Judy Weirich v. IESI Corporation and Southside Wrecker, Inc. ( 2015 )


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  •                                                                            ACCEPTED
    03-14-00819-cv
    5696714
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    6/16/2015 2:20:43 PM
    JEFFREY D. KYLE
    CLERK
    CAUSE NO. 03-14-00819-CV
    FILED IN
    3rd COURT OF APPEALS
    IN THE   COURT OF APPEALS FOR THE THIRD COURT AUSTIN,      TEXAS
    OF APPEALS
    DISTRICT OF TEXAS, AUSTIN, TEXAS6/16/2015 2:20:43 PM
    JEFFREY D. KYLE
    Clerk
    JUDY WEIRICH,
    Appellant
    VS.
    IESI CORPORATION AND SOUTHSIDE WRECKER, INC.,
    Appellees
    ON APPEAL FROM THE 33RD JUDICIAL
    DISTRICT COURT OF BLANCO COUNTY, TEXAS
    CAUSE NO. CV07387
    BRIEF OF APPELLEE IESI CORPORATION
    THORNTON, BIECHLIN, SEGRATO,
    REYNOLDS & GUERRA, L.C.
    Vaughan E. Waters
    Email: vwaters@thorntonfirm.com
    State Bar No. 20916700
    Michael J. Clark
    Email: mclark@thorntonfirm.com
    State Bar No. 04293300
    100 N.E. Loop 410, Suite 500
    San Antonio, Texas 78216
    Telephone: 210/342/5555
    Fax: 210/525-0666
    ATTORNEYS FOR APPELLEE IESI
    CORPORATION
    ORAL ARGUMENT REQUESTED
    NAMES OF THE PARTIES
    Pursuant to and in compliance with Rule 38, Tex. R. App. P., the parties to this
    appeal are:
    JUDY WEIRICH,
    Appellant
    COUNSEL:                                      ZACHARY P. HUDLER, PC
    Mr. Zachary P. Hudler
    State Bar No. 24032318
    100 E. Pecan St., Suite One
    Johnson City, TX 78636
    Telephone: 830/868-7651
    Fax: 830/868-7636
    zachary@hudlerlaw.com
    IESI CORPORATION,
    Appellee
    COUNSEL:                                      THORNTON, BIECHLIN,
    SEGRATO, REYNOLDS &
    GUERRA, L.C.
    Mr. Vaughan E. Waters
    State Bar No. 20916700
    vwaters@thorntonfirm.com
    Michael J. Clark
    State Bar No. 04293300
    mclark@thorntonfirm.com
    100 N.E. Loop 410, Suite 500
    San Antonio, Texas 78216
    Telephone: 210/342-5555
    Fax: 210/525-0666
    i
    SOUTHSIDE WRECKER,
    INC.,
    Appellee
    COUNSEL:                  THE PETRAS LAW FIRM PLLC
    Mr. George J. Petras, IV
    State Bar No. 15850510
    1504 San Antonio St.
    Austin, TX 78701
    Telephone: 512/334-9583
    Fax: 512/334-9709
    gpetras@petraslawfirm.com
    TRIAL COURT JUDGE:        The Honorable J. Allan Garrett
    424th Judicial District Court
    Blanco County, Texas
    ii
    REQUEST FOR ORAL ARGUMENT
    Pursuant to Rule 39, Tex. R. App. P., Appellee respectfully requests oral
    argument in this case.
    iii
    TABLE OF CONTENTS
    Page
    NAMES OF THE PARTIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (i)
    REQUEST FOR ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iii)
    TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iv)
    LIST OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (vi)
    I.      STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    II.     ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    (1)     ISSUE NO. 1:THIS HONORABLE COURT HAS
    JURISDICTION OVER THIS APPEAL
    (RESPONSIVE TO APPELLANT’S ISSUE NO.
    1).
    (2)     ISSUE NO. 2:THIS HONORABLE COURT DID
    NOT ERR IN GRANTING SUMMARY
    JUDGMENT, INASMUCH AS THE MOTION
    EMBRACED ALL CLAIMS AND CAUSES OF
    ACTION, APPELLANT’S PURPORTED
    SUMMARY JUDGMENT EVIDENCE WAS
    PROPERLY STRICKEN BY ORDER OF THE
    TRIAL COURT, AND APPELLANT FAILED TO
    RAISE A DISPUTED ISSUE OF MATERIAL
    FACT (RESPONSIVE TO APPELLANT’S
    ISSUES NO. 2 AND 3).
    III.    STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    iv
    IV.      SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    V.       ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
    CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
    PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
    CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
    CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
    v
    LIST OF AUTHORITIES
    CASES                                                                                                      PAGE
    Borden, Inc. v. Price, 
    939 S.W.2d 247
    , 250
    (Tex. App.-Amarillo 1997, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
    Carter v. William Sommerville & Son, Inc.,
    
    584 S.W.2d 274
    , 278 (Tex. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
    Haddock v. Arnspiger,
    
    793 S.W.2d 948
    , 950 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
    Nguyen v. Woodley,
    
    273 S.W.3d 891
    (Tex. App.-Houston [14th Dist.] 2008, no pet.). . . . . . . . . . . . . . 9
    RT Realty, Ltd. v. Texas Utilities Electric Company,
    
    181 S.W.3d 905
    , 915-916 (Tex. App.-Dallas 2006, no pet). . . . . . . . . . . . . . . . . 16
    Saenz v. J. D. Rodriguez Produce and Trucking Co.,
    
    2000 WL 33225303
    (Tex. App.-San Antonio 2000,
    no pet.) (not designated for publication).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
    Wortham v. Dow Chemical Company,
    179 S.W.3rd 189, 202-203 (Tex. App.-Houston [14th Dist.], 2005, no pet.). . . . 16
    Zavala v. Trujillo,
    
    883 S.W.2d 242
    , 245 (Tex.App.-El Paso 1994, writ denied). . . . . . . . . . . . . . . . 11
    STATUTES, RULES, AND OTHER AUTHORITIES
    Tex. Civ. Prac. & Rem. Code §41.001(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
    Tex. R. App. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Tex R. Civ. P., Rule 190.3 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
    vi
    Tex. R. App. P. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
    Tex. R. Civ. P 166a(i) ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
    vii
    CAUSE NO. 03-14-00819-CV
    IN THE COURT OF APPEALS FOR THE THIRD COURT OF APPEALS
    DISTRICT OF TEXAS, AUSTIN, TEXAS
    JUDY WEIRICH,
    Appellant
    VS.
