Jerry C. Hamilton v. XTO Energy, Inc. ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00269-CV
JERRY C. HAMILTON APPELLANT
V.
XTO ENERGY, INC. APPELLEE
----------
FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
----------
MEMORANDUM OPINION1
----------
I. Introduction
In four issues, Appellant Jerry C. Hamilton appeals the trial court’s
summary judgment for Appellee XTO Energy, Inc. We affirm.
1
See Tex. R. App. P. 47.4.
II. Background
On November 7, 2006, Hamilton, a Bobcat Pressure Control, Inc.
employee, was working at an oil and gas well site with Craig Childers, an
employee of Mercer Well Service, when he injured his hand.2 Hamilton sued
XTO, the well site operator, for negligence.3 XTO filed two combined traditional
and no-evidence motions for summary judgment, which the trial court granted. 4
This appeal followed.
III. Summary Judgment
In four issues, Hamilton complains that the trial court erred by granting
summary judgment for XTO because genuine issues of material fact exist as to
whether (1) XTO was a property owner of the well site as defined in civil practice
and remedies code chapter 95; (2) Hamilton’s injury arose from the condition or
use of an improvement to real property under chapter 95; (3) XTO retained
control of the well site and had actual knowledge of the danger or condition that
2
When Childers turned on the engine of the rig, Hamilton’s hand became
trapped between a flat piece of metal and a cable.
3
Hamilton sued Bobcat but later nonsuited it; the trial court subsequently
allowed XTO to designate Bobcat as a responsible third party. Hamilton also
sued Mercer. See Hamilton v. Tex. CES, Inc., No. 02-10-00142-CV, 2011 WL
1435238, at *1 (Tex. App.—Fort Worth Apr. 14, 2011, no pet.) (mem. op.)
(affirming summary judgment for Mercer on limitations grounds).
4
The trial court granted the no-evidence portion of XTO’s first motion but
did not specify upon which no-evidence ground or grounds the motion was
granted. When it granted XTO’s second motion, it also did not specify upon
which grounds.
2
resulted in Hamilton’s injury; and (4) XTO owed Hamilton legal duties. The first
three issues are all premised on Hamilton having a viable negligence claim,
without which the application of chapter 95 is of no significance. See, e.g.,
Pasadena Ref. Sys., Inc. v. McCraven, Nos. 14-10-00837-CV, 14-10-00860-CV,
2012 WL 1693697, at *4 (Tex. App.—Houston [14th Dist.] May 15, 2012, no pet.)
(mem. op.) (stating that when chapter 95 applies, a property owner will not be
liable for negligence claims arising from failure to provide a safe workplace
unless the exception under section 95.003 is met).
In both of its motions for summary judgment, XTO argued that Hamilton
was unable to present any competent evidence to show that XTO owed Hamilton
a legal duty, that XTO had breached any alleged duty, or that the alleged breach
had proximately caused Hamilton’s injury.5 See Nabors Drilling, U.S.A., Inc. v.
Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (stating that a negligence claim
requires showing that the defendant owed the plaintiff a legal duty, a breach by
the defendant of that duty, and damages proximately caused by the breach).
When the trial court’s judgment rests upon more than one independent ground,
the aggrieved party must assign error to each ground, or the judgment will be
5
XTO also argued that there was no evidence of actual control by XTO,
that it had no duty to warn of open and obvious dangers, and that there was no
evidence that it had failed to adequately warn of a dangerous condition of which
it had actual knowledge. In the traditional portion of its motions, XTO argued that
civil practice and remedies code chapter 95 protected it from liability in that XTO
had no control over Hamilton’s work and that the alleged dangerous condition on
the well site was open, visible, and known to Hamilton. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 95.001–.003 (West 2011).
3
affirmed on the ground to which no complaint is made. Scott v. Galusha, 890
S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ denied). Therefore, we need
not address the issues Hamilton raises because the trial court did not specify
upon which ground summary judgment was granted and because Hamilton has
failed to adequately address the other grounds upon which the trial court could
have granted summary judgment, in particular, XTO’s no-evidence ground with
regard to proximate cause.
