Veronica Lopez Devoti v. John Michael Delaney ( 2012 )

Affirmed in Part and Reversed and Remanded in Part and Memorandum Opinion
filed August 28, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00497-CV
VERONICA LOPEZ DEVOTI, Appellant
V.
JOHN MICHAEL DELANEY, Appellee
On Appeal from the County Court at Law No. 3
Galveston County, Texas
Trial Court Cause No. 61,889
MEMORANDUM OPINION
This is a personal injury case arising from an automobile accident. On appeal,
Veronica Devoti contends the trial court erred by rendering a no-evidence summary
judgment in favor of John Delaney because “a fact issue exists as to whether [Devoti] had
no evidence of damages proximately caused by [Delaney’s] negligence.” We affirm in
part and reverse and remand in part.
Background
Devoti was traveling from Galveston to Houston on Interstate 45 on February 15,
2009, when her vehicle was struck by a piece of wood paneling. The debris caused
damage to Devoti’s windshield and the front of her car. The debris came from a trailer
which was towed by Delaney. The trailer was loaded with hurricane-damaged building
materials. In an attempt to avoid flying debris, Devoti swerved her vehicle to the left,
and then made a sharp turn to the right. At the time of the incident, Devoti did not feel
any pain; however, she began feeling pain in her lower back two days later. Devoti
sought medical attention at the emergency room at the Mainland Medical Center on
February 18, 2009.
Devoti sued Delaney on November 23, 2009, alleging that a failure to secure the
load on his trailer caused damages to Devoti. Devoti asserted claims for negligence,
negligence per se, and gross negligence. She asserted that Delaney’s breach proximately
caused injury to her and resulted in the following damages: “(a) property damage to her
vehicle, (b) mental anguish, (c) physical pain and suffering, and (d) economic losses due
to lost wages and medical expenses.”
Delaney filed a no-evidence summary judgment motion on February 24, 2011. In
his motion, Delaney contended that Devoti “lacks essential elements of negligence,
including causation and damages.” He contended that (1) “[t]here is no evidence of
damages or causation concerning [Devoti]’s claim of bodily injury;” and (2) there “is no
evidence of the corresponding aggravated conduct required by statute” to justify
exemplary damages for gross negligence.
Devoti filed a response on April 25, 2011, in which she asserted that she “can raise
a genuine issue of material fact on all the elements of her cause of action for negligence.”
Devoti argued that “a no-evidence summary judgment is inappropriate” on her
negligence claim because she provided sufficient evidence to show that “she suffered
physical injury that was proximately caused by the incident made the basis of this lawsuit
and thereby incurred compensable damages of at least the three following types: (a)
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medical expenses, (b) physical pain and suffering, or (c) mental anguish.” Devoti did not
raise any argument regarding alleged damages for “property damage to her vehicle” and
“economic losses due to lost wages;” she conceded in her response that there is no
evidence to support an award of exemplary damages based on gross negligence.
Devoti attached four exhibits to her response: (1) Delaney’s deposition, in which
he admitted that a piece of debris flew from his truck and struck Devoti’s car; (2) the
accident report; (3) Devoti’s deposition, in which she described the accident, her
subsequent pain, medical visits, and her alleged mental distress; (4) and Devoti’s medical
discharge papers.
In her deposition, Devoti described the accident. She testified that she had been
involved in a previous accident, but stated that she had recovered completely. Devoti’s
medical discharge papers from Mainland Medical Center showed that she was diagnosed
with “muscle strain” and was prescribed Flexeril and Motrin. Devoti did not attach any
documentation relating to medical expenses or lost wages to her response.
Devoti testified that she received treatment from a chiropractor for back pain.
Devoti did not attach any documentation regarding her chiropractor visits to her response,
and she stated in her deposition that she could not remember the chiropractor’s name,
place of business, or the precise amount she paid on each visit. She estimated that each
visit cost “like $45, $50 a visit,” and that she visited the chiropractor “two, three times
max.”
