Emeterio Saenz v. J.D. Rodriguez Produce & Trucking Company and J.D. Rodriguez--Appeal from 224th Judicial District Court of Bexar County

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Laws-info.com » Cases » Texas » 4th District Court of Appeals » 2000 » Emeterio Saenz v. J.D. Rodriguez Produce & Trucking Company and J.D. Rodriguez--Appeal from 224th Judicial District Court of Bexar County

State: Texas

Court: Texas Northern District Court

Docket No: 04-99-00867-CV

Case Date: 12/29/2000

Plaintiff: MICHAEL ARTHUR MCGIFFIN

Defendant: THE STATE OF TEXAS--Appeal from County Court at Law of Calhoun County

Preview:Emeterio Saenz v. J.D. Rodriguez Produce & Trucking
Company and J.D. Rodriguez--Appeal from 224th
Judicial District Court of Bexar County
No. 04-99-00867-CV
Emeterio SAENZ,
Appellant
v.
J.D. RODRIGUEZ PRODUCE AND TRUCKING COMPANY and John D. Rodriguez,
Appellees
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CI-09011
Honorable David A. Berchelmann, Jr., Judge Presiding
Opinion by: Alma L. L pez, Justice
Sitting: Tom Rickhoff, Justice
Alma L. L pez, Justice
Sarah B. Duncan, Justice
Delivered and Filed: December 29, 2000
AFFIRMED
Emeterio Saenz appeals the trial court=s summary judgment granted in favor of J. D. Rodriguez Produce and Trucking
Company and John D. Rodriguez (ARodriguez@). Saenz sued Rodriguez alleging negligence, res ipsa loquitur,
negligent entrustment, and malice (gross negligence). On appeal, Saenz complains that the trial court erred in granting
the summary judgment. We affirm the judgment of the trial court.
Factual and Procedural Background
On February 13, 1997, Saenz was driving a tractor-trailer owned by Rodriguez from Colorado with a load of potatoes.
Joe Colunga was a co-driver with Saenz. Saenz was not an employee of Rodriguez, but worked as an independent
contractor for J.D. Rodriguez Produce and Trucking, a sole proprietorship owned by Rodriguez. Saenz stopped the
tractor-trailer on the improved shoulder of a downhill section of Interstate Highway 10 (AIH-10@) just north of
Boerne, Texas. At the time Saenz stopped the truck, Colunga was asleep in the cab of the truck. After Saenz stepped
down from the truck, it started to roll. Saenz attempted to get back into the truck cab, but slipped off the running
board. Saenz fell to the pavement and the rear wheels of the tractor ran over his legs. EMS treated Saenz at the scene
and transported him to University Hospital. After he was discharged from the hospital, Saenz developed an infection in
his left leg. As a result, his leg was ultimately amputated. Saenz also broke his right leg, and inflicted severe injuries to
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his right foot, left shoulder, left arm and body in general.
On June 17, 1998, Saenz filed his lawsuit against Rodriguez alleging negligence, negligence per se in violation of the
Federal Motor Carrier Safety Regulations (AFMCSR@), and malice (gross negligence). On July 27, 1999, Rodriguez
filed a no-evidence motion for summary judgment. On August 16, 1999, Saenz filed a first amended original petition
alleging additional negligence and negligence per se claims, res ipsa loquitur, and that Rodriguez negligently entrusted
the truck to Colunga. On August 31, 1999, the trial court granted Rodriguez=s no-evidence motion as to the entire
case. On November 12, 1999, the trial court denied Saenz=s amended motion to set aside the no-evidence summary
judgment order and request for leave to open summary judgment evidence for reconsideration; or alternatively, a
motion for new trial. On appeal, Saenz complains that the trial court erred in granting a no-evidence summary
judgment in Rodriguez=s favor because Rodriguez=s conclusory motion did not address each claim in his petition and
there was more than a scintilla of evidence to support each and every claim.
