Shultz v. Lone Star Road Construction, Ltd.

          On Appeal from the 157th District Court Harris County, Texas Trial Court Cause No. 2013-57989

          Panel consists of Chief Justice Frost and Justices Jewell and Poissant.

          MAJORITY OPINION

          KEM THOMPSON FROST, CHIEF JUSTICE

         A 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.

         I. Factual and Procedural Background

         Zachary Taylor Schultz ("Zachary")^[1] 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.

         Zachary's 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.

         At the 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.

         Schultz 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.

         In its 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 sustained; and

(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.

         In its 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.

         In 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."

         Based 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."

         The 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.

         Schultz 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.

         The 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.

         II. Issues and Analysis

         On appeal, Schultz asserts broadly that the trial court erred in granting summary judgment and mentions three subsidiary issues:

(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?^[2]

         On 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.

         The 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.

         In 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 ...