Devoti also testified that her car had been repaired and that she was not “currently
making a claim for any type of property damage.” Devoti testified that she feels “scared
to be driving,” and she does not let her children sit in the front seat of the car because she
is “afraid something will go through the windshield.” She testified that she is “just
constantly being alert” and “just get[s] nervous,” but that she does not have nightmares.
The trial court signed an order granting Delaney’s no-evidence summary judgment
on May 3, 2011. Devoti filed a timely appeal.
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Analysis
In her sole issue on appeal, Devoti contends the trial court erred by granting a no-
evidence summary judgment “because a fact issue exists as to whether [she] had no
evidence of compensable damages proximately caused by” Delaney’s negligence. Devoti
further contends we should reverse the no-evidence summary judgment because she “can
raise a genuine issue of material fact on all the elements of her cause of action for
negligence.”1 Devoti argues she presented more than a scintilla of evidence on causation
and damages for pain and suffering and mental anguish.
I. Standard of Review
The movant seeking a no-evidence summary judgment must specifically identify
the elements for which there is no evidence. Walker v. Thomasson Lumber Co., 203
S.W.3d 470, 473–74 (Tex. App.—Houston [14th Dist.] 2006, no pet.). The trial court
must grant the motion unless the respondent presents evidence raising a genuine issue of
material fact. Tex. R. Civ. P. 166a(i). However, the respondent is “‘not required to
marshal its proof; its response need only point out evidence that raises a fact issue on the
challenged elements.’” Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (quoting
Tex. R. Civ. P, 166a(i) cmt. (1997)). In reviewing the trial court’s decision on a no-
evidence motion for summary judgment, we employ the same test used to determine legal
sufficiency of the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).
We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005); Mendoza v. Fiesta Mart, Inc., 276 S.W.3d 653, 655 (Tex.
App.—Houston [14th Dist.] 2008, pet. denied). We take as true all evidence favorable to
the nonmovant; draw every reasonable inference in favor of the nonmovant; and resolve
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The parties did not distinguish between Devoti’s negligence and negligence per se claims in the
trial court or on appeal. We will treat the parties’ arguments regarding “negligence” as relating to both
theories of liability considering that (1) “negligence per se is merely one method of proving breach of
duty — a requisite element of any negligence claim;” and (2) neither party contested this element. See
Crum v. Goza, No. 14–11–00256–CV, 2012 WL 2928579, at *3 (Tex. App.—Houston [14th Dist.] July
19, 2012, no pet.) (mem. op.).
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all doubts in favor of the nonmovant. Mendoza, 276 S.W.3d at 655. When a trial court
does not specify the grounds for granting summary judgment, we must affirm the
judgment if any summary judgment ground is meritorious. See Star-Telegram, Inc. v.
Doe, 915 S.W.2d 471, 473 (Tex. 1995).
II. Causation
Devoti argues that she raised a genuine issue of fact with respect to causation
because she suffered injuries that “were not preexisting and are the types of injuries in
which general experiences and common sense will enable a layman to determine, with
reasonable probability, the causal relationship between the event and the condition.”
Devoti argues that her “testimony is sufficient to establish a sequence of events which
provides a strong, logically traceable connection between” the accident and her injuries.
Delaney argues on appeal that Devoti was required to provide expert testimony “to
prove causation” because (1) “it is unclear what type of injury” she suffered; (2) “there is
no analysis” of her medical history or prior back injury; and (3) “there are no other
medical diagnostic, treatment or billing records.” We note that Devoti was not required
to “prove causation.” As the nonmovant, Devoti needed only to point out evidence that
raises a fact issue on the challenged element of causation.