Standard of Review
We review a summary judgment de novo. See Gonzales v. American Postal Workers Union, AFL CIO, 948 S.W.2d
794, 797 (Tex. App.CSan Antonio 1997, writ denied). A no evidence summary judgment is essentially a pretrial
directed verdict, and we apply the same legal sufficiency standard in reviewing a no evidence summary judgment as
we apply in reviewing a directed verdict. See Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.CSan Antonio
1998, no pet.). We review the evidence in the light most favorable to the respondent against whom the no evidence
summary judgment was rendered, disregarding all contrary evidence and inferences. See Merrell Dow Pharmaceuticals,
Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Moore, 981 S.W.2d at 269. A no evidence summary judgment is
improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of
material fact. See Tex. R. Civ. P.166a(i); see also Havner, 953 S.W.2d at 711; Moore, 981 S.W.2d at 269. 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 Gomez v. Tri City Community Hosp., Ltd., 4 S.W.3d 281, 283 (Tex. App.CSan Antonio 1999, no pet.);
Moore, 981 S.W.2d at 269. 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. See Gomez, 4 S.W.3d at 283; Moore, 981
S.W.2d at 269.
When reviewing a summary judgment granted on general grounds, this court considers whether any theories asserted
by the summary judgment movant will support the summary judgment. See State Farm Fire & Cas. Co. v. S.S., 858
S.W.2d 374, 380 (Tex. 1993). When a trial court=s order granting summary judgment does not specify the ground or
grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are
meritorious. See id.
Discussion
In his first and second issues, Saenz complains that the trial court erred in granting summary judgment because the trial
court granted judgment on claims not addressed in the summary judgment motion. Specifically, Saenz argues that
Rodriguez failed to amend his motion for summary judgment after Saenz amended his original petition to include
additional negligence claims. Saenz=s first amended original petition alleged additional claims of negligence and
negligence per se,[1] res ipsa loquitur, negligent entrustment, and malice. In his motion for summary judgment,
Rodriguez addressed Saenz=s malice claim, some of Saenz=s negligence and negligence per se claims,[2] and failed to
address Saenz=s negligent entrustment claim. Accordingly, Saenz contends that summary judgment should be reversed
on each specific negligence and negligent entrustment claim that Rodriguez failed to address in his motion.
A no-evidence motion for summary judgment must specify the elements of the plaintiff=s claim as to which there is no
evidence. See Tex. R. Civ. P.166a(i); Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 436 (Tex. App.CHouston [14
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th Dist.] 1999, no pet.). This, in turn, shifts the burden on the nonmovant to come forward with some evidence of the
essential element or elements challenged in the motion. See Lampasas, 988 S.W.2d at 436. If the nonmovant does not,
then the trial court must grant the no-evidence motion for summary judgment covering all the claims or defenses
composed of the element or elements that were specifically challenged. See Tex. R. Civ. P.166a(i); Lampasas, 988
S.W.2d at 436.
Rodriguez=s motion specifically challenged the element of proximate causation as to each of Saenz=s negligent
claims. Rodriguez was not required to amend his motion in response to the amended petition because the added
negligence claims and the negligent entrustment claim contained the same element of proximate causation that was
previously challenged. Therefore, Saenz was required to introduce evidence of proximate causation as to each of his
negligence claims, including the negligent entrustment claim, in order to avoid summary judgment.
Saenz=s reliance on his first amended pleadings instead of bringing forward the requisite evidence on proximate
causation was an attempt to avoid the effect of the no-evidence summary judgment rule. See Lampasas, 988 S.W.2d at
436. Based on the facts before us, the amended petition merely reiterates the same essential elements of negligence
(duty, breach and causation) in another fashion, and the motion for summary judgment adequately covered these new
variations. See id. at 437. Accordingly, we overrule issues one and two .
In his third issue, Saenz complains that the trial court erred in granting summary judgment because there was more
than a scintilla of evidence to support each and every claim that he asserted. In response, Rodriguez contends that
Saenz failed to produce competent summary judgment evidence on proximate cause, an essential element of his
recovery.
