Court of Appeals of Texas, Fourth District, San Antonio
the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 14-2419-CV Honorable William Old, Judge
Sitting: Rebeca C. Martinez, Justice, Patricia O. Alvarez,
Justice Luz Elena D. Chapa, Justice.
Elena D. Chapa, Justice.
Skrzycki filed the underlying wrongful death action asserting
Shirley B. Wright's negligence was a proximate cause of
her husband's death in an automobile accident. In this
appeal, Skrzycki contends the trial court erred in granting a
no-evidence summary judgment in favor of Wright because
Skrzycki presented more than a scintilla of evidence to raise
a genuine issue of material fact on the breach and causation
elements of her claim. We affirm the trial court's
husband was driving a propane tank truck traveling north on a
farm-to-market road. Leigh Ann Sumners ran a stop sign at an
intersection and collided with the propane tank truck,
causing the truck to roll onto its left side and eject
Skrzycki's husband. The impact of the collision caused
the truck to continue rotating on its side in a clockwise
direction into the southbound lane of the farm-to-market road
where an SUV being driven by Wright collided with the roof of
the truck. After Wright's SUV collided with the truck,
the truck continued spinning clockwise on its side before
coming to rest in a ditch. In the DPS crash report, Sumners
was charged with criminally negligent homicide. The crash
report did not attribute any fault to Wright.
sued Wright alleging she was negligent in failing to keep a
proper lookout, failing to timely or properly apply her
brakes, and failing to turn or swerve to avoid the collision.
Wright filed a no-evidence motion for summary judgment
asserting Skrzycki had "no evidence Mrs. Wright's
conduct breached a duty of care owed or, assuming
arguendo that she breached a duty of care, that her
conduct was the proximate cause of Mr. Skrzycki's tragic
and untimely death." Skrzycki filed a response to the
motion. After considering the motion and response, the trial
court signed an order granting Wright's motion. Skrzycki
review a trial court's granting of a summary judgment de
novo. Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005). A no-evidence summary judgment is
essentially a directed verdict granted before trial, to which
we apply a legal sufficiency standard of review. King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.
2003). "A no-evidence motion for summary judgment must
be granted if, after an adequate time for discovery, the
moving party asserts there is no evidence of one or more
essential elements of a claim or defense on which an adverse
party has the burden of proof at trial and the nonmovant
fails to produce more than a scintilla of summary judgment
evidence raising a genuine issue of material fact on those
elements." Medistar Corp. v. Schmidt, 267
S.W.3d 150, 157 (Tex. App.-San Antonio 2008, pet. denied);
see also Tex. R. Civ. P. 166a(i). "Less than a
scintilla of evidence exists when the evidence is so weak as
to do no more than create a mere surmise or suspicion of a
fact." King Ranch, Inc., 118 S.W.3d at 751
(internal quotation marks omitted). "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." Id. (internal
quotation marks omitted). When reviewing a no-evidence
summary judgment, "we examine the entire record in the
light most favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts against the
motion." Sudan v. Sudan, 199 S.W.3d 291, 292
(Tex. 2006) (per curiam) (internal quotation marks omitted).
Duty of Motorists
driver has a general duty to exercise the ordinary care a
reasonably prudent person would exercise under the same
circumstances to avoid a foreseeable risk of harm to
others." Ciguero v. Lara, 455 S.W.3d 744, 748
(Tex. App.-El Paso 2015, no pet.) . "Motorists [also]
have a general duty to keep a proper lookout."
Montes v. Pendergrass, 61 S.W.3d 505, 509 (Tex.
App.-San Antonio 2001, no pet.). The duty to keep "[a]
proper lookout encompasses the duty to observe, in a careful
and intelligent manner, traffic and the general situation in
the vicinity, including speed and proximity of other vehicles
as well as rules of the road and common experience."
Id. (quoting Carney v. Roberts Inv. Co.,
837 S.W.2d 206, 210 (Tex. App.-Tyler 1992, writ denied)).
"The failure to keep a proper lookout can be a proximate
cause of an accident where the motorist should have seen
something in time to have avoided the accident by evasive
action and but for such failure the collision could have been
avoided." Ciguero, 455 S.W.3d at 748 (quoting
Montes, 61 S.W.3d at 510).
response to Wright's no-evidence motion for summary
judgment, Skrzycki presented the following summary judgment
evidence: (1) the crash report; (2) Wright's voluntary
sworn statement; and (3) Mr. Skrzycki's death
certificate. In her brief, Skrzycki asserts this
evidence, considered in the light most favorable to her,
demonstrated that Wright breached the duty she owed to Mr.
Skrzycki "by failing to take appropriate evasive action
in order to avoid slamming her vehicle into the cab of the
overturned propane truck." Skrzycki specifically relies
on: (1) a forensic map attached to the crash report which
Skrzycki believes "reflects a considerable distance
between the areas of impact (AOI) of each collision;"
(2) the absence of any indication in the crash report that
Wright attempted to decelerate or take any evasion action or
maneuvers; and (3) no skid marks from Wright's
vehicle being noted on the forensic map. Skrzycki also relies
on Wright's sworn statement in which Wright stated she
saw Sumners's vehicle traveling fast on the side road and
was watching "to be sure [Wright] would not be in the
way in case [Sumners] did not stop" at the intersection
and that she "saw the propane truck in the same
we were to agree that the foregoing raised a fact issue on
whether Wright failed to keep a proper lookout, the evidence
does not raise a genuine issue of material fact on proximate
cause, "i.e. that [Wright] could have avoided colliding
with [Mr. Skrzycki] if [Wright] fulfilled [her] general
duties as a driver." See Ciguero, 455 S.W.3d at
748. "A driver's testimony that a collision occurred
concurrent with or immediately preceding his recognition of a
road hazard, standing alone, constitutes no evidence on the
issue of proximate cause because it does not raise a fact
issue on whether the accident could have been avoided."
Id. at 749. The absence of evidence on this issue
makes this case similar to the El Paso ...