Jennifer Walter v. Carrie Ann Box ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-06-174 CV ____________________

JENNIFER WALTER, Appellant

V.

CARRIE ANN BOX, Appellee

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On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-165,453

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MEMORANDUM OPINION

Jennifer Walter appeals from the trial court's grant of Carrie Ann Box's motion for summary judgment. Walter sued Box and the settling defendants for negligence stemming from a multi-vehicle accident. We affirm.

Background

Walter and Box were involved in a chain-reaction, rear-end collision on August 6, 1999. While traveling north on the East-Tex Highway in Beaumont, Texas, Walter stopped her vehicle in response to traffic. Soon after, Ralf M. Hare, driving a United Rentals truck, hit Walter's car from behind. Seconds later, the vehicle driven by Box impacted the back of the United Rentals truck causing it to again strike Walter's rear bumper. Ambulances transported Walter and Box to the hospital. Box's impact with the United Rentals truck caused her to lose consciousness. At the scene, and at the emergency room, Walter complained of dizziness, numbness in her fingers and toes, right shoulder pain, neck pain, and upper and lower back pain. The investigating police officer gave Box a citation for failure to control speed.

Walter sued Box for personal injuries she attributes to Box's impact with the United Rentals truck. Box filed a no-evidence motion for summary judgment. Box's motion asserts that Walter presented no evidence with respect to the causation element of her negligence claim. Walter contends that her testimony sufficiently raises a fact issue on the cause of her injuries. Walter attached her deposition transcript, Box's deposition transcript, and the police report to her response to Box's motion. Standard of Review for No-Evidence Summary Judgment

We review the trial court's granting of a no-evidence motion for summary judgment under the standards set forth in Rule 166a(i) of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 166a(i). To defeat a no-evidence summary judgment motion, the non-movant must produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged by the movant. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The non-movant raises a genuine issue of material fact by producing "more than a scintilla of evidence" establishing the challenged element's existence. Id. More than a scintilla of evidence exists when the evidence is such that reasonable and fair-minded people can differ in their conclusions. Id. at 601. If "'the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.'" Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). In determining whether the non-movant has produced more than a scintilla of evidence, we review the evidence in the light most favorable to the non-movant, crediting such evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

In a negligence case, the negligent act must be the proximate cause of the injury. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995). To establish causation in a personal injury case, a plaintiff must prove that the defendant's conduct caused an event and that this event caused the plaintiff to suffer compensable injuries. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). "The causal nexus between the event sued upon and the plaintiff's injuries must be shown by competent evidence." Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984).

"Proof of causation cannot 'turn upon speculation and conjecture.'" Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996) (quoting Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970)). A possibility that an accident may have contributed to claimed injuries is not sufficient to show causation; a reasonable probability is required. Smith v. Sw. Bell Tel. Co., 101 S.W.3d 698, 702 (Tex. App.-Fort Worth 2003, no pet.). Lay testimony is sufficient to establish the required causal nexus only in those cases in which general experience and common sense enable a lay person to determine, with reasonable probability, the causal relationship between the event and the condition. Morgan, 675 S.W.2d at 733. Generally, lay testimony that establishes a sequence of events that shows a strong, logically traceable connection between the event and the condition is sufficient proof of causation. Id.

When Box hit the United Rentals truck, she undeniably caused Walter's car to be hit a second time by the truck. Nevertheless, to defeat summary judgment, Walter must also demonstrate some evidence that this second impact caused Walter to suffer compensable injuries. See Burroughs Wellcome, 907 S.W.2d at 499. Only Walter's personal injuries are at issue in this case because she did not sue Box for property damage.

Walter's extensive history of prior and subsequent accidents and injuries shows she had previously complained of virtually all of the ailments for which she seeks compensation from Box. Moreover, although Walter claimed at her deposition that the impact attributed to Box caused Walter's symptoms to increase, she also testified to the contrary, as follows:

[Defense Counsel:] Now you allege that your injuries were caused by both impacts?

[Walter:] I don't know.

[Defense Counsel:] Well, do you have any way of knowing which impact caused your injuries?

[Walter:] No.

Additionally, when questioned by her own attorney, Walter declined to relate her seeking medical treatment to the impact at issue: instead, she stated that she sought medical attention solely because of her pain. Walter never sought to change her deposition testimony regarding her knowledge of the cause of her complaints. See Tex. R. Civ. P. 203.1(b).

A lay witness may testify about what caused her pain, and when this testimony establishes a strong, logically traceable connection, the testimony is evidence of the causation of an injury. See Morgan, 675 S.W.2d at 733. However, in this case, Walter testified that she did not know the cause of her complaints, and she declined to attribute her seeking medical attention to the impact at issue. Additionally, Walter provided no expert testimony linking her complaints to that impact. As a result, Walter presented no evidence that Box's impact with the United Rentals truck caused Walter's injuries. See Smith, 101 S.W.3d at 702 (affirmed directed verdict because no evidence presented on causation element when plaintiff testified that she did not know what was causing her pain).

Having reviewed the evidence in the light most favorable to Walter and disregarded all contrary evidence and inferences, we hold the trial court properly granted Box's summary judgment. See Mack Trucks, 206 S.W.3d at 582. Accordingly, we overrule Walter's issue and affirm the trial court's judgment.

AFFIRMED.

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HOLLIS HORTON

Justice

Submitted on November 29, 2006

Opinion Delivered April 26, 2007

Before Gaultney, Kreger, and Horton, JJ.