    IESI CORPORATION AND SOUTHSIDE WRECKER, INC.,
    Appellees
    ON APPEAL FROM THE 33RD JUDICIAL
    DISTRICT COURT OF BLANCO COUNTY, TEXAS
    CAUSE NO. CV07387
    BRIEF OF APPELLEE IESI CORPORATION
    TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS OF
    THE STATE OF TEXAS, AUSTIN, TEXAS:
    NOW COMES IESI CORPORATION (“IESI”), Appellee, and files this its
    Brief of Appellee, pursuant to and in accordance with Rule 38.2, Tex. R. App. P.; and
    in support thereof would respectfully show this Honorable Court as follows:
    1
    I.
    STATEMENT OF THE CASE
    This is an appeal from a summary judgment in a “road hazard” case.
    Plaintiff/Appellant JUDY WEIRICH (“WEIRICH”) alleges that she suffered both
    property damage to her automobile and bodily injury when a wheel came off a truck
    owned by IESI and struck her vehicle; the IESI truck was not in operation at the time,
    but was being towed by a wrecker owned by Co-Defendant/Co-Appellee
    SOUTHSIDE WRECKER, INC. (“SOUTHSIDE WRECKER”). The 424th Judicial
    District Court of Blanco County, Texas, the Honorable J. Allan Garrett presiding,
    entered a no-evidence summary judgment for IESI on November 12, 2014 and for
    SOUTHSIDE WRECKER on December 8, 2014. C.R., at 179-180, 183-185.
    II.
    ISSUES PRESENTED
    ISSUE NO. 1: THIS HONORABLE COURT HAS JURISDICTION
    OVER THIS APPEAL (RESPONSIVE TO APPELLANT’S ISSUE
    NO. 1).
    ISSUE NO. 2: THIS HONORABLE COURT DID NOT ERR IN
    GRANTING SUMMARY JUDGMENT, INASMUCH AS THE
    MOTION EMBRACED ALL CLAIMS AND CAUSES OF ACTION,
    APPELLANT’S PURPORTED SUMMARY JUDGMENT EVIDENCE
    WAS PROPERLY STRICKEN BY ORDER OF THE TRIAL
    COURT, AND APPELLANT FAILED TO RAISE A DISPUTED
    ISSUE OF MATERIAL FACT (RESPONSIVE TO APPELLANT’S
    ISSUES NO. 2 AND 3).
    2
    III.
    STATEMENT OF FACTS
    Plaintiff/Appellant WEIRICH filed her original petition in this cause on August
    2, 2012, in which she alleged that on or about January 9, 2012 she was traveling
    through Johnson City, Texas on State Highway 290 near Town Creek when her vehicle
    was struck by a wheel that had detached from an IESI garbage truck being towed
    through town by SOUTHSIDE WRECKER. The impact, she alleged, totaled the
    2002 Mazda which she was driving and further caused “severe personal injuries.”
    C.R., at 4-5.
    WEIRICH alleged that IESI failed to use ordinary care and prudence in properly
    maintaining its garbage truck “to assure that it was safe to travel on the highway”, and
    that SOUTHSIDE WRECKER likewise failed to “properly inspect and assure that the
    IESI garbage truck that it was towing was safe on the highway”; the breach of these
    duties, she alleges, proximately caused her injuries.        She further alleged that
    “SOUTHSIDE WRECKER was in the sole custody and control of the garbage truck
    at the time of the incident made the basis of this lawsuit.” 
    Id., at 5.
          Over the course of the next year and a half WEIRICH twice amended her
    petition, adding claims for gross negligence and exemplary damages against both IESI
    and SOUTHSIDE WRECKER. C.R., at 34-37, 47-51. She took no depositions,
    however, in support of any component of recovery. On July 14, 2014 IESI filed its
    second amended answer. C.R., at 84-87.
    On August 22, 2014 IESI filed its no-evidence motion for summary judgment
    and for severance, one day after SOUTHSIDE WRECKER’s filing of a similar
    motion. C.R., at 94-106, 107-126.
    3
    IESI moved for summary judgment on the basis of no evidence (1) that it owed
    a legal duty to WEIRICH under the undisputed facts, (2) that it breached any duty
    owed to WEIRICH, or (3) that any act or omission of IESI was the proximate cause
    of the accident made the basis of WEIRICH’s suit; it further moved for summary
    judgment as to the claims of gross negligence accordingly, as well as on grounds that
    WEIRICH had no “clear and convincing” evidence that any act or omission of IESI
    amounted to gross negligence as defined under Texas law. C.R., at 111.
    IESI pointed out that WEIRICH filed suit on August 2, 2012 (more than two
    years earlier), under Level 2 of Rule 190.3, Tex, R. Civ. P., pursuant to which—as
    established under Rule 190.3(b)(1) and the affidavit of Michael J. Clark, trial counsel
    of record for IESI—the discovery period ended more than eleven months earlier, on
    or about September 7, 2013. “Therefore, ‘adequate time for discovery’ has passed
    and [IESI] may present this no-evidence motion for summary judgment to the court.”
    C.R., at 112, 120.