Hamilton’s causation discussion on appeal falls within his overarching
review of legal duties, in which he merely asserts that either fatigue or an
incompetent company man caused his injury. But Hamilton provides no
explanation of, or citations to authority to support, how any of these alleged
breaches proximately caused his injury. See Tex. R. App. P. 38.1(i) (stating that
a brief must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and the record).6 And when, as here, a trial
court’s order granting summary judgment does not specify the ground or grounds
relied on for its ruling, summary judgment will be affirmed on appeal if any of the
theories presented to the trial court and preserved for appellate review are
meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216
(Tex. 2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
6
As pointed out in the dissenting opinion, Hamilton does include citations to
the record.
4
Further, even if Hamilton had raised and had provided an analysis of
proximate cause in his fourth issue, the components of proximate cause—cause
in fact and foreseeability—cannot be established by mere conjecture, guess, or
speculation. Doe v. Boys Club of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex.
1995); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (op. on reh’g).
The test for cause in fact is whether the negligent act or omission was a
substantial factor in bringing about injury and without which the harm would not
have occurred. Doe, 907 S.W.2d at 477; McClure v. Allied Stores of Tex., Inc.,
608 S.W.2d 901, 903 (Tex. 1980). Cause in fact is not shown if the defendant’s
negligence did no more than furnish a condition that made the injury possible.
Doe, 907 S.W.2d at 477; see also Hang On II, Inc. v. Tuckey, 978 S.W.2d 281,
284 (Tex. App.—Fort Worth 1998, no pet.).
Likewise, conclusory statements by an expert are not sufficient to defeat
summary judgment. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v.
Mason, 143 S.W.3d 794, 803 (Tex. 2004). An expert’s opinion cannot rest on the
expert’s subjective interpretation of the facts but must be supported by the facts
in evidence. See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 239–40 (Tex.
2010); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003). For
example, in Wal-Mart Stores, Inc. v. Merrell, the supreme court held that an
expert’s testimony that halogen lamps can cause fires did not establish that the
particular lamp in question caused the fire at issue in the case. 313 S.W.3d 837,
838, 840 (Tex. 2010) (holding that a doctor’s conclusion that failure of the lamp
5
was “‘consistent with the facts of [the] case’” amounted to little more than
speculation). And we have previously held that expert opinions and conclusions
on causation not supported by facts in the summary judgment record are based
on speculation and conjecture. See Hanson v. Greystar Dev. & Constr., LP, 317
S.W.3d 850, 854–55 (Tex. App.—Fort Worth 2010, pet. denied) (stating that,
absent factual support, the expert’s opinion that the plaintiff’s fall on stairs
happened because of irregularities in those stairs and because of inadequate
lighting was conclusory and constituted no evidence); see also Connaway v. Vill.
Farms, L.P., 200 S.W.3d 353, 357–58 (Tex. App.—Dallas 2006, no pet.) (holding
that testimony attributing dust in area around collision as coming from a farm—
without evidence connecting the dust to the farm—was conclusory and
speculative and showed only that the witnesses believed that the dust came from
the farm).
A. Hamilton’s Summary Judgment Responses and Evidence
1. Response to XTO’s First Motion
In Hamilton’s response to the no-evidence portions of XTO’s first motion,
he asserted that XTO breached three legal duties: (1) the duty of ordinary care
to provide a reasonably safe workplace and to adequately help employees when
Frank Cummings, an independent contractor who supervised the site for XTO as
contract completion foreman, left the scene before the injury occurred; (2) the
duty of ordinary care with regard to providing rules and regulations for safety; and
(3) the duty to protect independent contractors when it retained some control
6
over the details of their work. As on appeal, Hamilton contended that XTO’s
failure to supervise work hours, to ensure adequate rest—particularly with regard
to proper training of supervisors in the face of fatigue information available
through the federal government—and to provide for a supervisor on site at all
times constituted breaches of legal duties owed to him and proximately caused
his injuries.
a. Fatigue Evidence
Hamilton attached a copy of Plain Language About Shiftwork, a 1997
booklet published by the United States Department of Health and Human
Services,7 and he attached a portion of his deposition in which he testified that it
7
The public health summary at the beginning of the thirty-nine page booklet
states:
What are the hazards?
Shiftworkers and night workers often are tired and sleepy
because of their work schedule. Being overly tired makes it difficult
to concentrate, which increases the possibility of errors or accidents.
