Affirmed and Plurality, Concurring, and Dissenting Opinions filed March 22, 2005

Affirmed and Plurality, Concurring, and Dissenting Opinions filed March 22, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-02-00680-CV

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JIMMIE REINICKE, INDIVIDUALLY AND AS LEGAL REPRESENTATIVE

OF THE ESTATES OF KAREN REINICKE, DECEASED,

MAX L. REINICKE, DECEASED, AND DERRICK A. REINICKE, DECEASED, Appellants

V.

AEROGROUND, INC., Appellee

On Appeal from the Probate Court No. 2

Harris County, Texas

Trial Court Cause No. 308,512-401

C O N C U R R I N G   O P I N I O N

I disagree in part and agree in part with the plurality opinion we issue today.  I disagree that negligent activity and premises liability theories apply to this case.  Instead, I agree with the dissent that the controlling case law permitted the trial court to submit this case to the jury under a general negligence theory of liability.  However, I agree with the decision to affirm the trial court’s judgment notwithstanding the verdict because Mr. Reinicke failed to raise a fact issue on proximate cause.  For this reason, I concur in the result reached by the plurality opinion.

The trial court properly submitted this case under general negligence principles

This case arose out of the tragic car accident that occurred when Mrs. Reinicke’s van collided with an Aeroground tractor-trailer rig that was parked on the shoulder of Highway 290.  For the reasons that follow, I believe the trial court properly submitted the case to the jury using a general negligence charge.  

The plurality characterizes this case as one of premises liability rather than ordinary negligence because Aeroground’s allegedly negligent acts, including running out of gas and parking the rig on the shoulder, had ended before the accident occurred.  In order for Mr. Reinicke to recover for these actions, the majority would require him to proceed under a premises liability theory based upon a dangerous condition Aeroground created on the shoulder of Highway 290.  But, I believe this case is controlled generally by ordinary negligence principles, and specifically by proximate causation.  Case law from the Texas Supreme Court itself compels this conclusion.

In Bell v. Campbell, the Court was faced with a similar factual situation. 434 S.W.2d 117, 118 (Tex. 1968). While driving along a highway, Bell came upon a traffic accident.  Id. A trailer—originally attached to a truck involved in the collision—had disengaged and lay overturned in one lane of the highway.  Id. Bell and others stopped and attempted to remove the trailer from the highway.  Id.  at 119. As Bell worked to move the overturned trailer, another car struck the trailer, injuring Bell.  Id.  Faced with the dilemma of deciding whether the initial accident caused Bell’s injuries, the Texas Supreme Court did not turn to premises liability theory. Mentioning premises liability not once, the Court relied instead on ordinary negligence principles and specifically focused on causation saying, “the controlling question is one of causation.” Id. at 118.  And, while the initial accident made the subsequent collision possible, that fact was not the primary indicator of causation.  Rather, the primary indicator was whether “all forces involved in or generated by the first collision had come to rest and no one was in any real or apparent danger therefrom.” Id. at 120.  Thus, almost forty years ago, the Texas Supreme Court confirmed that general negligence principles apply to a setting like the one here.  See id. at 118–123.

Only ten years ago, the Court reaffirmed this approach in Union Pump Co. v. Allbritton.  898 S.W.2d 773, 774 (Tex. 1995).  Allbritton sued the manufacturer of a pump that started a fire at a chemical company’s facility, saying that she would not have been injured if the pump had not started the fire.  Id. Allbritton, one of the chemical company’s employees, had responded to the fire.  Id.  After the fire was extinguished, she fell from a pipe rack that was wet from substances used to douse the fire.  Id. Again, the case proceeded under a general negligence theory and again, the Texas Supreme Court mentioned premises liability theory not once.  Id. at 774–77.  Again, when faced with an accident that occurred after the initial negligent activity had ended, the Court looked to whether the forces generated by the fire had come to rest by the time Allbritton was injured and thus, whether as a matter of law, the forces were “too remote to constitute legal causation.”^[1]  Id. at 774. 