    On October 17, 2014—one week prior to the hearing on Appellees’ respective
    summary judgment motions—WEIRICH filed her response to those motions, as well
    as her Fourth Amended Original Petition. C.R., at 127-131, 132-139. Her amended
    petition was essentially identical to the most recent version of same, except that she
    added the following to her list of claims for various categories of damages (¶10): “In
    the alternative, Defendants are liable under the legal principles of negligence per se and
    res ipsa loquitur.” C.R., at 129. In her response to the motions WEIRICH freely
    conceded that only her own deposition had been taken during the twenty-six months
    the case had been pending, but urged that there had not been an adequate time for
    discovery. C.R., at 132. (Note: WEIRICH has since abandoned this argument; she
    makes no complaint in her Appellant’s Brief of there not having been an adequate time
    4
    for discovery.) In this response WEIRICH set forth several arguments as to why she
    felt summary judgment would be improper, but the fact that she had just amended her
    petition to add the foregoing allegation relating to negligence per se and res ipsa
    loquitur was not among these arguments. C.R., at 132-136.
    WEIRICH’s response included her own affidavit. She described in this
    affidavit the circumstances of the accident, which she said occurred on or about
    January 9, 2012 as she approached the intersection of Highway 90 and Main Street in
    Johnson City, Texas; her car was struck by the IESI garbage truck wheel/tire while she
    was near the traffic light at that intersection. She also stated in this affidavit as follows:
    “To date, no one who investigated the accident, including the Johnson City Police
    Department, has indicated that the cause of the wheel coming off was anything other
    than IESI failing to maintain its garbage truck and Southside failing to ensure that it
    safely transported the garbage truck.” She stated that “[h]ad IESI properly maintained
    and inspected its garbage truck to ensure that all of its wheels were adequately
    attached, the accident would not have occurred.” C.R., at 138.
    Further included in WEIRICH’s affidavit were the following two paragraphs:
    ...
    4.     I am a reasonable person of reasonable intelligence. I am 61 years
    old. I have driven and maintained automobiles since I became
    licensed to drive at the age of 16 years. While the Defendants
    apparently do not realize or know, or at least claim to this Court
    that they do not realize or know, there is an extreme degree of risk
    in failing to provide the minimum maintenance to ensure that the
    wheels on an automobile are properly attached to the automobile
    as it travels on the Texas roads and Texas highways. There also
    involves an extreme degree of risk in failing to take the minimum
    steps to ensure that a vehicle you tow is safe to tow on the roads
    and highways. Minimally, one who tows a vehicle should make
    sure that the wheels are properly attached. This extreme degree of
    5
    risk is exacerbated when the motor vehicle is a large trash truck as
    the ones we generally see picking up trash from residences.
    5.        IESI, as a trash disposal company, and Southside Wrecker as a
    towing company indeed have actual and subjective awareness of
    the extreme risk involved as discussed above but proceeded with
    conscious indifference to the rights, welfare, and safety of others,
    including but not limited to me.
    ...
    C.R., at 139.
    Both IESI and SOUTHSIDE WRECKER filed objections and motions to strike
    the summary judgment evidence of WEIRICH. IESI pointed out that the above
    referenced statements were conclusory and were not based on the personal knowledge
    of WEIRICH, or of any expertise in any way demonstrated by her. C.R., at 159-164.
    SOUTHSIDE WRECKER moved to strike WEIRICH’s affidavit on similar grounds,
    and further pointed out, as indicated in IESI’s summary judgment motion, that the
    discovery period had ended more than a year prior to the date (October 17, 2014) on
    which WEIRICH filed her response to the summary judgment motions and on which,
    for the first time, she claimed insufficient time for discovery. C.R., at 140-146.
    By order dated November 12, 2014 the trial court sustained IESI’s objections
    to the above-quoted portions of the WEIRICH affidavit and granted its motion to
    strike accordingly. In particular, the court sustained the objection to, and ordered
    stricken: the statement of WEIRICH that “no one who investigated the accident,
    including the Johnson City Police Department, has indicated that the cause of the
    wheel coming off was anything other than IESI failing to maintain its garbage truck and
    Southside failing to ensure that it safely transported the garbage truck”; the statement
    that “[h]ad IESI properly maintained and inspected its garbage truck to ensure that all
    of its wheels were adequately attached, the accident would not have occurred”; and
    6
    the entirety of the above quoted paragraphs 4 and 5 of the affidavit (relating to gross
    negligence/exemplary damages). C.R., at 176-178. By its further order of that same
    date, the trial court granted IESI’s no-evidence summary judgment motion in its
    entirety, ordering the judgment severed from the remainder of the case and made “final
    for all purposes, having disposed of all claims by and between [IESI] and all parties.
    This is an appealable final judgment.” C.R., at 179-180.
    This appeal ensues.
    IV.
    SUMMARY OF THE ARGUMENT
    Having invoked this Honorable Court’s jurisdiction by filing a notice of appeal,
    WEIRICH now argues in her brief, for the first time, that the Court lacks “standing”
    to decide the appeal inasmuch as “the purported judgments do not dispose of all
    claims”—and alternatively that her affidavit, the only evidence attached to her response
    by which she attempts to raise a fact issue, succeeds in doing so because no one has
    ever told her that IESI is not at fault for the accident giving rise to her claims.
    Though one scarcely knows where to begin, the reality is that except for the
    introductory sentences in which WEIRICH explains where she was and what she was
    doing when her car made contact with the loose wheel, there is not a single statement
    contained in her affidavit that is not a wishful speculation or an unfounded conclusion.
    The trial court correctly granted IESI’s no-evidence summary judgment motion—there
    being no actual evidence to oppose it—and the trial court’s judgment should be in all
    respects affirmed.
    7
    V.
    ARGUMENT AND AUTHORITIES
    ISSUE NO. 1 RESTATED: THIS HONORABLE COURT
    HAS JURISDICTION OVER THIS APPEAL
    (RESPONSIVE TO APPELLANT’S ISSUE NO. 1).
    WEIRICH urges that because she filed her Fourth Amended Original Petition
    seven days prior to the hearing on the summary judgment motions, and that that
    pleading raised “additional theories of recovery” (i.e., negligence per se and res ipsa
    loquitur) not addressed in the summary judgment motions, this Honorable Court lacks
    “standing” to hear the case and thus it should be remanded to the trial court.
    Appellant’s Brief, at 5-6.
