Borth v. Charley's Concrete Co., Inc.

• Decision Date: 20 May 2004
• Docket Number: No. 2-03-107-CV.,2-03-107-CV.
• Citation: 139 S.W.3d 391
• Parties: Carmen BORTH, Individually and on Behalf of the Estate of Blake Borth, Deceased, and as Next Friend of Tarl Borth, Elizabeth Borth, Richard Borth, Minor Children, Appellant, v. CHARLEY'S CONCRETE COMPANY, INC. and Chris L. Gullett, Appellees.
• Court: Texas Court of Appeals

139 S.W.3d 391

Carmen BORTH, Individually and on Behalf of the Estate of Blake Borth, Deceased, and as Next Friend of Tarl Borth, Elizabeth Borth, Richard Borth, Minor Children, Appellant, v. CHARLEY'S CONCRETE COMPANY, INC. and Chris L. Gullett, Appellees.

No. 2-03-107-CV.

Court of Appeals of Texas, Fort Worth.

May 20, 2004.

Rehearing Overruled June 24, 2004.

Rehearing En Banc Overruled August 12, 2004.

Appeal from the 236th District Court, Tarrant County, Thomas Wilson Lowe, III, J Charles M. Noteboom, J. Mark Sudderth, Noteboom Law Firm, Hurst, for appellant.

W. Blake Hyde, Law Office of W. Blake Hyde, Richardson, for appellees.

PANEL A: CAYCE, C.J., LIVINGSTON and WALKER, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

A concrete truck owned by Charley's Concrete Company, Inc. and driven by Chris L. Gullett struck and killed Blake Borth as he rode his bike. Appellant Carmen Borth filed a negligence suit against the Company and Gullett seeking wrongful death damages for herself and the couple's three minor children and seeking survival damages on behalf of her husband's estate. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 13219; 71.002(b),.021(b) (Vernon 1997). The trial court granted a traditional and no-evidence summary judgment for the Company and Gullett. Carmen perfected this appeal and raises a single issue claiming that the trial court erred by granting summary judgment. We reverse and remand.

II. STANDARD OF REVIEW

A. No-Evidence Motion

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim or defense. TEX.R. CIV. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See TEX.R. CIV. P. 166a(i) & cmt.; S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002).

We review the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered. Johnson, 73 S.W.3d at 197; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.2000). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). 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. See Wyatt v. Longoria, 33 S.W.3d 26, 31 (Tex.App.-El Paso 2000, no pet.). 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. at 31.

B. Traditional Motion

In reviewing a traditional summary judgment, we determine whether the movant sustained his burden of establishing that no genuine issue of material fact exists and his entitlement to judgment as a matter of law. TEX.R. CIV. P. 166a(c); S.W. Elec. Power Co., 73 S.W.3d at 215; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. S.W. Elec. Power Co., 73 S.W.3d at 215; Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Great Am., 391 S.W.2d at 47.

A defendant is entitled to summary judgment only if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiff's cause of action cannot be established. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999). The defendant as movant must present summary judgment evidence that negates an element of the plaintiff's claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Id.

III. GENUINE ISSUES OF MATERIAL FACT EXIST

Appellees sought a no-evidence summary judgment on the ground that no evidence existed that their negligence proximately caused Blake's death. See TEX.R. CIV. P. 166a(i). Appellees sought a traditional summary judgment on the grounds that Appellees conclusively established that Blake was the "sole cause" of the accident and conclusively established that no wrongful death or survival damages existed. See TEX.R. CIV. P. 166a.

A. Negligence & Proximate Cause

The police report of the accident was attached to, and specifically referenced in, Carmen's summary judgment response. The police report indicates that several witnesses said Blake simply failed to yield the right-of-way to the concrete truck as it turned and rode into the side of the truck. Other witnesses said, however, that the concrete truck was too large to maneuver the right turn it was attempting.

