Erin Lynn Stow, Katherine Bradley and Intervenor, Brandi Turner Individually and A/N/F C.S.1 and C.S.2., Minors v. Slammin 4, LLC ( 2016 )

Affirmed and Memorandum Opinion filed June 2, 2016.
In the
Fourteenth Court of Appeals
NO. 14-15-00044-CV
ERIN LYNN STOW, KATHERINE BRADLEY, AND INTERVENOR
BRANDI TURNER, INDIVIDUALLY AND A/N/F C.S.1 AND C.S.2.,
MINORS, Appellants
V.
SLAMMIN 4, LLC, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2012-49872
MEMORANDUM OPINION
Appellants Erin Lynn Stow, Katherine Bradley, and Intervenor Brandi
Turner, individually and as next friend of minors C.S.1 and C.S.2 (collectively, the
“Stow appellants”), brought negligence and gross-negligence claims against
Slammin 4, LLC (the “Store”). The trial court granted no-evidence summary
judgment in favor of the Store on all of the Stow appellants’ negligence claims.
The Stow appellants challenge this ruling, arguing: (1) the trial court erred by
granting summary judgment on their negligent-undertaking claims because the
Store did not present this ground in its motion; (2) even if the court could have
granted summary judgment on their negligent-undertaking claims, the Stow
appellants presented sufficient evidence to survive summary judgment; (3) their
negligent-undertaking claims are independent of any Texas Dram Shop claim
against the Store; and (4) the Store owed a legal duty to the Stow appellants even
absent a specific undertaking. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of June 17, 2011, Thomas Raymond Pennington consumed
alcohol at various locations over an approximately four-hour period. Pennington
drank two beers at his father’s house. He then drank several beers at the Longhorn
Bar & Grill. After leaving the bar, Pennington returned to his father’s house,
where he drank about half of a 24-ounce beer and smoked marijuana. Pennington
left his father’s house and took the half-full beer with him. He stopped at the Store
and purchased a six-pack of beer. Pennington placed the unopened six-pack in the
back seat of his truck and drove away from the Store. Pennington’s truck collided
with Kristopher Stow’s motorcycle approximately one minute later. C.S.1,
Kristopher’s daughter, was a passenger on the motorcycle. Kristopher died and
C.S.1 was injured. Kristopher was Erin Stow’s husband and Katherine Bradley’s
son. C.S.2 is Kristopher’s other minor child. Breath and blood testing revealed
that Pennington was intoxicated.1
The Stow appellants filed various claims against multiple defendants,
including Pennington, the bar, and the Store. The claims brought against the Store
1
“Intoxicated” means having an alcohol concentration of 0.08 or more. Tex. Penal Code
§ 49.01(2)(B) (West 2015).
2
were negligence, gross negligence, and a violation of the Texas Dram Shop Act.2
The Store filed a motion for no-evidence summary judgment with regard to the
Dram Shop claims. The trial court granted this motion. The Store filed a second
no-evidence motion for summary judgment with regard to the negligence and
gross-negligence claims. When the Store filed its second no-evidence motion, the
live pleading was the Stow appellants’ fourth amended petition.
At the same time the Stow appellants filed their responses to the Store’s
second motion, they filed their fifth amended petition. In this fifth amended
petition, the Stow appellants reasserted their negligence and gross-negligence
claims, and under a separate section, alleged that the Store was liable based on
negligent undertaking. The Stow appellants cited the Store document “Steps
Required for Responsible Alcohol Beverage Service”—which states that the
Store’s employees are required to notify a manager when a customer shows signs
of intoxication, urge any intoxicated customer wishing to leave the Store to use
alternative transportation provided by the Store, and inform law enforcement
authorities when intervention attempts fail. The Stow appellants alleged that the
Store undertook to perform this service and failed to exercise reasonable care in
performing the service. The trial court granted the Store’s second no-evidence
motion.