This can be a risk both to the worker and to the public. The stress of
shiftwork also can aggravate health conditions, such as heart
disease or digestive disorders.
How do these hazards occur?
Working at night makes it difficult to get enough sleep. Sleep
after night work usually is shorter and less refreshing or satisfying
than sleep during the normal nighttime hours. Brain and body
functions slow down during the nighttime and early morning hours.
The combination of sleep loss and working at the body’s low-point
can cause excessive fatigue and sleepiness. This makes it more
difficult to perform well, which increases the risk of accidents. Also,
shiftwork can be stressful because of frequent switching from a day
7
was typical for Bobcat employees to work twelve to fourteen hours per day or
more, although “[i]t could be two hours, it could be 20.” Hamilton also attached
his affidavit, in which he stated that he would wake up between 4:00 a.m. and
5:00 a.m. to drive an hour to Bobcat’s office, then drive ninety minutes to two
hours to the job site, and then work twelve hours, on average, before making the
return trip. Hamilton stated that it was not uncommon to work sixteen-to-
seventeen-hour days.
Hamilton also attached some of XTO’s invoices and job tickets showing
workers’ hours, although none of these showed either Hamilton’s hours or the
hours worked by Childers, the Mercer employee who engaged the rig’s engine
and trapped Hamilton’s hand. Several of the work tickets were from companies
other than Bobcat or Mercer.8
to night schedule and because of separation from family and friends.
These stresses can be harmful to health.
How can these hazards be avoided?
Many workers cannot avoid night or rotating shiftwork.
Therefore, this booklet suggests ways of coping with shiftwork.
Organizational or group approaches include redesigning the work
schedule, redistributing the workload, improving the work
environment, and instituting programs to improve worker awareness.
Individual approaches include improved sleep strategies, exercise
and diet programs, and relaxation techniques.
8
Some of the various work tickets for hours worked that were billed to XTO
list “Ronny Perry Construction” or “ORBIT Construction” at the top; show
inconsistent time ranges, varying from 1.5 to 14 hours daily between October 16,
2006, and November 6, 2006; and do not list workers who were present at the
accident.
8
Invoices bearing Mercer’s logo show five workers, none of whom were
Childers—although some of whom may have been present at the incident—
working from 8:00 a.m. to 8:30 p.m. on October 4, 2006; from 5:30 a.m. to 8:30
p.m. on October 5, 2006; from 4:30 a.m. to 9:30 p.m. on October 6, 2006; and
from 4:30 a.m. to 8:00 a.m. on October 9, 2006. A Mercer invoice for October 4–
9, 2006 billed XTO for 39.5 cumulative hours for “rig and crew,” for an additional
8.5 hours of travel, and for an additional 39.5 hours for an additional crewman for
the job. The incident involving Hamilton occurred on November 7, 2006, and
there is no work ticket from that day included in the record.
Although this evidence suggests that employee fatigue can cause
accidents and that circumstances existed under which Hamilton could have been
fatigued, Hamilton made no such assertion in his affidavit and did not assert that
his fatigue led to the accident. More importantly, none of this evidence even
raises an inference, much less a fact question, about whether Childers was
fatigued or whether Childers’s fatigue, if any, led to the accident.
b. Supervision Evidence
Hamilton attached the XTO incident investigation report, in which the
following were listed as “key facts” and “associated circumstances or conditions”:
Two tasks were being performed at the same time (use of
sandline/winchline)[;]
Hand signals were used but the meanings were mis-identified. A
thumbs up was given by one of the BobCat hands in the basket
indicating to hold the present position, but operator 1 viewed it as
needing to lift it up and thus have the clutch en-gauged [sic][;]
9
Pre-job safety meeting was held, but this particular hazard/causal
factor was unusual and not discussed[;]
This job requires 2 companies to work together-equipment and
people.
Sandline is not used very often on rigs anymore[;]
Throttling up the winch line causes the sand line to throttle up
when en-gauged. [sic] The air lines are tied together[; and]
Language barrier.
In a portion of his deposition, Hamilton described how his hand was caught
and complained that XTO failed to train its employees because Cummings
should have been on site at all times during the operation and “[s]hould have
never left and went and voted. He should have stayed there until the job was
done and made sure everybody was all right.”
