Juan Carlos Azua v. Dr Pepper Bottling Company of Texas ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00371-CV

Juan Carlos Azua,

                                                                      Appellant

 v.

Dr Pepper Bottling Company

of Texas,

                                                                      Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 02-00-11366

MEMORANDUM Opinion

      This appeal concerns a personal injury suit. The trial court granted Dr Pepper’s no-evidence motion for summary judgment.  See Tex. R. Civ. P. 166a(i); Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004). Azua appeals.  We will affirm.

      In a no-evidence motion for summary judgment, the non-movant must “produce[] summary judgment evidence raising a genuine issue of material fact.”  Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). “A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced.”  Ridgway at 600.  “More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions.”  Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). “In reviewing a no-evidence summary judgment motion, we examine the record in the light most favorable to the nonmovant . . . .”  Id.

      The sole ground stated in Dr Pepper’s motion was that there was no evidence that it was negligent.  The elements of negligence are: “There must be a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach.”  D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002); see Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 710 (Tex. 2003) (plurality op.).  Dr Pepper’s motion did not contend that there was no evidence of damages.  We assume without deciding that Azua produced some evidence of duty and breach.  Nonetheless, Azua produced no evidence of proximate causation.

      As to proximate cause, Dr Pepper contends only that there was no evidence of foreseeability.  See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). “[T]he foreseeability element of proximate cause . . . requires that ‘the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.’”  Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 292 (Tex. 1994) (quoting 1 Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges PJC 2.04 (1987)) (emphasis in Browning-Ferris); see D. Houston, 92 S.W.3d at 454.  “The foreseeability of a back injury in connection with regular lifting of heavy objects” must be established by “probative evidence, through expert testimony, connecting the injury to the alleged negligence.”  Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996). “Whether proper lifting equipment would have prevented the injury is not a question that can be answered by general experience.”  Id.  The affidavit of Azua’s treating physician, which Azua introduced, does not address the matter; and Azua introduced no other expert evidence.

      We overrule Azua’s issue.  We affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed October 27, 2004

[CV06]