The case proceeded to trial against Pennington and the bar. The jury
returned a verdict in favor of Stow and Bradley,3 and the trial court signed its final
judgment based on the verdict. The Stow appellants timely appealed the no-
2
See Tex. Alco. Bev. Code Ann. §§ 2.01–.03 (West 2007).
3
The record reflects that the Intervenor nonsuited all her claims against all defendants
except the Store.
3
evidence summary judgments granted in favor of the Store.4
STANDARD OF REVIEW
We review a trial court’s granting of a summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a trial court’s
order granting summary judgment does not specify the ground or grounds relied on
for its ruling, we must affirm summary judgment if any of the grounds advanced is
meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Oliphint v.
Richards, 167 S.W.3d 513, 516 (Tex. App.—Houston [14th Dist.] 2005, pet.
denied) (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872
(Tex. 2000)).
A no-evidence motion for summary judgment is essentially a motion for a
pretrial directed verdict and is governed by the standards of Texas Rule of Civil
Procedure 166a(i). Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
After an adequate time for discovery, a party without the burden of proof may,
without presenting evidence, seek summary judgment on the ground that there is
no evidence to support one or more essential elements of the nonmovant’s claim or
defense. Tex. R. Civ. P. 166a(i).
The nonmovant must then present more than a scintilla of probative
evidence that raises a genuine issue of material fact supporting each element
contested in the motion. See Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d
167, 172 (Tex. 2003). More than a scintilla of evidence exists when reasonable
and fair-minded persons could differ in their conclusions. Mendoza v. Fiesta Mart,
Inc., 276 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
4
Because the Stow appellants do not present any argument challenging the summary
judgment granted in favor of the Store on their Texas Dram Shop claims, they have abandoned
such claims. See Duerr v. Brown, 262 S.W.3d 63, 69 (Tex. App.—Houston [14th Dist.] 2008, no
pet.).
4
Less than a scintilla of evidence exists if the evidence creates no more than a mere
surmise or suspicion of a fact regarding a challenged element. Id. “We review the
evidence . . . in the light most favorable to the party against whom the summary
judgment was rendered, crediting evidence favorable to that party if reasonable
jurors could, and disregarding contrary evidence unless reasonable jurors could
not.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
Unless the nonmovant raises a genuine issue of material fact, the trial court
must grant summary judgment. Tex. R. Civ. P. 166a(i). If the nonmovant satisfies
its burden of production on the no-evidence motion, then the court cannot properly
grant summary judgment. See Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex.
2009).
ANALYSIS
I. The trial court properly could grant no-evidence summary judgment as
to negligent undertaking.
In their first issue, the Stow appellants contend that because the Store did not
specifically challenge their negligent-undertaking claims, as alleged in their fifth
amended petition, within the Store’s second no-evidence motion, the trial court
erred in granting the motion. The Store asserts that this issue is waived.
We first consider waiver. The Store supports its argument primarily based
on cases where the nonmovant failed to present an objection to a motion for
traditional summary judgment based on unclear or ambiguous grounds.5 The
Store, however, requested summary judgment in its second motion solely on a no-
evidence basis.
While the Stow appellants present their first issue in terms of the inability of
5
See, e.g., Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013); Judwin Props., Inc. v.
Griggs & Harrison, 911 S.W.2d 498, 503 (Tex. App.—Houston [1st Dist.] 1995, no writ).
5
trial courts to grant summary judgment on grounds not presented,6 they essentially
argue that the Store’s no-evidence motion is insufficient as a matter of law because
it did not enumerate the specific elements of negligent undertaking. We do not
require an objection to review this issue. See Cuyler v. Minns, 60 S.W.3d 209,
213–14 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (challenge to no-
evidence summary judgment motion based on legal insufficiency may be presented
for first time on appeal). Although the Stow appellants failed to specially except or
otherwise point out this alleged deficiency in the trial court, they may do so for the
first time on appeal. See id.; see also Knight v. We Care Kids Care, PLLC, No. 14-
13-00493-CV, 2014 WL 2446644, at *3 & n.2 (Tex. App.—Houston [14th Dist.]