The elements for negligence include: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3)
damages proximately resulting from that breach. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525
(Tex. 1990). Although Rodriguez addressed negligence per se separately in his motion for summary judgment,
negligence per se is not a cause of action separate and independent from a common law negligence action. See Zavala
v. Trujillo, 883 S.W.2d 242, 245 (Tex. App.CEl Paso 1994, writ denied). Negligence per se is a tort concept whereby a
legislatively imposed standard of conduct is adopted by the civil courts as defining the conduct of a reasonably prudent
person. See Carter v. William Sommerville and Son, Inc., 584 S.W.2d 274, 278 (Tex.1979); Borden, Inc. v. Price, 939
S.W.2d 247, 250 (Tex. App.CAmarillo 1997, writ denied). The unexcused violation of a statute constitutes negligence
as a matter of law if such statute was designed to prevent injury to the class of persons to which the injured party
belongs. See Moughon v. Wolf, 576 S.W.2d 603, 604 (Tex. 1978); Ward v. Northeast Texas Farmers Co op. Elevator,
909 S.W.2d 143, 147 (Tex. App.CTexarkana 1995, writ denied). The trial court merely has the fact finder decide if the
tortfeasor committed the act proscribed by the statute and if the act proximately caused injury. See Borden, 939
S.W.2d at 250.
Res ipsa loquitur, meaning Athe thing speaks for itself,@ is used only in certain limited cases where the circumstances
surrounding the accident constitute sufficient circumstantial evidence of the defendant=s negligence to support such a
finding. See Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990); Schorlemer v. Reyes, 974 S.W.2d 141, 145
(Tex. App.CSan Antonio 1998, pet. denied). Specifically, res ipsa loquitur applies only when two factors are present:
(1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the
instrumentality causing the injury is shown to have been under the management and control of the defendant. See
Haddock, 793 S.W.2d at 950; Schorlemer, 974 S.W.2d at 145. Furthermore, the likelihood of other causes does not
have to be completely ruled out, but their likelihood must be Aso reduced that the jury can reasonably find by a
preponderance of the evidence that the negligence, if any, lies at the defendant=s door.@ See Schorlemer, 974 S.W.2d
at 145. Accordingly, res ipsa loquitur is simply a rule of evidence by which negligence may be inferred by the jury; it
is not a separate cause of action from negligence. See Haddock, 793 S.W.2d at 950.
The elements of negligent entrustment are: (1) entrustment of a vehicle by the owner; (2) to an unlicensed,
incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, incompetent, or
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reckless; (4) that the driver was negligent on the occasion in question; and (5) that the driver=s negligence proximately
caused the accident. See Frito Lay, Inc. v. Queen, 873 S.W.2d 85, 86 (Tex. App.CSan Antonio 1994, writ denied).
Implicit in this criteria is that the driver to whom the vehicle was entrusted was the same driver who proximately
caused the accident. See id.
Malice or gross negligence includes two elements: (1) viewed objectively from the actor=s standpoint, the act or
omission must involve an extreme degree of risk, considering the probability and the magnitude of the potential harm
to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in
conscious indifference to the rights, safety, or welfare of others. See Tex. Civ. Prac. & Rem. Code Ann. ' 41.001(7)(B)
(Vernon 1997); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). Evidence of simple negligence is not
enough to prove either the objective or subjective elements of gross negligence. See Ellender, 968 S.W.2d at 921.
In the instant case, Saenz argues that his summary judgment proof brings forth more than a scintilla of probative
evidence to raise a genuine issue of material fact. Saenz=s summary judgment proof consists of the following: (1)
Saenz=s affidavit and non-stenographic deposition; (2) Rodriguez=s responses and objections to Saenz=s first set of
interrogatories, requests for production and requests for admissions; (3) an insurance endorsement; and (4)
Rodriguez=s oral/video deposition testimony.
