Ramirez v. Colonial Freight Warehouse Co.

• Decision Date: 22 April 2014
• Docket Number: No. 01–13–00617–CV.,01–13–00617–CV.
• Citation: 434 S.W.3d 244
• Parties: Simon RAMIREZ, Appellant v. COLONIAL FREIGHT WAREHOUSE CO. INC., Appellee.
• Court: Texas Court of Appeals

434 S.W.3d 244

Simon RAMIREZ, Appellant

v.COLONIAL FREIGHT WAREHOUSE CO. INC., Appellee.

No. 01–13–00617–CV.

Court of Appeals of Texas,

Houston (1st Dist.).

April 22, 2014.

Javier Villarreal, Villarreal & Begum, PLLC, Brownsville, TX, for Appellant.

Spencer Edwards, Nicole James Petrelli, The Hudgins Law Firms, P.C., Houston, TX, for Appellee.

Panel consists of Justices KEYES, BLAND, and BROWN.

OPINION

HARVEY BROWN, Justice.

Simon Ramirez appeals a no-evidence summary judgment granted to Colonial Freight Warehouse Co., Inc. on his personal injury suit. In two issues, Ramirez contends that the trial court erred in granting summary judgment because Ramirez produced evidence sufficient to raise a genuine issue of material fact on each challenged element of his negligence claim. We conclude that Ramirez has raised a genuine issue of material fact on each element, precluding summary disposition of his claim. We, therefore, reverse and remand.

Background

Ramirez, a truck driver, was struck by a truck while walking across the fueling area of a truckstop. The truck that struck him was driven by a Colonial Freight employee, Winnfred Lipsius. Ramirez described the accident in his deposition, which he attached as evidence to his summary judgment response. According to Ramirez's testimony, the Colonial Freight truck sat idling in the parking lot of the truckstop. Before walking in front of the stopped vehicle, Ramirez attempted to make eye contact with the truck's driver, Lipsius, to ensure Lipsius could see him. Ramirez testified that Lipsius was looking to his left and never turned forward to see Ramirez standing at the front, passenger side of his truck. When Ramirez could not get Lipsius's attention, Ramirez walked in front of the vehicle, leaving a distance of about five feet between the truck and himself. But Lipsius's truck pulled forward before Ramirez made it across. Ramirez heard the truck “throttle up” and jumped to move out of the way. The truck's front, passenger side struck him.

Ramirez also testified about his injuries. Upon impact, he fell to his knees then “pulled [him]self up” unassisted. He had been carrying two milkshakes in his hands when the accident occurred. The impact and fall did not cause him to drop either shake. Nonetheless, he said, “I felt hurt.” He lay down in his truck bunk, “already feeling ... the pain.” He had a cut on his elbow that was bleeding, and his left shoulder was red and bruised. He testified that his shoulder hurt immediately: “[I]t was just hurting, you know, bullets in the back. And my arm was numb.” Also, his neck hurt. He took ibuprofen and drove from Houston, where the accident occurred, to Brownsville later that day.

The next morning, he felt like he “couldn't get up.” He was examined three days after the injury by Dr. Orso, who ordered x-rays. Ramirez understood from his conversation with Dr. Orso that he was hurt, that the discs in his spine were out of place, and that he would need additional treatment. Though he was told to return to Dr. Orso's office in two weeks, he did not. He next saw Dr. Bettencourt who performed a procedure on his neck. Later he saw Dr. Aggarwal who gave him injections in his neck. Eventually he had neck surgery and shoulder surgery.

Lipsius testified in his deposition, which also was attached as summary judgment evidence, that he had pulled his truck forward from the fueling station to a yellow line that designates where trucks need to stop to leave room for another truck to enter the fueling station behind them. He then decided he wanted something to drink and went inside the store. When he saw the long line, he went back to his truck, which was still parked in the fueling area. He started the truck, released the air brake, and then looked both directions. When he looked left he saw a truck next to him and waited to see if it was going to exit the fueling area first. When that truck stopped, Lipsius removed his foot from the brake, and his truck moved forward one or two feet. Immediately after that, he saw Ramirez “spinning out from in front of [his] truck ....” He had not seen Ramirez before then. Lipsius admitted that he did not look around again between the time that his attention was focused on the other truck and the moment he began accelerating. He further admits that his truck hit Ramirez.