Hamilton also attached portions of the deposition by James Yeager, an
XTO employee, who testified that Cummings was on site to look over XTO’s
interests by seeing that the companies XTO had hired were doing the job they
had agreed to do. Yeager said that if Cummings saw something that needed to
be changed, he was to talk to the contractors’ supervisors and that if Cummings
saw “something there[,] he would shut it down.” Yeager admitted that Cummings
was not on site at the time of the incident but said that when Cummings had left
was “the best time to go” because Bobcat and Mercer were between processes
and “all they [were] doing [was] whipping out their own equipment” and not
“pulling pipe.”
10
Yeager said that with regard to the incident and better communications,
“there was maybe some trouble with hand signals . . . and things like that that
they don’t maybe totally understand. Somebody made a mistake and so it could
be something like that, and like I said, some of them don’t speak English very
well.” He said that multi-tasking could have caused the problem because the
Mercer and Bobcat employees were “running the wench line first and they were
running the sand line at the same time,” when they could have finished one and
then worked on the other. Yeager added that he had been told that “it was
unusual for them to be doing it this way and so, you know, they are running the
equipment down at the same time—at the same time running the sand line back
here.”9
With regard to this evidence, Hamilton does not make any attempt to
explain why his injury would not have occurred if Cummings had been at the
work site. For example, he does not explain how Cummings’s presence would
have, or even could have, prevented the miscommunication in hand signals to
which the accident report attributed his injury.
9
Yeager also testified that XTO’s contractors were responsible for
providing safety and training for contractor employees as far as “their tasks, the
equipment, and everything—everything that they do. They are required to train
their own employees.” Hamilton also included a copy of the contract between
Cummings and XTO, which makes clear that Cummings was himself an
independent contractor working month-to-month with XTO since August 22,
2005.
11
2. Response to XTO’s Second Motion
While XTO’s first summary judgment motion was pending, Hamilton added
more negligence claims against XTO, alleging that XTO had failed to use
ordinary care in providing employees adequate help in the performance of work
and that XTO was liable for the negligent hiring, supervision, training, and
retention of its employees and contractors because it had hired employees
without administering drug tests to applicants, without requesting that applicants
provide information for background checks, and without requiring formal training
or prior experience in the oil and gas field for supervisory positions such as
consultants and contract foremen.10 Specifically, Hamilton complained that
Cummings was not on site when the incident occurred, that Cummings did not
have any experience pertaining to snubbing—the activity that had led to
Hamilton’s injury—and that at least two other accidents pertaining to snubbing
units occurred while Cummings was the contract foreman.
In response to XTO’s second motion, Hamilton attached the same
evidence as he had to his earlier response, but he also attached the following
additional evidence pertinent to the alleged duties and breaches: the master
10
Additional claims recited again by Hamilton had already been raised in
his previous petition.
12
services contract between XTO and Bobcat,11 excerpts from Cummings’s
deposition, and an affidavit by Dr. Merrill M. Mitler, Ph.D., a sleep expert.
a. Additional Fatigue Evidence
In his deposition, Cummings stated that twelve hours was a normal work
day and that he could not say that fatigue would be a factor at the end of such a
day.
In his affidavit, Dr. Mitler testified about his research into fatigue and stated
that he had reviewed the XTO incident investigation report, Bobcat’s first report
of injury, Hamilton’s affidavit, and Mercer’s daily work reports for other workers
dated October 4–9, 2006, and had concluded the following:
Mr. Hamilton was involved in a work and commuting schedule that
limited the amount of rest he could obtain, producing fatigue that
would be sufficient to impair attention and motor coordination[;]
The reported cause of Mr. Hamilton’s injury was human error. The
work environment at [the well site] involved heavy equipment and
multiple operators who spoke different languages and used hand
signals to coordinate their actions. In such environments, worker
11
The master services contract provided that Bobcat was responsible,
among other things, for providing “all necessary safeguards for the protection of
all aspects of the Work and all persons employed directly or indirectly by the
Contractor, Subcontractors or third parties.” It also stated that XTO’s
responsibilities were to furnish materials and equipment that it had agreed to
furnish, provide access to the site, and furnish necessary construction utilities.