The “existence and nature of certain basic conditions, proof of a logical sequence
of events, and temporal proximity between an occurrence and the conditions can be
sufficient to support” a finding of causation without expert evidence. Guevara v. Ferrer,
247 S.W.3d 662, 667 (Tex. 2007). Although expert testimony generally is necessary to
establish causation for medical conditions outside the common knowledge and
experience of jurors, non-expert evidence alone is sufficient to support a finding of
causation “where both the occurrence and conditions complained of are such that the
general experience and common sense of laypersons are sufficient to evaluate the
conditions and whether they were probably caused by the occurrence.” Jelinek v. Casas,
328 S.W.3d 526, 667 (Tex. 2010). ‘“[L]ay testimony establishing a sequence of events
which provides a strong, logically traceable connection between the event and the
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condition is sufficient proof of causation.’” Guevara, 247 S.W.3d at 667 (quoting
Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984)).
In the context of an automobile accident, lay testimony “establishing a sequence of
events which provides a strong, logically traceable connection between the event and the
condition” can support a finding of causation, provided that such conditions “(1) are
within the common knowledge and experience of laypersons, (2) did not exist before the
accident, (3) appeared after and close in time to the accident, and (4) are within the
common knowledge and experience of laypersons, caused by automobile accidents.” Id.
at 667.
The Texas Supreme Court has acknowledged that “causation as to certain types of
pain, bone fractures, and similar basic conditions following an automobile collision can
be within the common experience of lay jurors.” Id. at 668. Reliance on lay testimony
does not require injuries or pain to be “overt” — meaning obvious or immediately
manifested at the time of the accident. Delayed soreness or injury can be “within the
experience and knowledge of laypersons as being caused by car accidents.” See
Figueroa v. Davis, 318 S.W.3d 53, 61-6 (Tex. App.—Houston [1st Dist.] 2010, no pet.)
(plaintiff’s lay testimony that he hit his teeth on the steering wheel during a car accident
and his teeth started crumbling and falling out days later was sufficient evidence to prove
causation; this evidence fell “within the common experience of lay persons so that
causation could stand on lay testimony”); Tex. Dep’t of Transp. v. Banda, No. 03-09-
00724-CV, 2010 WL 5463857, at *2 (Tex. App.—Austin Dec. 22, 2010, pet. denied)
(mem. op.) (plaintiff’s lay testimony sufficient to prove causation where neck and back
injuries were not immediately manifested after the car accident but pain and soreness
occurred later); see also State Office of Risk Mgmt. v. Larkins, 258 S.W.3d 686, 691 (Tex.
App.—Waco 2008, no pet.) (expert testimony not required to prove that push into a wall
caused plaintiff’s back injury — although back pain manifested itself the day after
plaintiff was pushed — because back injuries within common knowledge of the jury to
evaluate causation); Metro. Transit Auth. v. Harris Cnty., No. 14-06-00513-CV, 2008
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WL 4354503, at *8 (Tex. App.—Houston [14th Dist.] Aug. 26, 2008, no pet.) (mem. op.)
(lay testimony established a sequence of events from which jury could infer without the
aid of expert testimony that injuries were caused by bus collision).
Devoti testified in her deposition that her vehicle was struck by a piece of wood
paneling. To avoid the flying debris, Devoti swerved to the left, and then made a sharp
turn to the right. Devoti testified that she did not feel pain at the time of the accident;
however, she began feeling pain in her lower back two days later. She also stated that
she felt something pulling on the “backside” of her right leg and specified that the pain is
in the “lower right back and hip back area.” Devoti testified that she was in so much pain
that she sought medical attention at the emergency room at the Mainland Medical Center
Hospital.
At the emergency room, she told the doctor that she “had been in a car accident a
few days before” and the doctor told her that her pain was “probably just from the pulling
that [she] had done . . . the quick pulling” and that she “was sore.” She also told the
doctor about the pain in her right leg. The discharge papers from the Medical Center
show that Devoti was diagnosed with “muscle strain” and she was given some
medication.
Devoti testified that she saw a chiropractor two or three times after her emergency
room visit because of her back pain. The chiropractor took x-rays, “did some
adjustments,” and “put little needles sticking around you and something vibrating on your
back.” She stated that she could not afford continuing treatment with the chiropractor but
that the chiropractor’s treatment alleviated some of her pain.