    WEIRICH seems to conflate, and confuse, the scope of the summary judgment
    motions with the jurisdiction of the trial court to render final judgment thereon. (How
    and why WEIRICH considers this to relate to her notion of “standing” is not clear.)
    The trial court’s judgment stated clearly and succinctly that IESI’s summary
    judgment motion was granted, and that WEIRICH take nothing by way of her suit
    against IESI. The trial court further decreed that that judgment be severed from the
    remainder of the case such that it “is final for all purposes, having disposed of all
    claims by and between [IESI] and all parties. This is an appealable final judgment.”
    C.R., at 179.
    8
    The Fourteenth Court of Appeals stated the point succinctly and well in the case
    of Nguyen v. Woodley, 
    273 S.W.3d 891
    (Tex. App.-Houston [14th Dist.] 2008, no
    pet.) as follows:
    As a general rule, an appeal may be taken only from a final judgment.
    Lehmann v. Har-Con Corp., 
    39 S.W.3d 191
    , 195 (Tex. 2001). A
    judgment issued without a conventional trial is final only if it either
    actually disposes of all claims and parties before the court, or it states
    with unmistakable clarity that it is a final judgment. See 
    id. at 200.
    In the
    case at bar, the December 10, 2007 “Final Summary Judgment” is a final,
    appealable judgment [that] expressly disposes of all claims and all parties,
    stating with unmistakable clarity that it is a final judgment, i.e., it expressly
    states that it disposes of all parties and claims and is final and appealable.
    Nguyen, at 896. That is precisely what we have here: a judgment in a severed action
    which expressly and unequivocally disposes of all claims by and between WEIRICH
    and IESI, and which states “with unmistakable clarity” that it is a final and appealable
    judgment.
    That being the case, this Honorable Court clearly has jurisdiction to review this
    final judgment on appeal. It remains only for this Court to determine whether the trial
    court acted correctly in rendering it.
    ISSUE NO. 2 RESTATED: THIS HONORABLE COURT
    DID NOT ERR IN GRANTING SUMMARY
    JUDGMENT, INASMUCH AS THE MOTION
    EMBRACED ALL CLAIMS AND CAUSES OF
    ACTION, APPELLANT’S PURPORTED SUMMARY
    JUDGMENT EVIDENCE WAS PROPERLY STRICKEN
    BY ORDER OF THE TRIAL COURT, AND
    APPELLANT FAILED TO RAISE A DISPUTED ISSUE
    9
    O F MATERIAL FACT (RESPON SIVE                           TO
    APPELLANT’S ISSUES NO. 2 AND 3).
    A.     Plaintiffs’ Fourth Amended Original Petition adds no new claims or
    causes of action.
    WEIRICH suggests - in addition to her “standing” argument - that summary
    judgment was improper in that Appellees’ respective summary judgment motions did
    not address her newly pled allegations relating to negligence per se and res ipsa
    loquitur (as set 
    forth supra
    ). Appellant’s Brief, at 6. This argument is meritless.
    After an adequate time for discovery, a party may move for summary judgment
    on the ground that there is no evidence of one or more essential elements
    of a claim or defense on which an adverse party would have the burden
    of proof at trial. The motion must state the elements as to which there is
    no evidence. The court must grant the motion unless the respondent
    produces summary judgment evidence raising a genuine issue of material
    fact.
    Rule 166a(i), Tex. R. Civ. P.
    Again, IESI moved for summary judgment under Rule 166a(i), as to all
    negligence claims against it by WEIRICH, “ because [WEIRICH] has no evidence that
    IESI owed a legal duty to Plaintiff under the facts of this case, IESI breached any duty
    owed to Plaintiff, or that IESI’s conduct or omissions were the proximate cause of
    the accident in question” (C.R., at 113) (emphasis added)—and moved for summary
    judgment as well on the gross negligence claims because, in addition, WEIRICH “has
    no ‘clear and convincing’ evidence that IESI’s conduct arises to the level of ‘gross
    10
    negligence’ as defined in Tex. Civ. Prac. & Rem. Code §41.001(11).” C.R., at 111,
    113.
    “Negligence per se” is not a cause of action separate and independent from a
    common law negligence action. Zavala v. Trujillo, 
    883 S.W.2d 242
    , 245 (Tex.
    App.-El Paso 1994, writ denied). It is, rather, 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. Carter v. William Sommerville & Son, Inc., 
    584 S.W.2d 274
    , 278 (Tex. 1979); Borden, Inc. v. Price, 
    939 S.W.2d 247
    , 250 (Tex. App.-
    Amarillo 1997, writ denied). See also, Saenz v. J. D. Rodriguez Produce and
    Trucking Co., 
    2000 WL 33225303
    (Tex. App.-San Antonio 2000, no pet.) (not
    designated for publication), at *2-*3.
    So it is, too, with res ipsa loquitur, which is simply a rule of evidence by which
    negligence may be inferred by the jury, and not a separate cause of action from
    negligence. Haddock v. Arnspiger, 
    793 S.W.2d 948
    , 950 (Tex. 1990); 
    Saenz, supra
    ,
    at *3.
    Indeed, Saenz is particularly instructive. In that case the appellant argued that
    the appellee “failed to amend his motion for summary judgment after Saenz amended
    his original petition to include . . . additional claims of negligence and negligence per
    11
    se, res ipsa loquitur, negligent entrustment and malice . . .” Saenz, at *2 (emphasis
    added) The San Antonio Court of Appeals took a dim view of this argument:
    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 [citing Lampasas v.
    Spring Center, Inc. 
    988 S.W.2d 248
    , 436 (Tex. App.-
    Houston [14th Dist.] 1999, no pet.)]. 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.
    
    Id. (emphasis added).
    WEIRICH, in her amended pleading, effectively added no new claim or cause
    of action; at most she attached new theories of liability to the common law
    negligence/gross negligence claims she had already pled. It was still incumbent upon
    her to produce competent and admissible summary judgment evidence in support of
    12
    the challenged elements of her claim—and, as further discussed infra, she failed utterly
    to do so.