May 29, 2014, pet. denied) (mem. op.) (citing Cuyler, 60 S.W.3d at 213–14).7
Having declined to find waiver, we next consider whether the trial court’s
grant of summary judgment on “all negligence claims asserted by” the Stow
appellants was proper based on the Store’s second no-evidence motion.
“A motion for a no-evidence summary judgment must specifically ‘state the
elements as to which there is no evidence;’ there may be no ‘conclusory motions or
general no-evidence challenges to an opponent’s case.’” Specialty Retailers, Inc.
v. Fuqua, 29 S.W.3d 140, 147 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)
6
See Johnson v. Brewer, P.C., 73 S.W.3d 193, 204 (Tex. 2002).
7
See also Garcia v. State Farm Lloyds, 287 S.W.3d 809, 818 (Tex. App.—Corpus
Christi 2009, pet. denied); Holloway v. Tex. Elec. Util. Constr., Ltd., 282 S.W.3d 207, 213 (Tex.
App.—Tyler 2009, no pet.); Bean v. Reynolds Realty Group, Inc., 192 S.W.3d 856, 859–60 (Tex.
App.—Texarkana 2006, no pet.); Cimarron Hydrocarbons Corp. v. Carpenter, 143 S.W.3d 560,
562–63 (Tex. App.—Dallas 2004, pet. denied); In re Estate of Swanson, 130 S.W.3d 144, 147
(Tex. App.—El Paso 2003, no pet.); Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex.
App.—San Antonio 2000, pet. denied); cf. Landers v. State Farm Lloyds, 257 S.W.3d 740, 746
n.8 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (“The Landerses correctly assert that the
majority of courts have held that, even in the absence of a timely-filed response, a party may still
challenge for the first time on appeal the legal sufficiency of a no-evidence motion for summary
judgment.”).
6
(quoting rule 166a(i) and 1997 cmt.). A motion that fails to identify and challenge
one or more essential elements of a claim is insufficient as a matter of law and
cannot sustain a no-evidence summary judgment. Cuyler, 60 S.W.3d at 212–13.
Therefore, the Store would have had to state in its motion that there was no
evidence of one or more essential elements of the Stow appellants’ negligence
claims. See Tex. R. Civ. P. 166a(i); Cuyler, 60 S.W.3d at 212–13.
The essential elements of negligence are: a legal duty owed by the defendant
to the plaintiff, a breach of that duty, and damages proximately caused by that
breach. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 799 (Tex. 2003). Proximate cause has two components: cause-in-fact
and foreseeability. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).8
To prevail on a theory of negligent undertaking, the plaintiff must show: (1)
the defendant undertook to perform services that it knew or should have known
were necessary for the plaintiff’s protection, (2) the defendant failed to exercise
reasonable care in performing those services, and (3) either the plaintiff relied upon
the defendant’s performance or the defendant’s performance increased the
plaintiff’s risk of harm. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 838 (Tex.
2000). In addition, the plaintiff must prove that the defendant’s breach
proximately caused the plaintiff’s injuries. Doe v. Messina, 349 S.W.3d 797, 800
(Tex. App.—Houston [14th Dist.] 2011, pet. denied).
Fourth amended petition. In the Stow appellants’ fourth amended petition,
under the heading “Negligence and Gross Negligence as to the Store,” they alleged
8
Cause-in-fact is established when the act or omission was a substantial factor in
bringing about the injuries, and without it, the harm would not have occurred. IHS Cedars
Treatment Ctr., 143 S.W.3d at 799. Foreseeability means that the actor, as a person of ordinary
intelligence, should have anticipated the dangers that his negligent act created for others. Travis
v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992).
7
that the Store was vicariously liable for the negligence of its employees. The Stow
appellants alleged that the Store’s employees owed duties to them to follow the
Store’s policies and procedures concerning intoxicated persons, namely: to notify a
manager when a customer shows signs of intoxication, to urge any intoxicated
customer to use alternative transportation to depart the Store, and to inform law
enforcement authorities when intervention attempts fail. The Stow appellants
alleged that the Store’s employees breached these duties by failing to take or even
attempt such measures, which proximately caused their injuries and damages.