Lipsius also testified that he had a total of eight “incidents” listed on his driving report, which details prior incidents, accidents, tickets, and reasons for leaving various employers. He described four of these incidents, which occurred over a six-year period. The last involved an accident in which his truck hit a guardrail, caught on fire, and “burn[ed] to the ground.” According to Lipsius's deposition testimony, with eight incidents on his report, “nobody else would touch” him.

Lipsius testified that he applied online to drive for Colonial Freight and that Colonial Freight did not ask for references. No one at Colonial Freight inquired about his driving history or past accidents. Lipsius testified that he told the Colonial Freight “safety/recruiting” employee about the guardrail accident and that he was fired as a result, and she told him “not to say anything” about that accident to anybody else in the company. He eventually told the company owner about the incident and was told “not to worry about it.”

Ramirez sued Colonial Freight, alleging that the accident caused his personal injuries and required subsequent surgical procedures to his neck and shoulder. Colonial Freight moved for no-evidence summary judgment, contending that Ramirez had no evidence of the breach and causation elements of his negligence claim and, therefore, also had no evidence on two elements of his negligent entrustment and negligent hiring claims. Ramirez responded, attachingas evidence his and Lipsius's depositions. Ramirez did not file his own affidavit or an affidavit from any physician in response to the summary judgment motion. The trial court granted Colonial Freight's motion without specifying the element for which Ramirez failed to produce evidence. Ramirez appealed.

Standard of Review

In a Rule 166a(i) no-evidence summary judgment, the movant contends that no evidence exists as to one or more essential elements of the nonmovant's claims, upon which the nonmovant would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). The nonmovant has the burden to present evidence raising a genuine issue of material fact on the challenged elements. Id. A no-evidence summary judgment is essentially a pre-trial directed verdict. Bendigo v. City of Houston, 178 S.W.3d 112, 113–14 (Tex.App.-Houston [1st Dist.] 2005, no pet.).

On review, we ascertain whether the nonmovant produced more than a scintilla of probative evidence to raise a genuine issue of material fact. Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 308 (Tex.App.-Houston [1st Dist.] 2007, no pet.). More than a scintilla exists if the evidence “ ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). If the evidence does no more than create a mere surmise or suspicion of fact, less than a scintilla of evidence exists. Havner, 953 S.W.2d at 711–12. To defeat a no-evidence motion for summary judgment, the nonmovant is not required to marshal its proof; his response need only point out evidence that raises a fact issue on the challenged elements. Tex.R. Civ. P. 166a(i) cmt.; Saenz v. S. Union Gas Co., 999 S.W.2d 490, 493–94 (Tex.App.-El Paso 1999, pet. denied).

Ramirez's Summary Judgment Evidence

Colonial Freight's motion focused on the breach and proximate cause elements of negligence. In response, Ramirez attached Lipsius's deposition transcript and his own deposition transcript, contending that Lipsius's testimony raised an issue of material fact on the breach element while his testimony raised an issue on causation by establishing the nature and extent of his injuries and that the “onset of painful symptoms began at the moment of the incident.” We must determine whether Ramirez's summary judgment evidence raised an issue of material fact on each of the challenged elements of his negligence claim.

Breach Element

Colonial Freight moved for no-evidence summary judgment on the breach element of the negligence claim, arguing that there was no evidence that Lipsius's conduct fell below the standard of care of a driver or violated a statute.

A negligence cause of action has three elements: (1) a legal duty, (2) breach of that duty, and (3) damages proximately resulting from the breach. See Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex.1998). A person owes another the duty to act as a reasonably prudent person would act under the same or similar circumstances regarding a reasonably foreseeable risk. Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex.1984).

Colonial Freight challenges the second element of Ramirez's negligence claim: breach of the duty of reasonable care. Ramirez's summary judgment responseidentified specific portions of Lipsius's deposition testimony that he claims raised a fact issue. Lipsius testified that he looked both directions before attempting to drive away from the truckstop. When he looked left, he saw a truck next to him and waited to see if it was going to exit the fueling area first. When that truck did not go, Lipsius removed his foot from the brake, and his truck moved forward one or two feet. Lipsius admitted that he did not look around again between the time that his attention was focused on the other truck and the moment he began accelerating.

Viewing this evidence in the light most favorable to the nonmovant, reasonable and fair-minded people could differ in their conclusions about whether Lipsius was negligent in failing to look out for pedestrians near his truck before accelerating. Se...