    It should further be noted that, with respect to the res ipsa loquitur allegation,
    WEIRICH herself acknowledges freely that the elements of this theory of recovery are
    that (1) the injury would not have occurred in the absence of negligence, and (2) the
    injury-causing instrumentality was under the sole possession and control of the
    Defendant. Appellant’s Brief, at 6. WEIRICH specifically and expressly avers—both
    in her Fourth Amended Original Petition and in her Appellant’s Brief—that
    SOUTHSIDE WRECKER was in the sole custody and control of the IESI truck at
    the time of the incident made the basis of this action. C.R., at 127, 128 (“Southside
    Wrecker was in the sole custody and control of the garbage truck at the time of the
    incident made the basis of this lawsuit”); Appellant’s Brief, at 6 (“[T]he IESI garbage
    truck was under the sole possession and control of Southside Wrecker at the time of
    the incident”). These judicial admissions confirm, as a matter of law, that WEIRICH
    would be precluded from relying on the doctrine of res ipsa loquitur as against IESI
    in any event.
    B.     WEIRICH’s purported summary judgment evidence was properly
    stricken by the trial court, and no other evidence raised a material fact
    issue.
    13
    WEIRICH points out in her brief, correctly, that “affidavits are routinely
    recognized as competent summary judgment evidence”. Appellant’s Brief, at 7.
    Indeed so—provided, of course, the affidavits comply with the requirements of Rule
    166a and particularly of Rule 166a(f) (“Supporting and opposing affidavits shall be
    made on personal knowledge, shall set forth such facts as would be admissible in
    evidence, and shall show affirmatively that the affiant is competent to testify to the
    matters stated... .”) And therein lies the rub: WEIRICH, in her brief, does not even
    attempt to explain how she had knowledge of the key portions of her affidavit.
    For example: “Had IESI properly maintained and inspected its garbage truck to
    insure that all of its wheels were adequately attached, the accident would not have
    occurred.” C.R., at 138. WEIRICH, of course, cannot and does not demonstrate
    how she is qualified to make that statement. Did the wheel come off because the truck
    had been “improperly” maintained and inspected in the past? Did it come off because
    it was damaged in the earlier accident that caused SOUTHSIDE WRECKER to be
    retained in the first place to tow the truck through Johnson City? Did it come off
    because, unbeknownst to IESI, the bolts that had been used to fasten it were defective
    as received from the manufacturer? Or—the truck having been properly inspected and
    maintained, no damage to the wheel having occurred in the earlier accident, and the
    bolts being good and serviceable parts—did it come off because it was sabotaged by
    14
    a person or persons unknown between the time the truck was disabled and the time the
    truck was secured for towing by SOUTHSIDE WRECKER? WEIRICH does not
    know the answers to these questions because, during the more than two years the case
    had been pending before the summary judgment motions were heard, she never
    bothered to conduct any discovery to attempt to answer them.
    WEIRICH does not claim to be, and is not in fact, a qualified expert in the
    repair and maintenance of large trucks, or specifically as to large truck wheels and
    tires. Whether and to what extent any act or omission of IESI caused or contributed
    to cause the accident is a matter of pure speculation on this record. The wholly
    unsupported (and wholly speculative) conclusion of WEIRICH, to the effect that the
    wheel came loose because IESI failed to maintain or inspect it, is not competent
    summary judgment evidence under Rule 166a(f); any suggestion that the trial court
    erred or abused its discretion in striking that statement is not only meritless but
    specious.
    Even less valid than that stricken statement is the one which immediately
    precedes it in WEIRICH’s affidavit: “To date, no one who investigated the accident,
    including the Johnson City Police Department, has indicated that the cause of the
    wheel coming off was anything other than IESI failing to maintain its garbage truck and
    Southside Wrecker failing to insure that it safely transported the garbage truck.” C.R.,
    15
    at 138. It would have been every bit as truthful—and every bit as relevant—for
    WEIRICH to have stated that no one has ever told her that the cause of the accident
    was anything other than the wheel having been loosened by gremlins. WEIRICH’s
    statement is nothing more than her legal position as to the cause of the accident as
    stated in her pleadings; it is not evidence, or anything resembling evidence, of either
    breach of duty or causation. WEIRICH simply failed to sustain her burden of raising
    a genuine issue of material fact under Rule 166a(i).1
    It is axiomatic, of course, that where there is no evidence to raise a fact issue
    as to a claim of negligence, a claim of gross negligence is invalid as a matter of law.
    See, e.g., RT Realty, Ltd. v. Texas Utilities Electric Company, 
    181 S.W.3d 905
    ,
    915-916 (Tex. App.-Dallas 2006, no pet); Wortham v. Dow Chemical Company,
    179 S.W.3rd 189, 202-203 (Tex. App.-Houston [14th Dist.], 2005, no pet.). So it is
    here with WEIRICH’s gross negligence claim. Moreover, the trial court acted
    correctly and within its discretion in striking WEIRICH’s “gross negligence”
    paragraphs, those being paragraphs 4 and 5 of her affidavit, for the reasons already
    discussed. Once again, WEIRICH has failed to show herself an expert—or to provide
    1
    For purposes of this appeal we need not discuss the hypothetical situation of whether an
    accident report of the Johnson City Police Department would have been competent and admissible
    summary judgment evidence, since WEIRICH did not submit such a report, or any other investigative
    report, as part of her summary judgment response.
    16
    any foundation or basis whatsoever for her purported knowledge—with respect to
    what “actual and subjective awareness” IESI had regarding the “extreme risk” of
    towing a vehicle whose wheel might or might not have been recently inspected (she
    doesn’t know), might or might not have been recently maintained (she isn’t sure),
    might or might not have been damaged (she’d have to speculate), and might or might
    not have been tampered with anonymously (one of the “unknown unknowns”). For
    WEIRICH even to describe such statements as are contained in paragraphs 4 and 5
    of her affidavit—or, indeed, in any of the stricken portions of her affidavit—as
    “summary judgment evidence” borders on sanctionable.