And it specified that Bobcat would comply with all federal, state, and local laws,
“including, but not limited to . . . the Occupational Safety and Health Act and all
those requirements and regulations relating in any way to employment practices
and protection of the environment,” as well as all applicable XTO rules and
regulations relating to the safety and security of persons and property, and plant
work hours, among other things.
13
fatigue can be expected to increase the risk of inattention and
human error resulting in work-related injuries[;]
Fatigue was a contributing cause to the human errors leading up to
Mr. Hamilton’s injury[; and]
Mr. Hamilton’s employer and/or site supervisor were negligent in
allowing their workers to work excessive hours. Such excessive
work schedules produce fatigue and lead to increases in human
error of the kind that were responsible for Mr. Hamilton’s injury.
Dr. Mitler based his opinion on Hamilton’s affidavit, the work hours that
some of the workers at the site had performed in the month before Hamilton’s
injury, and the accident’s timing near the end of Hamilton’s work day. However,
none of Hamilton’s evidence reflects that he or any other witness to the injury or
subsequent injury investigation suggested that fatigue had anything to do with
the accident or the miscommunication identified in XTO’s incident investigation
report as the accident’s root cause.
Further, by itself, Dr. Mitler’s subjective conclusion that fatigue was a
contributing cause to the accident constitutes nothing more than mere
speculation.12 See TXI Transp. Co., 306 S.W.3d at 239. And none of the
evidence establishes that Hamilton was actually fatigued, that Childers was
fatigued, or that fatigue is what caused Childers to be inattentive or to
misinterpret the signal that led to Hamilton’s injury.
12
Because there is no evidence raising a genuine issue of material fact as
to fatigue as the injury’s cause in fact, we do not reach foreseeability. See Doe,
907 S.W.2d at 477; Travis, 830 S.W.2d at 98.
14
b. Additional Supervision Evidence
In his deposition, Cummings admitted that he had no formal training with
regard to rig operation and had never done any snubbing, but he also remarked
that he would do everything he could to keep a snubbing unit from being rigged
up on a well because such units were inherently dangerous, citing two other
accidents that involved a snubbing unit. And he stated that he had worked in the
oil and gas industry for the majority of his working life and had obtained his
experience on the job. Cummings said that he had contracted with XTO after e-
mailing his resume to XTO’s production superintendant when Cummings learned
that XTO was looking for well-site consultants and then had an informal meeting
with XTO. He provided references but did not know if XTO had checked them
and said that XTO did not drug test him or ask for his criminal background.13
Cummings said that he had spoken with XTO’s production superintendant before
leaving the site to vote on the day of the accident and that there was “about
another hour’s worth of work to do” when he left.
Hamilton’s argument that the incident could have been prevented had
Cummings been present, properly trained, and experienced in snubbing lacks
support in the record to raise a fact issue with regard to proximate cause.
13
Cummings acknowledged a 1972 possession of marijuana conviction for
which he was pardoned in 1984 and a DWI in the late 1990s. He also admitted
that he was a recovering alcoholic and that his last drink had been on May 17,
1998. Cummings stated that XTO’s production supervisor knew that he was a
recovering alcoholic.
15
Hamilton would have needed to produce more than a scintilla of evidence to
show that the incident would not have happened but for Cummings’s absence,
lack of training, or experience in snubbing, which he has not done, and he
produced no evidence to show how the presence of a properly trained and
experienced on-site supervisor would have prevented the miscommunication
attributed to causing the accident. See Doe, 907 S.W.2d at 477; McClure, 608
S.W.2d at 903. None of Hamilton’s evidence raises a fact question about
whether or how Cummings’s absence or other perceived inadequacies caused
the accident.14
B. Conclusion
Assuming without deciding that XTO owed Hamilton one or more of the
duties that he claims and breached those duties, based on the record in this
case, as set out above, Hamilton failed to produce more than a scintilla of
probative evidence that any such breach proximately caused his injury. See
Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009) (stating that a no-evidence
summary judgment is not proper if the nonmovant brings forward more than a
scintilla of probative evidence that raises a genuine issue of material fact). Dr.
Mitler’s report constitutes mere speculation that fatigue contributed to Hamilton’s
injury, and none of Hamilton’s other evidence raises a fact issue on either of the
14
To the contrary, even if Cummings was inadequate to perform his job, his
absence would have negated any damage that could have otherwise been
caused by his inadequacies.