Initially, Saenz offered his affidavit and his non-stenographic deposition as summary judgment proof. In his affidavit,
Saenz contended that Rodriguez owned a for-hire trucking company that would deliver and pick up goods both inside
and outside the United States. Saenz drove routes for Rodriguez. In the middle of February 1997, Rodriguez asked
Saenz if he would pick up goods from the valley, pick up Joe Colunga and, together, go to the state of Colorado,
deliver goods, and take back a shipment of goods to San Antonio, Texas. Saenz claimed that Rodriguez never wanted
to pay for permits and Saenz understood that he and Colunga were only supposed to drive evenings to avoid weigh
stations and permit checks. Furthermore, Saenz asserted that at one time Colunga was a capable driver, but by the time
he began working for Rodriguez, Colunga was a substance abuser and had difficulty making the routes on his own.
Colunga had some physical difficulties that might have been associated with drug abuse. Rodriguez rarely assigned
Colunga his own long routes, and instead would make another driver travel with Colunga. Saenz asserted that the truck
he and Colunga drove had already been in service a number of years before Rodriguez purchased it. The truck did not
have a working gas gauge, and the only way to determine how much fuel was in the tank was by guesswork or by
opening the tank and shining a flashlight or inserting a dipstick. Saenz contended that Rodriguez told him that he was
going to sell the truck immediately after they completed their haul in February 1997. Saenz understood that Rodriguez
did not want him to turn the truck in with a full tank of fuel, but instead, wanted him to bring the truck in almost
empty so Rodriguez could Asave a few bucks.@
In addition, Saenz described the accident and explained that he stopped the truck thirty miles or so outside of San
Antonio on IH-10 West. Saenz put on the brakes for both the tractor and trailer. Saenz got out of the truck to check the
amount of gasoline in the tank because he was not sure he had enough left to get him to San Antonio. Saenz exited the
truck and checked all the tires and the level of fuel. Saenz claimed he needed to use the restroom so he urinated next
to the truck, in between the passenger area and the trailer. Suddenly, the truck started to roll forward. Saenz yelled to
Colunga and tried to jump up onto the running board of the passenger side so he could get Colunga=s attention or stop
the truck himself. Saenz missed the running board and landed on his back. Two outside tires ran over Saenz=s legs
causing permanent crippling to one leg and an eventual amputation of the other. Saenz stated that he was outside the
truck and did not know exactly why the truck rolled forward. Colunga later died in 1998.
Saenz=s deposition testimony appears to be contradictory. Saenz claimed, on one hand, that the brakes on the truck
were Aokay,@ and that he did not complain to Rodriguez about any safety features on the truck. Later in the
deposition, Saenz testified that he told Rodriguez that the brakes on the truck were Ano good.@
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Secondly, Saenz offered Rodriguez=s discovery responses and admissions as summary judgment proof. Rodriguez=s
discovery responses and admissions reflected that he had not been involved in prior incidents that were similar to this
case. Rodriguez claimed that the truck in question was inspected annually for its safety sticker and routine maintenance
was performed approximately every 10,000 miles. Not only were tires inspected before every trip, but drivers were
expected to report any tire or other problems which occurred during a trip and make arrangements for repairs as
needed. In addition, Rodriguez purchased the truck in 1995 and then sold it in 1997. Rodriguez stated that his policy
regarding the operational speeds of his vehicles was that contract drivers were expected to obey traffic laws and were
responsible for any tickets received during a trip. Contract drivers were compensated by receiving a commission based
on a percentage of the load paid. Moreover, Rodriguez failed to produce: (1) documentation of insurance policies or
indemnification agreements; (2) documents regarding the truck for five years prior to the incident, including any
maintenance records, repair records, repair bills, invoices, work orders, maintenance checks, condition checklists,
complaints, or receipts; (3) log books (4) records of personnel matters, including driving history, drug tests, supervisor
evaluations, incident or accident reports, and truck records and Department of Transportation records; (5) and a report
on the accident from Saenz.
Next, Saenz offered an insurance endorsement as summary judgment proof. The endorsement, however, indicated a
surcharge for non-receipt of a mechanical inspection dated July 25, 1996. The document bears the notation Anull and
void@ and does not appear to be linked in any way to the truck in question.