One witness stated that when the concrete truck turned right, the truck's right rear tandem tires ran over the curb, catching the victim's handlebars and pulling the cyclist under the truck's rear tires. One witness said that the back tire of the victim's bicycle was still on the curb when the truck struck it. The police investigator at the scene wrote that "the victim was laying just south of the intersection itself... with the head to the east in the street itself, and the feet up on the curved curb." And police found "black residue, believed to be rubber from a tire, as well as some small crushed rocks on top of the sidewalk in the middle of the curved area very near the curb and the body" and photographed "the black scrape marks and the crushed rocky material on the sidewalk." Police documented that a section of rubber on the inside edge of the rear-most inside right tire "appeared to be scraped partially off the tire, with a flap of rubber hanging from the sidewall of the tire." Another Officer documented that "there was evidence of the rear tires of the concrete truck having run over the southeast curbline." Blake died at the scene as a result of the injuries he sustained. Viewing this evidence in the light most favorable to Carmen, a genuine issue of material fact exists as to whether Gullett negligently turned the Company's concrete truck so that its back right wheels ran over the curb and struck Blake, proximately causing his death, and more than a scintilla of evidence exists that Gullett, and consequently, the Company, negligently caused Blake's death.

Appellees contend that admissions deemed against Carmen establish that Blake was the "sole cause" of the accident, entitling them to summary judgment. The admissions Appellees point to, however, at most merely show that Blake was contributorily negligent. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 13219; 33.001, .003, .012 (Vernon 1997 & Supp.2004) While these admissions could be construed as entitling Appellees to submission of Blake's contributory negligence, they do not establish that Appellees were not negligent. In light of the summary judgment evidence outlined above, viewed in the light most favorable to Carmen, more than a scintilla of probative evidence exists raising a genuine issue of material fact concerning Appellees' negligence, Appellees did not conclusively negate this element of Carmen's claim, and Appellees did not establish their right to summary judgment as a matter of law on Carmen's negligence claim.

B. Survival Damages

A decedent's personal injury action survives death and may be prosecuted on his behalf. TEX. CIV. PRAC. & REM.CODE ANN. § 71.021(a). The purpose of the Texas Survival Act is to continue a decedent's cause of action beyond death to redress decedent's estate for decedent's injuries. Russell v. Ingersoll-Rand Co., 795 S.W.2d 243, 245 (Tex.App.-Houston [1st Dist.] 1990), aff'd, 841 S.W.2d 343 (Tex.1992). The actionable wrong in a survival action is that which the decedent suffered before death. Russell, 841 S.W.2d at 345; Felan v. Ramos, 857 S.W.2d 113, 118 (Tex.App.-Corpus Christi 1993, writ denied). The damages recoverable are those that the decedent sustained while alive. Russell, 841 S.W.2d at 345. Any recovery obtained flows to those who would have received it had the decedent obtained a damages recovery immediately prior to death. Id. Thus, the heirs or legal representatives of a decedent's estate may recover for the physical pain, suffering, and property damage sustained by the decedent before death, as well as for medical expenses and other damages. Martinez v. Angerstein, 517 S.W.2d 811, 815-16 (Tex.Civ.App.-Corpus Christi 1974, writ dism'd).

A party may establish the existence of conscious pain and suffering by circumstantial evidence. Landreth v. Reed, 570 S.W.2d 486, 492 (Tex.Civ.App.-Texarkana 1978, no writ). Pain and suffering may be inferred or presumed as a consequence of severe injuries. City of Austin v. Selter, 415 S.W.2d 489, 501 (Tex.Civ.App.-Austin 1967, writ ref'd n.r.e.). Only pain consciously suffered and experienced is compensable. Southern Pac. Transp. Co. v. Luna, 730 S.W.2d 36, 38 (Tex.App.-Corpus Christi 1987, no writ).

Appellees claim that no evidence exists of conscious pain and suffering by Blake. Witnesses said that when the side of the concrete truck struck Blake his bicycle handlebars became lodged in the rear right tire area and he was pulled under the truck. The report from Appellees' accident reconstruction...