MELISSA SHULTZ ON BEHALF OF ZACHARY TAYLOR SHULTZ AND THEIR TWO MINOR CHILDREN, T.S. AND A.S., Appellant
LONE STAR ROAD CONSTRUCTION, LTD., Appellee
Appeal from the 157th District Court Harris County, Texas
Trial Court Cause No. 2013-57989
consists of Chief Justice Frost and Justices Jewell and
THOMPSON FROST, CHIEF JUSTICE
passenger in a pickup truck traveling on a highway suffered
terrible injuries when a metal tow hook shattered the
truck's windshield and struck him in the head. The
passenger's wife filed this suit on her own behalf and on
behalf of her injured husband and their children, asserting a
negligence claim against a company that was performing road
construction work at the time of the accident. The trial
court granted the company's summary-judgment motion. To
raise a genuine fact issue on causation, the summary-judgment
evidence must raise a genuine fact issue as to whether the
tow hook originated from the highway's left shoulder, in
the company's work area. Concluding that the
summary-judgment evidence does not raise a genuine fact issue
on causation, we affirm the trial court's judgment.
Factual and Procedural Background
Taylor Schultz ("Zachary") was a passenger in a
pickup truck (hereinafter the "Truck") driven by
his co-worker James Freeman. The men were en route from San
Antonio to Houston for a business meeting. While traveling
east on Interstate 10 toward Houston, Zachary suffered
catastrophic injuries when a five-pound metal tow hook
("Tow Hook") shattered the Truck's windshield
and struck Zachary in the head.
wife Melissa, on Zachary's behalf, on her own behalf, and
on behalf of their two minor children ("Schultz")
filed suit against Williams Brothers Construction Company and
appellee Lone Star Road Construction, Ltd.
time of the accident, Lone Star was performing work under a
contract with the Texas Department of Transportation for the
construction of four "direct connectors" linking
Interstate 10 and State Highway 99. Williams Brothers was
also performing work under a contract with the Texas
Department of Transportation for the construction of
"direct connectors" in an area to the east of Lone
Star's construction work.
alleged the following theories of negligence: (1) premises
liability, (2) assumption of negligence duty, (3) negligence
per se, and (4) negligent hiring. Schultz also alleged gross
negligence and sought to recover exemplary damages. Schultz
sought to recover loss-of-consortium damages on her own
behalf and on behalf of the couple's two children.
summary-judgment motion, Lone Star asserted various grounds
including the following:
(1) Schultz has no evidence of any of the elements of her
premises-liability theory of negligence, including: (a) that
Lone Star had actual knowledge of an alleged danger (such as
the presence of the Tow Hook in an area controlled by Lone
Star), and (b) that Lone Star's alleged breach
proximately caused the injuries alleged;
(2) Schultz has no evidence of any of the essential elements
of a claim based on a negligent-hiring, negligent-training,
or negligent-supervision theory of negligence;
(3) Schultz has no evidence of a violation of any statute or
regulation by Lone Star that would support Schultz's
negligence-per-se theory of negligence;
(4) Schultz has no evidence of either of the two essential
elements of gross negligence;
(5) The summary-judgment evidence proves as a matter of law
that Lone Star did not breach any negligence duty;
(6) The summary-judgment evidence proves as a matter of law
that there is no "proximate causal connection"
between any action or inaction by Lone Star and the injuries
(7) The summary-judgment evidence proves Lone Star's
affirmative defense under section 97.002 of the Civil
Practice and Remedies Code as a matter of law.
summary-judgment motion, Lone Star asserted that Schultz
cannot prove where the Tow Hook originated, let alone that
the Tow Hook came from a Lone-Star-controlled area. Lone Star
stated that there is no evidence that any action or inaction
by Lone Star was a proximate cause of the injuries alleged.
Schultz's original response in opposition to Lone
Star's summary-judgment motion, Schultz asserted that a
genuine fact issue precluded summary-judgment based on the
summary-judgment evidence Schultz submitted, including the
opinions of John M. Orlowski and Dr. Michael D. Freeman, two
experts Schultz retained. Orlowski opined that "[i]t is
essentially certain that the [Tow Hook] that caused
[Zachary's] injuries came from an overpass above, and did
not come off a vehicle operating on the same level as the
vehicle in which [Zachary] was riding." According to
Orlowski, "[o]ther than falling from above, there is no
other feasible way for the [Tow Hook] to achieve the velocity
and trajectory necessary to have caused [Zachary's]
unfortunate injuries." Orlowski concluded that
"[t]here is no foreseeable mechanism that could cause a
tire to eject a heavy metal object to a sufficient height
that it would fall and strike a vehicle at an angle of
between 19 and 25 degrees from the vertical."
on his investigation, Dr. Freeman concluded that "the
most probable source of the [Tow Hook] that struck [Zachary]
was a nearby overhead structure." According to Dr.