Devoti testified that she had been involved in a car accident some time ago but
that her injuries from that accident had completely healed before the accident made the
basis of this appeal. She also testified that she had never been injured at work or
otherwise and that she had never received any treatment for back pain besides the
previous accident. She also testified that she had not “suffered any other injuries or
events that could have caused this pain between the time of the accident and the time that
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it — the pain presented itself.” Devoti stated that her “injuries either came from
swerving to avoid being hit or the actual collision of the plywood” on her windshield.
Devoti’s testimony shows a logical sequence of events and temporal proximity
from which a factfinder properly could infer, without the aid of expert testimony, that the
accident caused Devoti to suffer back and leg pain. The hospital discharge papers show a
diagnosis of muscle strain; and Devoti does not allege complicated injuries involving disc
herniations, bulges, or the like. Devoti’s testimony reflects that she did not have any pain
or injuries to her back or leg prior to the accident at issue. The back and leg pain Devoti
suffered very shortly after the accident can be “within the experience and knowledge of
laypersons as being caused by car accidents.” See Banda, 2010 WL 5463857, at *2; see
also Figueroa, 318 S.W.3d at 61-6; Larkins, 258 S.W.3d at 691; Metro. Transit Auth.,
2008 WL 4354503, at *8.
Based on our review of the record, we conclude that Devoti presented evidence
sufficient to raise a genuine issue of material fact on the element of causation.
III. Damages
1. Pain and Suffering
Devoti argues that she produced more than a scintilla of evidence of pain and
suffering to overcome Delaney’s no-evidence summary judgment motion. Devoti argues
she testified in her deposition that she experienced such intense pain in her back and leg
two days after the car accident that she (1) went to a hospital emergency room where she
was diagnosed with muscle strain; and (2) later went to a chiropractor for treatment of her
back pain.
The presence or absence of physical pain is “an inherently subjective question.”
Enright v. Goodman Distrib., Inc., 330 S.W.3d 392, 397 (Tex. App.—Houston [14th
Dist.] 2010, no pet.) (citing Dollison v. Hayes, 70 S.W.3d 245, 249-51 (Tex. App.—
Texarkana 2002, no pet.)). Devoti as the nonmovant need only present some evidence
that her pain and suffering was proximately caused by the accident. See Castanon v.
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Monsevais, 703 S.W.2d 295, 299 (Tex. App.—San Antonio 1985, no pet.).
Testimony that a plaintiff suffered whiplash that turned into back pain has been
held to provide some evidence “constituting more than a scintilla to support an award for
past pain and suffering.” Id. A plaintiff’s testimony that he suffered and continues to
suffer from back pain following an accident and did not suffer from back pain prior to the
accident has been held legally sufficient to establish pain and suffering. Durham Transp.,
Inc. v. Valero, 897 S.W.2d 404, 415 (Tex. App.—Corpus Christi 1995, writ denied).
Devoti testified in her deposition that she suffered back and leg pain
approximately two days after her accident severe enough to leave work and go to the
emergency room. After her emergency room visit, she sought treatment on two or three
occasions from a chiropractor to alleviate her back pain. She also testified that she
continues to suffer from back and leg pain on occasion; she would continue seeking
treatment from a chiropractor if she could afford it. Devoti stated in her deposition that
she did not suffer from back pain prior to the accident. Her medical discharge papers
indicate that she was diagnosed with a muscle strain shortly after the accident.
Taken together, this evidence is sufficient to raise an issue of material fact with
regard to physical pain and suffering.
2. Mental Anguish
Devoti further argues that the trial court erred in granting no-evidence summary
judgment because she produced more than a scintilla of evidence of mental anguish.