In short, then, in neither Bell, nor Union Pump (nor Lear Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex. 1991) for that matter), did the Court turn to premises liability theory.  Instead, it looked to general negligence principles and specifically to proximate causation.  That is what we also must do.^[2]        

The trial court properly granted judgment notwithstanding the verdict in Aeroground’s favor

Thus, as the Texas Supreme Court did in Bell and in Union Pump, to resolve the issue before us we must turn to proximate causation and consider if the actions and omissions of Aeroground that the Reinickes complain of—running out of gas and parking the rig on the shoulder—“had run their course and were complete.”  Bell, 434 S.W.2d at 122.  The evidence in the trial below was undisputed that “no one was in any real or apparent danger therefrom.”  Id. at 120.  As one eye witness testified, Aeroground’s “truck was way off the side of the road. . . . The third lane was clear.”  Many cars passed the trailer without hitting it.  To hit the trailer, Mrs. Reinicke’s van had to go off the road onto the shoulder. In fact,  when the van hit the trailer, it was moving back toward the third lane of traffic, after having left the lane and traveled onto the shoulder. Certainly, the presence of Aeroground’s trailer on the shoulder of the highway furnished the condition that made this unthinkable accident possible; had the trailer not been there, the van might have returned to the third lane without incident.  But, had the van not left the lane of traffic, it would have passed the trailer, as did many cars before it, without injury to it or its precious passengers.  So, although the trailer created a condition that sealed the fate of the van and its passengers, it was only a remote cause.  The van directly caused the accident by departing from its route in the third lane and moving onto the shoulder where the trailer lay, off the road. Union Pump, 898 S.W.2d at 776 (“Legal cause is not established if the defendant’s conduct . . . does no more than furnish the condition that makes the plaintiff’s injury possible.”).

The dissent understandably rejects this conclusion.  All of us would like to place blame on someone for the unspeakable events that transpired.  But the law will not allow us to do that in this case on these facts.  No one knows why the van left the lane of traffic and drifted onto the shoulder several times before hitting the trailer.  I think the key to this mystery is the manner in which the van left the road: it drifted off the road.  It did not move in a jerky or sudden manner as if its occupants were startled by what they saw on the shoulder of the road.  Rather, it moved out of its lane and onto the shoulder without any apparent concern over the trailer.  In fact, there is no evidence in the record tending to prove that Aeroground’s negligence, rather than any other factor, somehow caused the van to leave the lane and collide with the trailer.  Without this evidence, we can only speculate and our speculation—where any number of possible causes exist and none is more probable than another—cannot support the jury’s affirmative finding on proximate cause.  See Marathon Corp. v. Pitzer, 106 S.W.3d 724, 728–29 (Tex. 2003) (per curium).  

Conclusion

Because of this uncertainty over this tragic accident, I would hold that the trial court properly granted Aeroground’s motion for judgment notwithstanding the verdict.   Contrast Longoria, 44 S.W.3d at 674 (distinguishing Bell and Union Pump, and holding disabled car on shoulder did proximately cause injuries when it “created a boxed canyon effect” and  the plaintiff was “ensnared by the danger created by the defendant”).

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Plurality, Concurring, and Dissenting Opinions filed March 22, 2005.

Panel consists of Justices Fowler, Edelman, and Seymore.  (Edelman, J., plurality.) (Seymore, J., dissenting.)

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^[1]  In holding that the trial court properly granted the defendant’s motion for summary judgment, the Court held Allbritton had not shown the proximate cause required to recover on her negligence claims, nor the producing cause required to recover on her strict liability claim.  Union Pump, 898 S.W.2d at 774–76.

^[2]  This court has followed this approach before.  See Longoria v. Graham, 44 S.W.3d 671, 672 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (analyzing accident that occurred when plaintiff’s car sideswiped a disabled car parked on the shoulder under general negligence principles and stating the dispositive issue was causation); see also State v. San Miguel, 981 S.W.2d 342, 344–45 (Tex. App.—Houston [14th Dist.] 1998) (op. on reh’g), rev’d on other grounds, 2 S.W.3d 249 (Tex. 1999) (finding trial court did not err in submitting general negligence, rather than premise defect, theory when case involved the placement of a barricade device along the side of a highway and rejecting the assertion that ‘the choice between a negligence  and premises defect charge turns solely on whether the injury results from a contemporaneous human act or a condition of property’).