They further alleged that the Store’s acts and omissions rose to the level of gross
negligence based on the clerk’s actual, subjective awareness of the risk involved
and his proceeding with conscious indifference to the rights, safety, or welfare of
others. The Stow appellants did not include the term “negligent undertaking.”
No-evidence motion. In its second no-evidence motion, the Store asserted
that the Stow appellants could not prove the required elements to recover on a
claim of negligence or gross negligence. The Store laid out the requisite elements
of negligence as: the defendant owed a legal duty to the plaintiff; the defendant
breached that duty; and such breach proximately caused the plaintiff’s injury. The
Store argued the Stow appellants could not produce any evidence that the Store
owed a legal duty to them. The Store also argued the Stow appellants had no
evidence that the Store’s employees failed to follow the Store’s policies and
procedures and, in any event, anything its employees did or did not do “in that
regard would have made any difference in the outcome of the events following
Pennington’s exit from the store.” The Store argued the Stow appellants had no
evidence that anything the Store’s employees did or did not do was a cause-in-fact
of their injuries: “There is no causal connection between the alleged failure of [the
Store’s] employees to follow store policies and procedures and the injuries for
8
which [the Stow appellants] sue.” The Store did not include the term “negligent
undertaking.”
Fifth amended petition. In their fifth amended petition, the Stow appellants
alleged the exact same allegations as in their fourth amended petition under the
same heading “Negligence and Gross Negligence as to the Store.” In addition, the
Stow appellants included a separate heading—“Negligent Undertaking as to the
Store.” To support such “negligent undertaking” claim, they described and
attached a Store document entitled, “Steps Required for Responsible Alcohol
Beverage Service.” The Stow appellants alleged that in accordance with this
document, all employees were required to follow the following procedures:
(5) It is the employee’s responsibility to notify a manager when a
customer shows signs of intoxication or is requesting alcoholic
beverages above the limits of responsible beverage service.
(6) Any intoxicated customer wishing to leave the establishment will
be urged to use alternative transportation provided by the
establishment. (This can be a cab service, designated driver, etc. You
may also want to list incentives for the designated driver, such as free
non-alcoholic beverages, free appetizers, or a discount on a meal or
non-alcoholic beverages.).
(7) All employees are obligated to inform law enforcement authorities
when intervention attempts fail.
The Stow appellants alleged the Store undertook to perform the service that it
knew was necessary for their protection but the Store’s employees failed to
exercise reasonable care to perform such service. The Stow appellants alleged that
such lack of performance increased the risk of harm to them and was a proximate
cause of the collision and resulting damages. They further alleged that the Store
was vicariously liable for the negligence of its employees in failing to follow
policies and procedures. Finally, the Stow appellants alleged that such acts or
omissions rose to the level of gross negligence based on the Store clerk’s actual,
9
subjective awareness of the risk involved and his proceeding with conscious
indifference to the rights, safety, or welfare of others.
While this court acknowledges the need for compliance with rule 166a(i), at
the same time we recognize that “a plaintiff may not side-step a no-evidence
summary judgment merely by filing an amended claim.” Compare Fuqua, 29
S.W.3d at 147–48 (trial court erred in granting summary judgment where amended
petition included new claims conversion and quantum meruit and no-evidence
motion did not address essential elements of those claims), with Lampasas v.
Spring Ctr., Inc., 988 S.W.2d 428, 435–37 (Tex. App.—Houston [14th Dist.] 1999,
no pet.) (corrected op.) (trial court properly granted summary judgment where
amended petition alleged “new variations of [plaintiff’s] original negligence
claims” and no-evidence motion challenged same essential elements of duty,
breach, and causation).
