Texas Fourteenth Court of Appeals Chief Justice Kem Thompson Frost | txcourts.gov
HOUSTON -- After ruling the summary judgment evidence doesn’t present a genuine fact issue on causation, the Texas 14th Court of Appeals affirmed July 18 a judgment for a construction company being sued after a man suffered an injury in a road accident.
Chief Justice Kem Frost authored the opinion. Justice Kevin Jewell concurred.
Melissa Schultz sued Lone Star Road Construction LTD on behalf of her husband, Zachary Taylor Schultz and their two children. Zachary Schultz was riding in the passenger seat of a pickup truck on a Texas highway when a metal tow hook broke the truck’s windshield and hit him in the head.
Melissa Schultz sued for premises liability, assumption of negligence duty, negligence per se and negligent hiring against Lone Star, which had a construction contract with the Texas Department of Transportation and was conducting construction on the highway where the accident occurred. She also alleged gross negligence and asked for exemplary damages and recovery of loss-of-consortium damages for herself and her and the Schultz children. The lower court granted Lone Star its motion for summary judgment and Melissa Schultz appealed.
The court needed to determine if there was a genuine fact issue as to causation. After witness and expert Edward Carrick testified on Schultz's behalf, the appeals court said, “The record contains no summary-judgment evidence supporting the assumption that a vehicle drove over the tow hook in the area shown … and [the witness’s] testimony contradicts his assumption. Therefore, [the expert’s] testimony founded on this assumption is not competent evidence.”
The expert also failed to show a connection between his determination that the tow hook traveled 45 feet and the information concerning the tow hook when it was 6 feet off the ground and ended up in the truck. Ultimately, the court ruled, the expert's reasoning that the tow hook traveled 45 feet from its starting point to the actual truck doesn’t back the opinion.
The appeals court decided, “Under the applicable standard of review, we conclude that the summary judgment evidence does not raise a genuine fact issue as to whether the point from which the tow hook was launched was within the left shoulder or as to whether an act or omission of Lone Star served as a substantial factor in causing injury to Zachary, without which the harm would have not have occurred.” Considering this, the lower court didn’t make a mistake when it granted summary judgment based on [Melissa] Schultz’s negligence claims.
The appeals court also affirmed there was not a genuine fact for gross negligence, which the current court said wasn’t separate from the negligence claim for which it had already ruled. The summary judgment for Lone Star is fair, the appeals court ruled as it affirmed the original ruling.
Justice Margaret “Meg” Poissant” dissented and pointed out that Melissa Schultz’s expert was ultimately asked to prove his theory. “But a nonmovant is not required to marshal its proof to defeat a no-evidence summary judgment; the nonmovant must only point out evidence that raises a fact issue on the challenged element,” Poissant argued. She challenged the idea that there was no evidence that the tow hook was in the area that Lone Star oversaw.