Texas does not recognize a general legal duty to avoid negligently inflicting
mental anguish. City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997). While
negligently inflicted mental anguish may be an element of recoverable damages when the
defendant violates some other duty to the plaintiff, this depends on both the nature of the
duty breached and the quality of proof offered by the plaintiff. Id. For many breaches of
legal duties, even tortious ones, the law affords no right to recover for resulting mental
anguish. Id. In those cases where damages for mental anguish are recoverable, Texas no
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longer requires a physical manifestation of mental anguish, although there are few
situations in which a claimant who is not physically injured by the defendant’s breach of
a duty may recover mental anguish damages. Verinakis v. Med. Profiles, Inc., 987
S.W.2d 90, 95 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).
Texas authorizes mental anguish damages in the following types of cases: “(1) as
the foreseeable result of a breach of duty arising out of certain special relationships, such
as the relationship between a physician and a patient; (2) for some common law torts that
generally involve intentional or malicious conduct such as libel . . . and (3) in virtually all
personal injury cases where the defendant’s conduct causes serious bodily injury.” Id. In
the absence of one of the three above described situations, mental anguish damages may
be recovered in wrongful death and bystander actions. Lions Eye Bank of Tex. v. Perry,
56 S.W.3d 872, 876 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
“Even when an occurrence is of the type for which mental anguish damages are
recoverable,” an award of mental anguish damages must be supported by “direct
evidence that the nature, duration, and severity of mental anguish was sufficient to cause,
and caused, either a substantial disruption in the plaintiff’s daily routine or a high degree
of mental pain and distress.” Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231 (Tex.
2011). Mental anguish requires a showing that a plaintiff suffered a ‘“high degree of
mental pain and distress’” that is ‘“more than mere anxiety, vexation, embarrassment, or
anger.”’ Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996)
(quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)).
Even assuming for the sake of argument that Devoti’s claims are among those for
which mental anguish is recoverable, Devoti did not produce any evidence that she
suffers from a “high degree of mental pain and distress” that is “more than mere anxiety,
vexation, embarrassment, or anger.”
Devoti asserts on appeal that she (1) is scared to “drive more than relatively short
distances” and “now requires someone to ride in the front seat with her at such times;”
and (2) suffers from “visions of flying debris striking her” which causes “her to lose
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sleep.” However, her assertions are not supported by the record. Devoti never testified
that she required someone to ride with her in the front seat or that visions of flying debris
or anything else caused her to lose sleep.
Devoti testified that she feels “scared to be driving.” She stated, “I can drive a
vehicle, but . . . [i]t’s just constantly being alert, as far as what people have in their
vehicles and behind their vehicles, their car.” She also testified that she does not let her
children sit in the front seat of the car because she is “afraid something will go through
the windshield.” She testified that she “just get[s] nervous” but that she does not have
nightmares.
Nothing in Devoti’s testimony establishes that there is “a substantial disruption” in
her “daily routine.” And the emotions Devoti described in her deposition are more akin
to anxiety and vexation than to a “high degree of mental pain and distress.” Thus, we
conclude that the trial court properly granted no-evidence summary judgment with regard
to damages for mental anguish.
Conclusion
Accepting as true all evidence favorable to the nonmovant and drawing every
reasonable inference and resolving all doubts in favor of the nonmovant, we conclude
that Devoti produced more than a scintilla of evidence of causation and pain and
suffering. Devoti did not produce more than a scintilla of evidence of compensable
mental anguish. Therefore, we reverse the trial court’s no-evidence summary judgment
on Devoti’s negligence claims with respect to causation and pain and suffering, and
remand this case to the trial court for further proceedings consistent with this opinion.
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We affirm the no-evidence summary judgment in all other respects.2
/s/ William J. Boyce
Justice
Panel consists of Justices Seymore and Boyce and Senior Justice Yates.3
2
Devoti conceded in the trial court that there is no evidence to support her claim for gross
negligence, and she does not challenge summary judgment on this claim on appeal. Also, Devoti does
not challenge summary judgment relating to damages for “economic losses due to lost wages,” medical
expenses, and “property damage to her vehicle.”
3
Senior Justice Leslie Brock Yates sitting by assignment.
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