For example, in Lampasas v. Spring Center, the plaintiff asserted in his
original petition that the defendants were negligent in connection with their
causing or failing to prevent a warehouse fire based on a lack of fire protection
equipment. 988 S.W.2d at 435. The defendants’ no-evidence motion stated that
there was no evidence of any duty, breach, or causation. Id. at 436. The plaintiff
then amended his petition to include new variations of negligence based on
insurance-related failures and misrepresentations. Id. at 435–36. In considering
whether the trial court properly could grant the no-evidence motion, we stated:
However, all these new variations in his second amended petition
sound in negligence and are composed of the same essential elements,
duty, breach, and causation, which were already challenged in
appellees’ motion. The issues of the lease and its terms, as well as the
relationships of the various parties, were already clearly joined before
the court. . . . [B]ased on the facts before us, the amended petition
merely reiterates the same essential elements in another fashion, and
10
the motion for summary judgment adequately covers these new
variations.
Id. at 436–37. We therefore concluded that the trial court correctly had granted
summary judgment. Id. at 437.
In their fourth amended petition, the Stow appellants alleged the failure of
the Store’s employees to follow its policies and procedures as the factual basis for
their negligence and gross-negligence claims. Although the Stow appellants
employed the term “negligent undertaking” and quoted the specific language from
the Store’s policy document for the first time in their fifth amended petition, they
alleged exactly the same underlying factual basis for their negligence and gross-
negligence claims—the failure of the Store’s employees to follow its policies and
procedures. They attacked the same failures to notify a manager, urge use of
alternative transportation, and inform law enforcement. Any alleged “variation” in
their fifth amended petition therefore continued to “sound in negligence.” See id.
at 436–37.
In its second no-evidence motion, the Store specifically challenged the
essential elements of duty, breach, and proximate cause (namely, cause-in-fact) of
the Stow appellants’ negligence and gross-negligence claims.9 The Store argued
that there was no evidence of these elements as particularly tied to its policies and
procedures. The Stow appellants included the Store’s policy document in their
9
The Store did not challenge the additional elements of gross negligence. See Mobil Oil
Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998) (“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 magnitude of the potential harm to others, and (2)
the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in
conscious indifference to the rights, safety, or welfare of others.”). However, because a finding
of negligence is a prerequisite to a finding of gross negligence, where a trial court properly
grants no-evidence summary judgment on a plaintiff’s negligence claim, the court also properly
grants summary judgment on a plaintiff’s gross-negligence claim. Messina, 349 S.W.3d at 804.
11
responses to the Store’s no-evidence motion. Plus, the Intervenor’s response
expressly focused on a negligent-undertaking theory based on the Store’s
employees’ failures to follow the Store’s policies and procedures. As a result, the
issues of the Store’s policies and its employees’ alleged failures to follow them
“were already clearly joined before the court.” Id. at 437. Moreover, just because
the Store’s second no-evidence motion did not explicitly use the term “negligent
undertaking” or include the additional factual predicates specific to duty under a
theory of negligent undertaking,10 see Torrington, 46 S.W.3d at 840, this does not
diminish the Store’s specific challenges to the elements of breach and proximate
cause (namely, cause-in-fact) common to both negligence and negligence based on
negligent undertaking.11 In other words, as long as the Stow appellants failed to
meet their burden of production on either of these core elements of negligence, any
theory based on negligent undertaking also necessarily would fail.
We conclude that Lampasas controls.12 As in Lampasas, the Store’s second
10
Such factual predicates here are that the Store undertook to perform services it knew or
should have known were necessary for the Stow appellants’ protection and that the Store’s
performance increased their risk of harm.
11
See Messina, 349 S.W.3d at 800 (“Although a plaintiff asserting a claim for negligent
undertaking must prove additional elements relative to the defendant’s assumption of a duty, the
plaintiff must also prove that the defendant’s breach proximately caused the plaintiff’s injuries.”