    CONCLUSION
    In view of the foregoing, the trial court acted correctly in striking WEIRICH’S
    “summary judgment evidence” and in granting a no-evidence summary judgment in favor
    of IESI (and, for that matter, in granting summary judgment for SOUTHSIDE
    WRECKER as well). That judgment in favor of IESI is correct and complete as
    entered, and IESI respectfully submits that it should be in all respects affirmed.
    PRAYER
    WHEREFORE, PREMISES CONSIDERED, IESI respectfully prays that the
    judgment of the trial court in its favor dated November 12, 2014, be in all respects
    affirmed; and for such other and further relief, at law or in equity, to which IESI might
    show itself justly entitled.
    17
    Respectfully submitted,
    THORNTON, BIECHLIN, SEGRATO,
    REYNOLDS & GUERRA, L.C.
    100 N.E. Loop 410, Suite 500
    San Antonio, TX 78216
    Telephone: 210/342-5555
    Telecopier: 210/525-0666
    By:    /s/ Vaughan E. Waters
    Vaughan E. Waters
    State Bar No. 20916700
    ATTORNEYS FOR APPELLEE IESI
    CORPORATION
    CERTIFICATE OF COMPLIANCE
    Pursuant to Rule 9, Tex. R. App. P., the undersigned certifies that:
    A.   Brief of Appellee contains 4,068 words.
    B.   Brief of Appellee has been prepared in proportionally spaced typeface using
    Word Perfect in Times New Roman 14 point.
    /s/ Vaughan E. Waters
    Vaughan E. Waters
    18
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of Appellee’s Brief has been
    forwarded to the following this 16th day of June, 2015.
    Mr. Zachary P. Hudler                 VIA FACSIMILE TO 830/868-7636
    Zachary P. Hudler, PC
    P.O. Box 1728
    Johnson City, TX 78636
    Attorneys for Appellant
    Mr. George J. Petras                  VIA FACSIMILE TO 512/334-9709
    The Petras Law Firm
    1504 San Antonio St.
    Austin, TX 78701
    Attorneys for Southside Wrecker, Inc.
    /s/ Vaughan E. Waters
    Vaughan E. Waters
    19
    APPENDIX 1
    6/16/2015                                                      Saenz v. J.D. Rodriguez Produce & Trucking Co. - WestlawNext
    ,A
    Saenz v. J.D. Rodriguez Produce & Trucking Co.
    Court of Appeals of Texas, San Altonlo, December 2B, 2000 Not Reported In S.W.Sd   
    2000 WL 33226303
    (ApplOX. 6 pages)       SELECTED TOPICS
    2000WL33225303                                                       Appeal and Error
    Only the Westlaw citation is currently available.                                      Review
    De Novo Trial Court Grant of Summaiy
    NOTICE: NOT DESIGNATED FOR PUBLICATION. UNDER TX R RAP RULE 47.7,                                            Judgment
    UNPUBLISHED OPINIONS HAVE NO PRECEDENTIAL VALUE BUT MAY BE CITED
    WITH THE NOTATION "(not designated for publication)."                                      Secondary Sourcas
    § 18;15.Necesslty to respond
    Court of Appeals of Texas, SanAntonio.
    3 McDonaU & Cartson Tex. Civ. Prac. § 18:16
    (2d.ed.)
    Emeterio SAENZ, Appellant,
    ...Tradtttonally, Texas has adhered to the
    V.                                                        notion that summary Judgment should not
    come by way of default, even If the
    J.D. RODRIGUEZ PRODUCE AND TRUCKING COMPANY and John D.                                                    nonmovant does not file a response. Rather, a
    summary judgment Is based on the propri..,
    Rodriguez, Appellees.
    CIVIL PROCEDURE AND DISCOVERY
    UPDATE
    No. 04-99-00867-CV. Dec. 29, 2000,
    38 ThsAdvoc, (Texas) 1
    From the 224th Judicial District Court, Bexar County, Texas, Trial Court No. 98-CI-09011;                    ...C1-STABLE OF CONTENTS I.
    INTRODUCTION. 1 II. CIVIL PROCEDURE
    David A. Berchelmann, dr., Judge Presiding.                                                                  UPDATE, 1 A. ATTORNEY IN CHARGE. 1 B.
    CITATION. 1 C. CONTINUANCE. 3 D.
    RICKHOFF, L6PEZ and DUNCAN, JJ.                                                                              DEFAULT JUDGMENT. 4 E. DISMISSAL. 5
    F. FINAL JUDGMENT. 5 G. JUROR C...
    Opinion                                                                                                      SUMMARY JUDGMENTS IN TEXAS:
    STATE AND FEDERAL PRACTICE
    L6PEZ.
    52 Hous. L. Rev. 773
    ...Introduction. 777 Part 1: State Summary
    *f Emeterio Saenz appeals the trial court's summary judgment granted In favor of J.D.                        Judgment Practice. 7791. Procedure. 779
    Rodriguez Produce and Trucking Company and John D. Rodriguez ("Rodriguez"). Saenz                            A. Motton for Summary Judgment. 779 1.
    General Requirements and Uses. 780 Z.
    sued Rodriguez alleging negligence, res ipsa loquitur, negligent entrustment, and malice                     Traditional Motion for Summary Ju...
    (gross negligence). On appeal, Saenz complains that the trial court erred in granting the
    See More Secondary Sources
    summary judgment. We affirm the Judgment of the trial court.
    Briefs
    Factual and Procedural Background
    Brief of Appe lisa Joa McKay
    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                          
    2011 WL 1688722
                                                                                                                                  Robert GREEN and Marilyn Green,
    not an employee of Rodriguez, but worked as an independent contractor for J.D.                               Appellants, V. Joe MCKAY, Appdtee.
