal sufficiency of the
grounds presented in NOV's motion. Accordingly,
Appellants have not forfeited their appellate complaints by
failing to make more specific arguments to the trial court.
See Amedisys, 437 S.W.3d at 511-12. We will consider
whether NOV negated the existence of duty as a matter of law.
contend that the trial court erred by granting summary
judgment based on NOV's argument that it had no duty to
secure the load of mud. Appellants contend that NOV had a
common law duty to properly secure the load of mud,
regardless of federal and state regulations applicable to Big
Red, and that a vehicle accident was a foreseeable result of
Standard of Review and General Principles
review the granting of summary judgment de novo.
Lightning Oil Co. v. Andarko E&P Onshore, LLC,
No. No. 15-0910, 2017 WL 2200343, at *3 (Tex. May 19, 2017).
NOV, as the movant, had the initial burden to submit
sufficient evidence that establishes (1) there is no genuine
issue as to any material fact and (2) NOV is entitled to
judgment as a matter of law. See Amedisys, 437
S.W.3d at 511. We review the evidence in the light most
favorable to the Appellants, as non-movants, indulging every
reasonable inference in their favor and resolving doubts
against the motion. Lightning Oil, 2017 WL 2200343,
element of negligence is the existence of a legal duty owed
by one person to another. Greater Houston Transp. Co. v.
Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Whether a
legal duty exists under a set of facts is a question of law
for the court to decide from the facts surrounding the
occurrence in question. Id. In making this
determination, courts "consider several interrelated
factors, including 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. Foreseeability of
the risk is the foremost and dominant consideration.