(footnote omitted and citing Torrington, 46 S.W.3d at 838)); cf. Williams v. Sable, No. 14-09-
00806-CV, 2011 WL 238288, at *1, 4–5 (Tex. App.—Houston [14th Dist.] Jan. 25, 2011, no
pet.) (mem. op.) (affirming traditional summary judgment on all negligence claims where each of
plaintiff’s negligence, negligence per se, and gross negligence claims included foreseeability
element of proximate cause and defendant conclusively negated foreseeability).
12
See also Ramirez v. First Liberty Ins. Corp., 458 S.W.3d 568, 575 (Tex. App.—El Paso
2014, no pet.) (“Given that making a misrepresentation is a common element in the claims and
Liberty moved for [no-evidence] summary judgment on this common element, we find that
Liberty’s summary judgment motion directed at the alleged violation of Section 541.051(1)(A)
was sufficiently broad to reach the alleged violations of Sections 541.003, 541.051(1)(B), and
541.061.” (citing Lampasas, 988 S.W.2d at 437)); Carpenter v. Campbell Hausfeld Co., No. 01-
13-00075-CV, 2014 WL 1267008, at *7–8 (Tex. App.—Houston [1st Dist.] Mar. 27, 2014, no
pet.) (mem. op.) (concluding that “[defendant’s] original [no-evidence] summary judgment
motion addressing [plaintiff’s] strict products-liability cause of action sufficiently encompassed
12
no-evidence motion specifically challenged essential elements of, and therefore
sufficiently covered, the negligent-undertaking claims first expressly asserted in
the Stow appellants’ fifth amended petition.
We overrule the Stow appellants’ first issue.
II. The trial court properly granted no-evidence summary judgment.
We now turn to the merits. In their second issue, the Stow appellants argue
that they presented sufficient evidence to survive summary judgment on their
negligent-undertaking claims.
Because the trial court’s no-evidence summary judgment fails to specify the
grounds upon which the trial court relied, we must affirm the judgment if any of
the grounds advanced is meritorious. See Carr, 776 S.W.2d at 569; Oliphint, 167
S.W.3d at 516. The Stow appellants primarily focus their briefing on the duty
element of negligent undertaking.13 However, setting aside any discussion of duty,
as long as the trial court properly could have granted summary judgment either
based on a lack of evidence of breach or proximate cause (namely, cause-in-fact),
we must affirm. See Messina, 349 S.W.3d at 800, 804 & n.6 (upholding summary
judgment on proximate cause and not reaching duty).
With regard to breach, the Stow appellants argue that they raised a fact issue
[plaintiff’s] later-added negligence cause of action, and the trial court therefore properly
rendered summary judgment in favor of [defendant] on both of [plaintiff’s] causes of action”
(citing Fuqua, 29 S.W.3d at 147; Lampasas, 988 S.W.2d at 437)); Los Cucos Mexican Cafe, Inc.
v. Sanchez, No. 13-05-578-CV, 2007 WL 1288820, at *3–4 (Tex. App.—Corpus Christi May 3,
2007, no pet.) (mem. op.) (“[A]lthough appellees’ first motion may not have explicitly
challenged Los Cucos’ claim for unjust enrichment/quantum meruit, appellees’ motion for
summary judgment stated there was no evidence of the existence of any proprietary, confidential,
or trade secret information, an element common to the complained-of causes of action. We
therefore hold their first summary judgment motion was broad enough to encompass these later-
pled claims.” (citing Lampasas, 988 S.W.2d at 436–37)).
13
The Stow appellants’ fourth issue also concerns duty, but apart from any specific
undertaking.
13
because neither the Store nor any of its employees performed any part of the
Store’s protocol regarding responsible alcohol beverage service. However,
nowhere within their briefing do the Stow appellants contend that they raised a fact
issue regarding the cause-in-fact component of proximate cause. Instead, the Stow
appellants argue a jury reasonably could infer “from the circumstantial evidence”
that the Store’s breach of its duties “increased the risk of harm” to them.14
Increased risk of harm is one of the additional factual predicates under the duty
element of a theory of negligent undertaking. See Torrington, 46 S.W.3d at 840.