Freeman, "[a]n analysis of prior reports of similar
events resulting in serious injury indicate[s] that nearly
90% result from objects that were dropped or fell from an
overpass or some other elevated structure." Dr. Freeman
concluded that "there is a complete lack of any other
plausible explanation for the facts surrounding
[Zachary's] injury." In Dr. Freeman's opinion,
"it does not even appear that it would be physically
possible for the [Tow Hook] to have been propelled into the
windshield of [Zachary's] vehicle from contact by the
tire of another vehicle."
trial court granted Schultz's motion to continue the
summary-judgment hearing. The parties conducted discovery.
Schultz settled all of the claims against Williams Brothers,
but did not settle with Lone Star. Schultz then filed an
amended summary-judgment response superseding the prior
response. In the amended response, Schultz no longer relied
upon any testimony or opinions from Orlowski or Dr. Freeman.
Instead, Schultz relied upon the affidavit testimony of
Schultz's expert Edward Carrick. In the amended response,
Schultz contended that the Tow Hook originated from the
left-hand shoulder of the eastbound side of Interstate 10 in
an area in which Lone Star allegedly controlled the shoulder
(hereinafter the "Left Shoulder"). Schultz asserted
that a passing vehicle "kicked up" the Tow Hook.
Schultz asserted that Carrick's testimony raised a fact
issue as to whether the Tow Hook originated from the Left
Shoulder. Schultz relied upon Carrick's opinion that the
Tow Hook originated approximately 45 feet from the point of
impact with the Truck. Schultz also relied upon Carrick's
conclusion that the Tow Hook did not come from above the
Truck, from the active lanes of traffic, or from an area to
the right of the Truck.
attached to the amended summary-judgment response voluminous
summary-judgment evidence, including expert reports from Dr.
Harry Smith and from Richard Tonda, two experts designated by
Lone Star. In his report, Dr. Smith opined that (1)
"[t]he likely road location for the incident was a mile
or more before the centrum of the intersection of [Interstate
10 and State Highway 99]"; and (2) "[t]he [Tow
Hook] likely was kicked up by [Interstate 10] westbound
traffic and came across the median barrier to graze the rear
edge of [the Truck's] hood and strike the [Truck's]
windshield." Tonda disagreed with the opinions of
Orlowski and Dr. Freeman. In his report, Tonda stated that
(1) "[i]t is in fact, possible to demonstrate that [an
object like the Tow Hook] can be picked up by a spinning tire
and projected distances of over 100 feet and to heights of
over 10 feet"; and (2) "[t]here is no basis in a
physical analysis of the incident to assume that the [Tow
Hook] necessarily originated above the roadway. . . ."
Neither Dr. Smith nor Tonda concluded that the Tow Hook
originated from the Left Shoulder, and Schultz does not
assert that the report of either expert raises a genuine
issue of fact on this point.
trial court granted Lone Star's summary-judgment motion
without specifying the grounds. The trial court approved
Schultz's settlement with Williams Brothers and rendered
a final judgment.
Issues and Analysis
appeal, Schultz asserts broadly that the trial court erred in
granting summary judgment and mentions three subsidiary
(1) Did Lone Star owe and breach a duty to use reasonable
care to keep the Left Shoulder safe under Texas common law
and its contract with the Texas Department of Transportation?
(2) Does the summary-judgment evidence raise a genuine fact
issue as to proximate cause?
(3) Was Lone Star's alleged conscious refusal to clean
the Left Shoulder an act of gross negligence?
appeal, Schultz asserts that the testimony of expert witness
Carrick and fact witness Freeman, together with other
circumstantial evidence raises a fact issue as to causation.
components of proximate cause are cause in fact and
foreseeability. Marathon Corp. v. Pitzner, 106
S.W.3d 724, 727 (Tex. 2003) (per curiam). The test for cause
in fact, or "but for causation," is whether the act
or omission was a substantial factor in causing the injury
without which the harm would not have occurred. Id.
A finding of cause in fact may be based on either direct or
circumstantial evidence, but cannot be supported by mere
conjecture, guess, or speculation. Id.
reviewing a no-evidence summary judgment, we ascertain
whether the nonmovant pointed out summary-judgment evidence
raising a genuine fact issue as to the essential elements
attacked in the no-evidence motion. Johnson v. Brewer
& Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex.
2002). In our de novo review of a trial court's summary
judgment, we consider all the evidence in the light most
favorable to the nonmovant, crediting evidence favorable to
the nonmovant if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not.
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582
(Tex. 2006). The evidence raises a genuine fact issue if
reasonable and fair-minded jurors could differ in their
conclusions in light of all of the summary-judgment evidence.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d
754, 755 (Tex. 2007) (per curiam). When, as in this case, the
order granting summary judgment ...