16
alleged breaches—inadequate supervision by Cummings and worker fatigue—
that he claims proximately caused his injuries. Therefore, the trial court did not
err by granting XTO’s motions for summary judgment on the no-evidence ground
pertaining to proximate cause, and we affirm the summary judgment on this
ground. See Martinez v. ACCC Ins. Co., 343 S.W.3d 924, 928 (Tex. App.—
Dallas 2011, no pet.) (“If the appellant does not challenge one of the grounds for
summary judgment, an appellate court may affirm the summary judgment on that
ground alone.”). We overrule Hamilton’s fourth issue and need not address his
remaining issues with regard to XTO’s affirmative defense. See Tex. R. App. P.
47.1.
IV. Conclusion
Having overruled Hamilton’s fourth issue, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: WALKER, MCCOY, and GABRIEL, JJ.
WALKER, J., filed a dissenting opinion.
GABRIEL, J., concurs without opinion.
DELIVERED: September 27, 2012
17
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00269-CV
JERRY C. HAMILTON APPELLANT
V.
XTO ENERGY, INC. APPELLEE
----------
FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
----------
DISSENTING MEMORANDUM OPINION1
----------
I respectfully dissent from the majority opinion’s holding that appellant
Jerry C. Hamilton failed to adequately brief the proximate-causation element of
his negligence claim.2 Furthermore, to the extent that the majority nonetheless
1
See Tex. R. App. P. 47.4.
2
Hamilton mentioned or discussed the causation element multiple times
(on at least seven separate pages) in his brief, asserting that his injuries were
“caused by human error brought on by fatigue,” that “[f]atigue caused the
accident which forms the basis of this suit and Hamilton’s injuries, according to
Hamilton’s expert witness, Dr. Merrill Mitler,” that “XTO’s actual knowledge of the
addresses the merits of Hamilton’s issues and holds that he failed to present any
evidence of causation, I also dissent.
The majority thoroughly discusses the evidence presented by Hamilton to
establish causation—a United States Department of Health and Human
Services’s 1997 booklet titled Plain Language About Shiftwork; the affidavit and
deposition testimony of Hamilton; deposition testimony of the contract completion
foreman on the well site, Frank Cummings, and of XTO employee James
Yeager; XTO’s invoices and job tickets showing the long hours worked on the
well site; XTO’s incident investigation report; and the affidavit of sleep expert Dr.
Merrill M. Mitler, Ph. D. I will not rehash that evidence here. Nevertheless, the
majority concludes that, assuming XTO owed Hamilton a duty and breached that
duty, Hamilton “failed to produce more than a scintilla of probative evidence that
any such breach proximately caused his injury.” Id. at 16.
fatigue of its employees and failure to warn of the dangers of fatigue at the site
proximately caused Hamilton’s injuries,” that “XTO’s breach of duty to provide a
reasonably safe workplace caused Hamilton’s injury,” that “XTO’s breach of not
providing its employees with adequate help in the form of a competent company
man proximately caused Hamilton’s injuries,” that XTO’s breach of its “duty to
hire, supervise, train or retain competent employees . . . proximately caused
Hamilton’s injuries,” and that the early departure of the foreman—“who was
allegedly responsible for all the work done at the site”—“was the proximate cause
of the injuries suffered by . . . Hamilton.” Hamilton also specifically discussed his
summary judgment evidence of causation with citations to the record. See Tex.
R. App. P. 38.1(i); Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (“Appellate
briefs are to be construed reasonably, yet liberally, so that the right to appellate
review is not lost by waiver.”).
2
Applying the appropriate standard of review, examining the entire record in
the light most favorable to Hamilton as the nonmovant, and indulging every
reasonable inference and resolving any doubts against XTO’s motion, I would
hold that Hamilton brought forward more than a scintilla of probative evidence
that raises a genuine issue of material fact as to the causation element of his
negligence claim. See Tex. R. Civ. P. 166a(i) & cmt.; Smith v. O’Donnell, 288
S.W.3d 417, 424 (Tex. 2009); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.
2008); Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004).
I would then address Hamilton’s remaining issues. Because the majority opinion
does not, I respectfully dissent.
SUE WALKER
JUSTICE
DELIVERED: September 27, 2012
3