But increased risk of harm is not cause-in-fact, which requires a showing that the
particular defendant’s act or omission at issue was a substantial factor in bringing
about the plaintiff’s injuries and, without it, the harm would not have occurred.
See IHS Cedars Treatment Ctr., 143 S.W.3d at 799. Cause-in-fact requires more
than merely furnishing a condition which makes the injuries possible, see id., or
placing a person in a particular place at a particular time, see Lear Siegler, Inc. v.
Perez, 819 S.W.2d 470, 472 (Tex. 1991).
The trial court could have granted summary judgment on all of the Stow
appellants’ negligence and gross-negligence claims, including their negligent-
undertaking claims, based on a lack of evidence of the cause-in-fact component of
causation. Because the Stow appellants do not attack this independent, alternative
14
The entirety of the Stow appellants’ argument states:
C. Slammin 4’s breach of its duties increased the risk of harm to the
claimants.
The fatal collision occurred less than a minute after Pennington drove away from
the store. Had Slammin 4 arranged for alternate transportation, Pennington would
not have been driving. Had Slammin 4 delayed Pennington’s departure for even
sixty seconds—by having him eat something, or drink a cup of coffee, or wait to
talk to a manager of peace officer—the collision would not have occurred. A jury
can easily, reasonably infer from the circumstantial evidence that Slammin 4’s
conduct increased the risk of harm to the claimants.
14
basis for the trial court’s granting no-evidence summary judgment, we must affirm
the trial court’s summary judgment. See Morrell Masonry Supply, Inc. v.
Brickland Homes, Inc., No. 14-12-00684-CV, 2013 WL 5883799, at *3 (Tex.
App.—Houston [14th Dist.] Oct. 31, 2013, no pet.) (mem. op.) (citing Britton v.
Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st
Dist.] 2002, no pet.)); Anderton v. Cawley, 378 S.W.3d 38, 57 (Tex. App.—Dallas
2012, no pet.) (where appellant does not challenge every ground on which trial
court could have granted no-evidence summary judgment, appellate court must
affirm).
In any event, the Stow appellants do not point to any specific evidence in the
record that could raise a fact issue regarding cause-in-fact. The Stow appellants do
not cite any of the evidence submitted with their no-evidence responses,15 much
less provide any discussion of how any such evidence would meet their burden to
establish a genuine fact issue on cause-in-fact. Nor did they do so in their
responses in the trial court.16 Consequently, we conclude that the Stow appellants
failed to carry their burden to produce more than a scintilla of evidence of cause-
in-fact, and the trial court did not err in granting summary judgment against all of
their negligence claims. See Moon Sun Kang v. Derrick, No. 14-13-00086-CV,
2014 WL 2048424, at *8 (Tex. App.—Houston [14th Dist.] May 15, 2014, pet.
denied) (mem. op.) (affirming no-evidence summary judgment where plaintiffs
only included general citations to evidence in trial court and failed to cite any
15
The record contains the following exhibits submitted with the Stow appellants’
responses: the Store’s policy document, excerpts from the deposition of a DPS trooper, and
excerpts from Pennington’s deposition.
16
Stow and Bradley argued that proximate cause in Dram Shop claims only requires
proving a causal link between Pennington’s intoxication and their injuries, not between the
Store’s conduct and their injuries. However, no Dram Shop claims are at issue on appeal. The
Intervenor did not argue that she raised a fact issue on cause-in-fact and did not cite any evidence
regarding cause-in-fact with regard to the Store’s, as opposed to Pennington’s, conduct.
15
specific evidence on appeal).
We overrule the Stow appellants’ second issue.17
CONCLUSION
Accordingly, we affirm the trial court’s judgment.
/s/ Marc W. Brown
Justice
Panel consists of Justices Boyce, Busby, and Brown.
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Because we affirm the trial court’s summary judgment based on no evidence of cause-
in-fact, we need not address the Stow appellants’ other issues. See Tex. R. App. P. 47.1.
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