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Bujnoch v. National Oilwell Varco, L.P.

Court of Appeals of Texas, Fourteenth District

September 21, 2017

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
v.
NATIONAL OILWELL VARCO, L.P., Appellee

         On Appeal from the 113th District Court Harris County, Texas Trial Court Cause No. 2012-71172

          Panel consists of Chief Justice Frost and Justices Christopher and Wise.

          OPINION

          Ken Wise, Justice.

         Amanda 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.

         NOV 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.

         We reverse the trial court's judgment on Appellants' negligence claim and remand for further proceedings.

         I. Preservation of Error Is Not Required

         Initially, 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).

         The 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.

         Although 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.

         NOV had 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.

         In 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.[1] 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.

         We hold 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.

         II. Duty

         Appellants 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 NOV's conduct.

         A. Standard of Review and General Principles

         We 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, at *3.

         An 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. Id.

         B. ...


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