Robert Williams v. Russell Parker, Individually and Heir of Lawanna Keeth ( 2015 )

WITHDRAWN 8/27/15
REISSUED 8/27/15
IN THE
TENTH COURT OF APPEALS
No. 10-14-00349-CV
ROBERT WILLIAMS,
Appellant
v.
RUSSELL PARKER, INDIVIDUALLY AND
HEIR OF LAWANNA KEETH,
Appellee
From the 249th District Court
Johnson County, Texas
Trial Court No. C201100640
OPINION
Our opinion and judgment in this appeal dated June 25, 2015 are withdrawn.
This opinion and judgment are substituted in its place.
Lawanna Keeth was killed in a car accident. She crossed into oncoming traffic
and struck a tractor-trailer, head-on. Keeth had diabetes, and her blood sugar was low
at the scene of the accident. She died later at a hospital. The driver of the tractor-trailer,
Robert Williams, was injured in the accident. He sued Russell Parker, individually and
as Keeth’s heir, for negligence, negligence per se, and negligent entrustment. Parker
filed a combined traditional and no-evidence motion for summary judgment which the
trial court granted. Because the trial court erred in granting the motion, the trial court’s
judgment is reversed; and this case is remanded for further proceedings.
SUMMARY JUDGMENT REVIEW
We review a grant of a motion for summary judgment de novo. KCM Fin. LLC v.
Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015); Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013).
In a traditional motion for summary judgment, a movant must state specific grounds,
and a defendant who conclusively negates at least one essential element of a cause of
action or conclusively establishes all the elements of an affirmative defense is entitled to
judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Id. In a no-evidence motion for
summary judgment, the movant contends that no evidence supports one or more
essential elements of a claim for which the nonmovant would bear the burden of proof
at trial. TEX. R. CIV. P. 166a(i); KCM Fin. LLC, 457 S.W.3d at 79. The trial court must
grant the motion unless the nonmovant raises a genuine issue of material fact on each
challenged element. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing TEX. R.
CIV. P. 166a(i)). If the order granting the motion for summary judgment, such as the one
in this case, does not specify the grounds upon which judgment was rendered, we must
affirm the judgment if any of the grounds in the motion for summary judgment is
meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000);
Williams v. Parker Page 2
Lotito v. Knife River Corporation-South, 391 S.W.3d 226, 227 (Tex. App.—Waco 2012, no
pet.).
Further, if a no-evidence motion for summary judgment and a traditional motion
for summary judgment are filed which respectively asserts the plaintiff has no evidence
of an element of its claim and alternatively asserts that the movant has conclusively
negated that same element of the claim, we address the no-evidence motion for
summary judgment first. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004);
Lotito, 391 S.W.3d at 227. The amended motion for summary judgment filed by Parker
addressed the three causes of action raised by Williams’ petition: ordinary negligence,
negligence per se, and negligent entrustment. Parker asserts a traditional motion for
summary judgment as to the ordinary negligence claim, a no-evidence and a traditional
motion for summary judgment as to the negligence per se claim, and a no-evidence
motion for summary judgment as to the negligent entrustment claim. Only the
traditional and no-evidence motion for summary judgment as to the negligence per se
claim addresses the same element. Thus, we will consider the motion for summary
judgment as to each cause of action, separately; and, while considering the negligence
per se cause of action, we will discuss the no-evidence motion for summary judgment
first.
Negligence
Williams alleged in his first amended petition that Keeth failed to use ordinary
care while operating a motor vehicle which was a proximate cause of the accident. The
Williams v. Parker Page 3
elements of a negligence cause of action are the existence of a legal duty, a breach of
that duty, and damages proximately caused by the breach. IHS Cedars Treatment Ctr. of
Desoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). The components of
proximate cause are cause-in-fact and foreseeability. See Western Invs. v. Urena, 162
S.W.3d 547, 551 (Tex. 2005); Mason, 143 S.W.3d at 798.
Parker contends he conclusively established the defense of “unforeseeable
incapacity,” and thus, summary judgment was proper. In support of this defense,
Parker cites to two cases which state:
Unforeseeable incapacity as a bar to liability in negligence is based
upon the principle that one is not negligent if an unforeseeable
occurrence causes an injury. Under traditional negligence theory, it
follows that [the defendant] was not negligent if he were incapacitated
before the collision, the incapacity caused the collision, and his
incapacitation was not foreseeable.
Piatt v. Welch, 974 S.W.2d 786, 788 (Tex. App.—El Paso 1998, no pet.); Harvey v.
Culpepper, 801 S.W.2d 596, 598 (Tex. App.—Corpus Christi 1990, no writ).
Parker contends that there is no more than a scintilla of evidence to defeat his
motion for summary judgment because the evidence presented shows that Keeth “lost
conscious control” over her vehicle. In his brief, Parker scoffs at Williams for confusing
loss of conscious control with unconsciousness. However, Parker misunderstands the
defense of unforeseeable incapacity. The cases Parker cites, and those authorities relied
upon by those cases, are premised on whether or not the person causing the accident
lost consciousness at the time of the accident, not whether the person lost “conscious
Williams v. Parker Page 4
control” of the vehicle at the time of the accident. See Piatt v. Welch, 974 S.W.2d 786, 795
(Tex. App.—El Paso 1998, no pet.); Harvey v. Culpepper, 801 S.W.2d 596, 597-598 (Tex.