Finally, Saenz offered Rodriguez=s video deposition testimony as summary judgment proof. In his deposition,
Rodriguez testified J.D. Rodriguez Produce & Trucking Company was a sole proprietorship that had been in operation
for thirty years as a trucking business, and that he owned the truck that was involved in the accident. Rodriguez
claimed that he did not have the truck=s maintenance records and did not keep copies of the driver=s log books.
Rodriguez acknowledged that the federal regulations which applied to tractor trailers in February 1997 also applied to
his company. Rodriguez never conducted yearly reviews of driving records with state agencies nor did he have a
system of training drivers on his rigs.
According to Rodriguez, Saenz was an independent contractor who, in turn, independently hired Colunga to go with
him on trips. Colunga was operating Rodriguez=s trucks with Rodriguez=s express permission. Rodriguez never gave
Colunga a driving test. Rodriguez knew Colunga had a valid commercial driver=s license, but did not remember ever
seeing it. Rodriguez never checked with the Department of Public Safety to determine if Colunga ever had his driver=s
license suspended or revoked. Rodriguez knew that Colunga was rumored to have taken drugs. Rodriguez had no
formal company drug policy nor did he send drivers to take drug tests. However, Rodriguez had asked drivers if they
had been using drugs.
Rodriguez further testified that Saenz had been driving for him for more than five years and was his best driver.
According to Rodriguez, Saenz did not have a valid commercial driver=s license and that was why Saenz took
Colunga on trips because Colunga had a driver=s license. Rodriguez claimed that under normal conditions, when a
driver stopped on the side of the road to check the truck=s tires, the driver would put on the brakes by pulling out two
buttons, which was the emergency brake. In this case, Saenz told Rodriguez that he did not pull the emergency brake
buttons, but instead pulled the trailer brake handle located under the steering wheel. A trailer brake handle is not
normally used for parking, but instead, used for driving conditions, like ice or snow or driving down hill on a mountain
pass. Rodriguez claimed that trucks would not move if the emergency brake was pulled. Rodriguez also understood
that Colunga was asleep in the cab at the time of Saenz=s accident.
In addition, Rodriguez claimed that the first time he found out that the fuel gauge was not working on the truck was
when he found out about the accident. Rodriguez asserted that he had never encouraged his drivers to drive at night
instead of in the daytime. Saenz used to like to drive at night because he did not have a driver=s license.
Saenz asserts that his affidavit evidence shows a reasonable inference that either Colunga released the brake or the
brakes failed. Saenz argues that there is more than a scintilla of evidence to show that Rodriguez failed to properly
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maintain and inspect his trucks because Rodriguez lacked maintenance records. In addition, Saenz contends that the
evidence shows that Rodriguez violated several of the provisions of the Federal Motor Carrier Safety Regulations and
that such violations are negligence per se. Saenz argues that Rodriguez was negligent in hiring, training, supervising,
and testing his drivers. Furthermore, Saenz asserts that his affidavit raises genuine issues of material fact regarding
malice or gross negligence because it offers more than a scintilla of evidence of conscious or knowing disregard for the
rights, welfare and safety of others.
Despite Saenz=s arguments, after reviewing all of Saenz=s summary judgment evidence, we find that there is no
evidence that Rodriguez proximately caused this accident. Saenz=s argument that his summary judgment evidence
raised a reasonable inference that either the brakes failed or Colunga released the brakes is merely suspicion and
speculation. Saenz=s summary judgment evidence fails to offer even a scintilla of evidence that acts or omissions of
Rodriguez proximately caused the trailer to roll or proximately caused Saenz to slip when he tried to jump back in the
tractor cab. There is no connection between Rodriguez=s lack of maintenance records and the truck rolling. In
addition, even if the alleged violations of the Federal Motor Carrier Safety Regulations are true, this does not defeat
the no-evidence summary judgment. Since proximate cause is an essential element of negligence per se, Saenz must
show by competent evidence that the violations of the statute proximately caused the truck to roll. See Borden, 939
S.W.2d at 250; Yap v. ANR Freight Systems, Inc., 789 S.W.2d 424, 427 (Tex. App.CHouston [1st Dist.] 1990, no
writ). Even if Rodriguez=s deposition testimony contained admissions of violations of any regulations, Saenz failed to
connect the violations with the truck Saenz was driving or point out any evidence in this record that establishes how
the violations are proof that some act or omission of Rodriguez proximately caused the truck to roll. Saenz failed to
make any plausible connection between Colunga=s problems, the lack of documents and the alleged violations and
conduct of Rodriguez upon which to conclude there was even a scintilla of evidence that Rodriguez proximately
caused the accident.