    Rodriguez Produce and Trucking, a sole proprietorship owned by Rodriguez. Saenz                              Court of Appeals ofTexas, Dallas,
    March 18,2011
    stopped the tractor-trailer on the improved shouMer of a downhill section of Interstate
    ...One of the Defendant's counsel In this
    Highway 10 ("IH-10") jyst north of Boerne, Texas. At the time Saenz stopped the truck,                       matter, Mtehete Sheets, Is married to State
    Colunga was asleep in the cab of the truck. After Saenz stepped down from the truck, It                      Representath/e Kenneth Sheets. The
    daughter-ln-law of Justice Douglas S. Lang Is
    started to roll. Saenz attempted to get back Into the truck cab, but slipped off the running                 a member of RepresentaUve Sheets's s...
    board, Saenz fell to the pavement and the rear wheels of the tractor ran over his legs.
    Appellants' Brief
    EMS treated Saenz at the scene and transported him to University Hospital. After he was                                                               2
    discharged from the hospital, Saenz developed an infection in his left leg. As a result, his                 
    2013 WL 5973844
                                                                                                                                  KAT/ VENTURE, LTD. and Katy
    leg was ultimately amputated. Saenz also broke his right leg, and inflicted severe injuries                  Management, L.L.C,, Appellants, v.
    CREMONA BISTRO CORP., Appellee.
    to his right foot, left shoulder, left arm and body in general.
    Court of Appeals of Texas, Dallas.
    July 05,2013
    On June 17,1998, Saenz filed his lawsuit against Rodriguez alleging negligence,                               ...FN2. Katy presents a uniflsd statement of
    negligence per se in violation of the Federal Motor Carrier Safety Regulations                               the case and of facts, because the case was
    disposed on summary Judgment and the
    ("FMCSR"), and malice (gross negligence), On July 27,1999, Rodriguez filed a no-                             underlying facts were primarily developed
    evidence motion for summary judgment. On August 16,1999, Sgenz filed a first                                  through affldavNs and documents tha...
    amended original petition alleging additional negligence and negligence per se claims,
    Brief of Appollae
    res ipsa loquitur, and that Rodriguez negligently entrusted the truck to Colunga. On
    
    2013 WL 6973845
                    August 31, 1999, the trial court granted Rodrlguez's no-evidence motion as to the entire                      KAT/VENTURE, LTD. and Katy
    case. On November 12, 1999, the trial court denied Saenz's amended motion to set                              Management, L.L.C., Appellants, v.
    CREMONA BISTRO CORP., Appellee.
    aside the no-evidence summary judgment order and request for leave to open summary                            Court of Appeals of Texas, Dallas.
    judgment evidence for reconsideration; or alternatively, a motion for new trial. On appeal,                   August 02,2013
    ...FN1. The Katy Entities combined the
    Saenz complains that the trial court erred in granting a no-evidence summary judgment
    Statement of Ihg Case and Statement of Facts
    in Rodriguez's favor because Rodriguez's conclusory motion did not address each claim                         In their brief into one section and, accordingly,
    in responding to same herein Appelee
    in his petition and there was more than a sclntilla of evidence to support each and every
    Cremona similarly combines those...
    claim.
    See More Briefs
    Standard of Review
    Trial Court Documents
    We review a summary Judgment de novo. See Ganzales v. American Postal Workers
    LONGHORN LANDSCAPESER
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    Union, AFL CIO, 
    948 S.W.2d 794
    , 797 (Tex.App.-San Antonio 1997, writ denied). A np-                 INC., V. CHRISTIAN DEAL.
    evidence summary judgment is essentially a pretrlal directed verdict, and we apply the              2001 Wl. 35836992
    LON13HORN LANDSCAPE SERVICES, INC.,
    same legal sufficiency standard in rQviewing a no-evidence summary judgment as we
    V, CHRISTIW DEAL.
    apply in reviewing a directed verdict. See Moore v. K Mart Corp., 
    981 S.W.2d 266
    , 269               District Court pf Texas, Harris County
    May 08,2001
    (Tex.App.-San Antonio 1998, no pet,). We review the evidence in the light most favorable
    ...Plainflff, Longhorn Landscape Servtees,
    to the respondent against whom the no-evidence summary judgment was rendered,                       Inc., files this Response to Defendant's Motion
    disregarding all contrary evidence and inferences. See Merreil Daw Pharmaceuticals, Inc.            For Partial Summary Judgment and in
    response would show: The Defendant files hla
    v. Havner, 
    953 S.W.2d 706
    , 711 (Tex.1997); Moore, 981 S.W.2d at269.Ano-evidence                     Motion bas9d upon Texas Business...
    summary judgment Is improperly granted if the respondent brings forth more than a
    Estate Of W. A, WHITMIRE, Dec'
    scintllla of probatlve evidence to raise a genuine Issue of material fact. SeeTEX.R.CIV.P.
    186a(i); see ateo Havner, 953 S.W,2d at 711; Moore, 981 S.W.Zd at 269,Less than a                   2006WL4858Z45
    Estate of W. A. WHITMIRE, Deceast -.
    scintilla of evidence exists when the evidence is so weak as to do no more than create a            District Court of Texas, McMulsn County
    mere surmise or suspicion of a fact. See Gomez v. Tri City Community Hosp., Ltd., 4                 August 10,2005
    S.W.Sd 281, 283 (Tex.App.-San Antonio 1999, no pet.); Moore, 981 S.W.Zd at 269,More                 ...BE IT REMEMBERED that on this day came
    on before this Court for consideration of
    than a scintilla of evidence exists when the evidence rises to a level that would enable            Bessfe MaeWhNmlre's ("Proponenr of the
    reasonable and fair-minded people to differ In their conclusions. See Gomez, 4 S.W.3d at            January 9,2001 Will) Motion for Summary
    Judgment under Rule 166a(i) ofTexas ...
    283; 
    Moore, 981 S.W.2d at 269
    .