App.—Corpus Christi 1990, no writ) First City Nat’l Bank v. Japhet, 390 S.W.2d 70, 74-75
(Tex. Civ. App.—Houston 1965, writ dism’d w.o.j.). See also ANNOTATION, Liability for
Automobile Accident Allegedly Caused by Driver's Blackout, Sudden Unconsciousness, or the
Like, 93 A.L.R. 3d 326, n. 3 (1979) (“Cases within the scope of this annotation are limited
to those in which it was established or hypothesized that a driver lost consciousness
prior to the occurrence of the accident.…”).1 Generally, if the person causing the
accident lost consciousness and that loss of consciousness was unforeseeable, the
defense would apply. See id.
There is some evidence in this case that Keeth did not lose consciousness before
the accident. Williams stated in his affidavit and deposition that right before the
impact, Keeth’s head was positioned straight toward him and her eyes were open.
Also, Williams stated he could see Keeth maneuvering her steering wheel to keep her
vehicle headed straight. Peter Hardy stated in a witness statement given to Cleburne
police that Keeth was in the car in front of him; that she was weaving from one
shoulder of the roadway to the other, but going the normal rate of speed; and that when
Hardy tried to get closer to Keeth to get a license plate number, Keeth’s vehicle speed
up. Further, even if Keeth lost consciousness, there is some evidence that Keeth’s loss of
consciousness was foreseeable. Parker stated in his deposition that he did not know if
1 This particular annotation was cited by the court in Harvey v. Culpepper.
Williams v. Parker Page 5
Keeth took her insulin regularly; Keeth previously had diabetic episodes due to low
blood sugar on at least three occasions in the two years before the accident where she
either lost consciousness or was immobile but with her eyes open; and Keeth had candy
with her to be prepared for such events. This evidence is enough to raise a fact question
as to whether Parker conclusively established his defense. Thus, the trial court erred in
granting Parker’s traditional motion for summary judgment regarding Williams’
ordinary negligence cause of action on the defense as alleged.
Negligence per se
Williams also alleged in his first amended petition that Keeth was negligent per
se in violating a traffic statute, and such negligence was a proximate cause of the
accident. Under the common law, one person owes another the duty to act as a
reasonably prudent person would act under the same or similar circumstances
regarding any reasonably foreseeable risk. Colvin v. Red Steel Co., 682 S.W.2d 243, 245
(Tex. 1984); Great Atl. & Pac. Tea Co. v. Evans, 175 S.W.2d 249, 250-51 (1943); Kelly v.
Brown, 260 S.W.3d 212, 218 (Tex. App.—Dallas 2008, pet. dism’d). However, "[w]here
the Legislature has declared that a particular act shall not be done, it fixes a standard of
reasonable care, and an unexcused violation of the statute constitutes negligence or
contributory negligence as a matter of law." Mo. Pac. R.R. Co. v. Am. Statesman, 552
S.W.2d 99, 103 (Tex. 1977); Kelly, 260 S.W.3d at 218. The doctrine under which courts
rely on a penal statute to define a reasonably prudent person's standard of care is
referred to as negligence per se. Reeder v. Daniel, 61 S.W.3d 359, 361-62 (Tex. 2001).
Williams v. Parker Page 6
Generally, the litigant alleging negligence per se as a ground of recovery must
assume the burden of proving a statutory violation. Moughon v. Wolf, 576 S.W.2d 603,
604 (Tex. 1978); Missouri P. R. R. Co. v. American Statesman, 552 S.W.2d 99, 102
(Tex.1977); L. M. B. Corporation v. Gurecky, 501 S.W.2d 300 (Tex.1973). The typical
submission of such a case includes an issue inquiring whether the party charged is
actually guilty of legislatively proscribed conduct along with an issue inquiring
whether the violative conduct was the proximate cause of the accident. Moughon v.
Wolf, 576 S.W.2d at 604. The violator may excuse his conduct, but he must produce
some evidence of a legally acceptable excuse. Id. at 604-605. Based upon the
Restatement of Torts, Second (1965), section 288A, the Texas Supreme Court has
recognized an actor’s incapacity as a legally acceptable excuse. Impson v. Structural
Metals, Inc., 487 S.W.2d 694, 696 (Tex. 1972). Such "incapacity" could be a driver who is
rendered physically incapable because of a health issue. Id.
Prior to asserting the grounds for his no-evidence and traditional motion for
summary judgment as to Williams’ negligence per se cause of action, Parker, relying on
the Amarillo Court of Appeals’ opinion in Hoppe v. Hughes, 577 S.W.2d 773, 775 (Tex.
Civ. App.—Amarillo 1979, writ ref’d n.r.e.), placed the burden on Williams, as an
element of Williams’ case, to prove the alleged statutory violation was “unexcused.”