Finally, there is no evidence to support Saenz=s malice claim for exemplary damages. Because Saenz failed to produce
even a scintilla of evidence that Rodriguez proximately caused the accident on his negligence claims, there is not
enough evidence to prove either the objective or subjective elements of gross negligence. See Ellender, 968 S.W.2d at
921. Specifically, there is no evidence of any act or omission by Rodriguez which showed he had actual subjective
awareness of the risk, but proceeded with conscious indifference to the rights, safety, or welfare of others, including
Saenz. See id.
Accordingly, Saenz failed to meet his burden to produce summary judgment evidence that amounts to more than a
surmise or suspicion. Since Saenz suggests only suspicion and speculation as a basis for his conclusion that Rodriguez
proximately caused the accident, the trial court correctly found that Saenz presented less than a scintilla of evidence.
Because the trial court properly granted summary judgment on each of Saenz=s causes of action, we overrule this
issue.
Having overruled each of Saenz=s issues on appeal, we affirm the judgment of the trial court.
Alma L. L pez, Justice
DO NOT PUBLISH
[1]In his first amended original petition, Saenz alleged that Rodriguez was negligent in the following ways: 1) failing
to keep a proper lookout as a person of ordinary care would have kept under a similar circumstance; 2) failing to
inspect and repair or alter brakes; 3) failure to inspect or repair broken gas gauges; 4) ordering Saenz to return the
truck with a nearly-empty fuel tank because Rodriguez was planning on selling the truck upon Saenz=s completion of
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the assignment; 5) forcing Saenz to drive at night; 6) refusing to pay for proper federal permits; 7) failing to keep
maintenance records; 8) failing to test Colunga for substance abuse; 9) requesting that Colunga accompany Saenz on
this route; 10) negligently hiring and retaining Colunga; 11) failing to check Colunga=s physical health; 12) failing to
check Colunga=s driving record; 13) failing to conduct an appropriate background or reference check on Colunga
before and during his work for Rodriguez; 14) negligently supervising Colunga; 15) negligently testing or failing to
test Colunga=s competence and qualifications to operate a tractor-trailer; 16) negligently permitting Colunga, a person
that Rodriguez knew or, in the exercise of due care, should have known, was unfit, incompetent, reckless and/or
impaired to operate a tractor-trailer; 17) failing to inspect the truck; 18) failing to keep the driving mechanisms of the
truck free from interference; 19) failing to make such application of the brakes as a person using ordinary care would
have made under the same or similar circumstance; 20) failing to exercise due care to avoid colliding with Saenz, who
was a pedestrian upon the roadway; and 21) failing to maintain the vehicle in proper working condition. Saenz alleges
that each of the acts and/or omissions, singularly or in combination with others, constitute negligence and negligence
per se which proximately caused Saenz=s injuries.
[2]Rodriguez only addressed the following negligence claims in his motion for summary judgment: 1) failing to keep a
proper lookout; 2) failing to maintain control over the vehicle prior to the collision; 3) operating the vehicle in willful
and wanton disregard for the safety of persons; 4) failing to keep driving mechanisms of Rodriguez Trucking vehicle
free from interference; 5) failing to make such application of the brakes as a person using ordinary care; 6) failing to
exercise due care to avoid colliding with plaintiff who was a pedestrian; 7) failing to give warnings to plaintiff by
sounding the horn when necessary; and 8) failing to maintain the vehicle in proper working condition.
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