    Cynthia TATUM, Indh/idually, ar
    *2 When reviewing a summary judgment granted on general grounds, this court                         Behalf of All Others Similarly S
    Plaintiff, v. JMC HOMES, INC. a
    considers whether any theories asserted by the summary judgment movant will support                 Mortgage Company, Ltd., Defor,—,.—.
    the summary judgment. See S(ate Farm Fire & Cas, Co. v. S,S., 858 S.W.Zd 374, 380
    
    2001 WL 35926755
                  (Tex.1993). When a trial court's order granting summary Judgment does not specify the               Cynthia TATUM, IndlvMyaly, and on Behalf of
    All Others Similarly Situated, Plaintiff, v. JMC
    ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal             HOMES, INC. and JMC Mortgage Company,
    If any of the theories advanced are meritorious, See 
    id. Ltd., Defendants.
                                                                                                                      Dlstrtet Court of Texas, Harris County
    April 30,2001
    Discussion
    ...Plaintiff Cynthia Tatum, Individually and on
    In his first and second issues, Saenz complains that the trial court erred in granting              Behalf of AI Others Similarly Situatod, files this
    summary Judgment because the trial court granted Judgment on claims not addressed in                response to Defendant JMC Homes, Inc.'s
    ("JMC") "no-euidence" motfon for partial
    the summary judgment motion. Specifically, Saenz argues that Rodriguez failed to                    summary judgment, and s...
    amend his motion for summary judgment after Saenz amended his original petition to
    See More Trial Court Documents
    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 ofSaenz'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 Rodrlguez failed to address in his motion.
    A no-evidence motion for summary judgment must specify the elements of the plaintiffs
    plaim as to which there is no evidence. SeeTEX.R.GIV.P. 166a(i); Lampasas v. Spring
    Center, Inc., 988 S.W.2d 42,8, 436 (Tex.App.-Houston [14 th Dlst.] 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 Lampdsas, 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. SeeTEX.R.CIV.P. 166a(i); Lampasas, 988
    S.W.2dat436.
    Rodrlguez'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, Saenzwas 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.
    *3 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, Rodrlguez contends that Saenz failed to produce
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    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. Ph/llips, 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.-EI Paso 1994,
    writ denied). Negllgenpe 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); Borders, Inc. v. Price, 
    939 S.W.2d 247
    , 250 (TexApp.-Amarillo 1997, writ
    denied). The unexcijsed 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 Mwghon 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.-Texarkana
    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 proxlmatety caused injury. See
    Borden, 939 S.W,2(1 at 250.
    Res ipsa loquitur, meaning "the 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. Amspiger, 793 S.W.Zd 948, 9SO (Tex.1990); Schorlemerv, Reyes, 
    974 S.W.2d 141
    , 145 (Tex.App.-San 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 "so 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
    .Accordingty, 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.Zd at 950.
    *4 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 reckless; (4) that the driver was negligent
    on Ihe occasion in question; and (5) that the driver's negligence proxlmately caused the
    accident. See Frito Lay, Inc. v.. Queen, 873 S,W.2d 85, 86 (TexApp.-San Antonio 1994,
    writ denied). Implicit In this criteria is that the driver to whom the vehicle was entrusted
    was the same driver who proxlmately 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, SMbjective awareness of the risk involved, but nevertheless proceed In
    conscious indifference to the rights, safety, or welfare of others, SeeTEX.CIV.PRAC. &
    REM .CODE ANN . § 41,001 (7)(B) C^ernon 1997); Mobll 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 
    Eilender, 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-
    stenographlc deposition; (2) Rodriguez's responses and objections to Saenz's first set of
    interrogatorles, 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-stenographlc 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 Rodrlguez. In the mldd Ie 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
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    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.
    Rodrlguez 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 t?efore 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 Insteaci, wanted
    him to bring the truck in almost empty so Rodriguez couW "save a few bucks."
    *5 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 urlnated 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 Colynga'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 amputatipn 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 "okay," 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 "no good."
    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 indemniftoation 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-recelpt of a mechanical Inspection
    dated July 25,1996. The document bears the notation "null and void" and does not
    appear to be linked in any way to the truck in question.
    *6 Finally, Saenz offered Rodriguez's video deposition testimony as summary judgment
    proof. In his deposition, Rodriguez testified J.D, Rodrlguez 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. Rodrlguez
    claimed that he cjid 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 oompany. Rodrigyez never
    conducted yearly reviews of driving records with state agencies nor did he have a system
    of training drivers on his rigs,
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    According to Rodriguez, Saenzwas an independent contractor who, in turn,
    independently hired Colunga to go with him on trips. Colunga was operating Rodriguez's
    trucks with Roclriguez's express permission. Rodrignez never gave Colynga 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 lipense suspended or revoked, Rodrlguez
    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
    (Irivers If they had been using drugs.
    Rodrlguez 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
    Rodrlguez 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. Rpdriguez claimed that trucks wouM not move if the emergency
    brake was pulled. Rodrlguez also understood that Colunga was asleep in the cab at the
    time ofSaenz'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 property malntgln 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.
    *7 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 scintllla of
    evidence that acts or omissions of Rodriguez proxlmately 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 (he statute proxtmately caused the truck to roll. See
    Borden, 939 S.W.Zd at 2SO; Yap v. ANR Freight Systems, Inc., 789 S.W,2d 424, 427
    (Tex.App.-Houston [1st Dist,] 1990, no writ). Even ifRodriguez'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 howthe violations are proof that some act or omission of Rodriguez
    proximately caused the truck to roll. Saenz failed lo make any plausible connection
    between Colunga's problems, the lack of documents and the alleged violations and
    conduct of Rodrlguez upon which to conclude there was even a scintilla of evidence that
    Rodrigyez 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 pr 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
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    showed he had actual subjective awareness of the rlski 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 Sgenz suggests only suspicion
    and speculation as a basis for his conclusion that Rodriguez proximate)/ 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.
    Footnotes
    In his first amended original petition, Saenz alleged that Rodrlguezwas
    negligent in the following ways; 1) falling 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 Rodrlguez was planning on selling the truck upon
    Saenz's completion of 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) falling 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 Rodrlguez 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 proximatety caused Saenz's
    injuries.
    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) falling 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) falling 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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