The Amarillo Court was incorrect in placing the burden on a plaintiff claiming
negligence per se that the violation was unexcused. The Supreme Court’s opinion in
Wolf places the burden to prove the violation was excused on the violator; in this case,
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Parker. Wolf, 576 S.W.2d at 604-605.
Parker asserted there was no evidence Keeth’s statutory violation was
unexcused. Because Williams did not have the burden to prove this element, the trial
court’s granting of Parker’s no-evidence motion for summary judgment as to this cause
of action was erroneous. See TEX. R. CIV. P. 166a(i); Kelly v. Brown, 260 S.W.3d 212, 218
(Tex. App.—Dallas 2008, pet. dism’d) (“appellees may not obtain summary judgment
under rule 166a(i) based on the elements of their negligence per se affirmative
defense.”).
Parker also contended that because his expert’s affidavit and the Cleburne Police
Department investigation established Keeth was incapacitated due to her loss of
“conscious control” and that incapacitation was unforeseeable, Parker was entitled to a
judgment as a matter of law on the traditional motion for summary judgment. As
stated previously, Parker incorrectly placed the burden on Williams to prove whether
the violated statute was unexcused. Thus, Parker presumed his evidence conclusively
negated an essential element of Williams’ negligence per se cause of action. Whether
the violated statue was excused or unexcused was not an essential element Williams
had to prove; thus, the trial court erred in granting a traditional motion for summary
judgment on the basis that Parker conclusively negated an essential element of
Williams’ negligence per se cause of action.2
2We do not decide whether Parker conclusively established all the elements of this affirmative defense
because he did not raise this as a ground for summary judgment in this motion. A trial court cannot
Williams v. Parker Page 8
Negligent Entrustment
Lastly, Williams alleged in his first amended petition that Parker was “guilty of
negligent entrustment” because he knew or should have known Keeth was a “negligent
and reckless driver.” 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 the occasion in question; and (5) that the driver's negligence
proximately caused the accident. Williams v. Steves Industries, Inc., 699 S.W.2d 570, 571
(Tex. 1985). Parker asserted there was no evidence of the second through the fifth
element.
Parker submitted evidence with his motion for summary judgment that Keeth
had a valid driver’s license. He then asserted that a valid driver’s license is “prima facie
evidence of [Keeth’s] competence to drive, which negates the entruster’s knowledge of
incompetence or recklessness.” This is only partially correct. The possession of a valid,
unrestricted driver's license is evidence of a driver's competency absent any evidence
to the contrary. Batte v. Hendricks, 137 S.W.3d 790, 791 (Tex. App.—Dallas 2004, pet.
denied); Avalos v. Brown Auto. Ctr., Inc., 63 S.W.3d 42, 48 (Tex. App.—San Antonio 2001,
no pet.); Bartley v. Budget Rent-A-Car Corp., 919 S.W.2d 747, 752 (Tex. App.—Amarillo
grant summary judgment on grounds that were not presented. Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex.
2013).
Williams v. Parker Page 9
1996, writ denied).
Williams attached Parker’s deposition testimony to his response to Parker’s
motion for summary judgment. In that testimony, Parker stated that he did not know if
Keeth took her insulin regularly; Keeth previously had diabetic episodes due to low
blood sugar on at least three occasions in the two years before the accident where she
either lost consciousness or was immobile but with her eyes open, including an incident
one month prior to the accident where she passed out at Parker’s house due to low
blood sugar; and Keeth had candy with her to be prepared for such events. This is
some evidence to rebut the presumption of competency and create a fact question as to
whether Keeth was an incompetent driver and whether Parker knew or should have
known she was an incompetent driver.
Parker then relied on his arguments attacking Williams’ negligence cause of
action to assert there was no evidence Keeth was negligent because she had lost
conscious control of her actions and that loss of conscious control was unforeseeable.
Parker’s assertion of unforeseeable incapacity is a defense which Williams had no
burden to prove or disprove. Presenting a no-evidence motion for summary judgment
on an element which a nonmovant has no burden to prove is improper. See TEX. R. CIV.
P. 166a(i); Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 838 (Tex. App.—Dallas 2005, no
pet.); The Honorable Judge David Hittner & Lynne Liberato, Summary Judgments in
Texas, 54 BAYLOR L. REV. 1, 62 (2002) (stating that "[a] party may never properly urge
a no-evidence [motion for] summary judgment on the claims or defenses on which it
Williams v. Parker Page 10
has the burden of proof").
Accordingly, because there is a fact question regarding Keeth’s incompetency as
a driver and whether Parker knew or should have known about that incompetency, the
trial court erred in granting Parker’s motion for summary judgment as to Williams’
negligent entrustment cause of action.
CONCLUSION
Having found that the trial court erred in granting judgment on all grounds
raised by Parker, we sustain Williams’ issues on appeal, reverse the trial court’s
judgment, and remand this case to the trial court for further proceedings.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and remanded
Opinion delivered and filed July 23, 2015
[CV06]
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