Melissa Shultz on Behalf of Zachary Taylor Shultz and Their Two Minor Children, T.A. and A.S. v. Lone Star Road Construction, Ltd.

Affirmed and Majority and Dissenting Opinions filed July 18, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00550-CV
MELISSA SHULTZ ON BEHALF OF ZACHARY TAYLOR SHULTZ AND
THEIR TWO MINOR CHILDREN, T.A. AND A.S., Appellant
V.
LONE STAR ROAD CONSTRUCTION, LTD., Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2013-57989
DISSENTING OPINION
The majority concludes the summary-judgment evidence fails to raise a fact
issue on causation. Because I disagree, I respectfully dissent.
The majority decides that Shultz’s expert, Edward Carrick, “assumed that
another vehicle drove over the Tow Hook in this area, launching it towards the
Truck.” As set forth in the majority opinion, Lone Star’s own expert, Dr. Harry
Smith, opined that the tow hook was “kicked up” by westbound traffic and then came
across the median barrier to strike the truck. It was the opinion of both experts that
a vehicle on the roadway made contact with the tow hook, the tow hook became
airborne, and the tow hook, coming from the left side, struck the windshield of the
truck. The difference in opinion between Carrick and Smith was the location of the
tow hook before it left the ground. Smith concluded the tow hook was on the
westbound side of the median barrier while Carrick’s calculations led to his
determination that the tow hook was on the shoulder of the eastbound traffic lanes.
The majority characterizes Carrick’s opinion as a bare “assumption” because
the driver of the truck, Freeman (1) told police he did not see another vehicle around
him at the time of the accident; (2) stated in his deposition that the closest vehicle to
the truck was three to five car lengths; and (3) testified nothing out of the ordinary
occurred. The majority then concludes that because Freeman did not see the vehicle,
it did not exist, and therefore Carrick’s opinion is “based on an assumed fact that
varies materially from the actual facts.” From that conclusion, the majority decides
Carrick’s affidavit is not competent evidence.
The evidence presented by the motion and response are to be reviewed 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) (citing City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005)). Reviewing Freeman’s testimony in the proper light, I would
conclude a genuine issue of material fact was raised which precludes summary
judgment—where was the tow hook before it became airborne and made contact
with the vehicle?
Freeman testified he saw the tow hook prior to impact, moving from left to
right, at the top of the windshield. The damage to the windshield and A-pillar of the
2
truck indicated the tow hook had significant left to right velocity. Freeman testified
that his vehicle was traveling in the third lane from the left shoulder. The crash report
shows Freeman in the third lane. However, Freeman also said that he was in the
second or third lane.
Freeman testified there was other traffic, but it was not heavy. He was asked
if there was anything that “stood out in his mind — in terms of traffic or anything
unusual on the roadway?” Freeman answered, “No.” Freeman testified he did not
remember cars specifically in front of him or in other lanes being very close and said
that he was not paying attention to the west side at all. Freeman testified there were
not a lot of cars in front of the truck, and also said that he did not think any vehicle
was in front. According to Freeman, the closest vehicle was three to five car lengths
from the truck. No one asked, and Freeman was not specific, as to whether his
testimony concerned only the cars in front of his vehicle, or the cars on the roadway
to the side or possibly behind the truck, even possibly in the truck’s “blind spot.”
Further, the “three to five car lengths” was not defined by the type of car or the speed
of the other vehicles. Freeman testified that he was driving “around 65.” In spite of
this lack of specificity, and without reference to any evidence of the width of the
shoulder or the lanes of the roadway, the majority concludes that a vehicle in the
area shown in Carrick’s diagram “would have been less than three car lengths from
the Truck.”
The majority does not define “actual” facts, as opposed to any other kind, but
determines Freeman’s testimony that he recalled nothing unusual on the roadway to
be conclusive that there was no vehicle that struck the tow hook and therefore
Carrick’s calculations are based on an “assumption.”1 Freeman’s testimony does not
1
Although Lone Star objected to Carrick’s methodology or data, they did not obtain a
ruling from the trial court regarding Carrick’s expert opinion.
3
prove as a matter of law there was no vehicle that struck the tow hook. There are any
number of reasons why Freeman may not have seen a vehicle prior to its impact with
the tow hook: it is conceivable that Freeman did not look to the left immediately
prior to the vehicle’s impact with the tow hook, a vehicle could have moved onto the
shoulder and back onto the roadway immediately before the impact, and certainly,
after the impact, Freeman’s testimony reflects he was focused on calling 911 and
exiting the roadway. Thus, the fact that Freeman did not notice a vehicle on the
shoulder does not establish as a matter of law that Carrick’s opinion that a vehicle
on the shoulder struck the tow hook is “based on an assumed fact that varies
materially from the actual facts.”
The majority further rejects “Carrick’s conclusion that the Tow Hook traveled
45 feet from its launching point to the point of impact with the Truck” because it is
“conclusory and speculative and thus incompetent evidence.” Carrick’s affidavit sets
forth the following factual bases for his opinion:
 Photographs of the vehicle following the incident establish that the tow
hook landed in a particular portion of the windshield of the Ford, the
center of which was approximately 4.75 feet above ground.
 The driver of the vehicle in which the plaintiff was injured also testified
that the tow hook was moving from “left to right” (Freeman, James,
Page 39, lines 8 through 10), and that the tow hook was moving
downward, or “falling,” before impact, (Freeman, James; Page 46;
Lines 2 through 9). The dimensions of the tow hook are approximately
8” x 4.5” x 1.5” and its weight is approximately five pounds.
 Using recognized and accepted standard engineering principles -
namely projectile motion equations - I was able to determine that:
(i) the tow hook would have traversed a horizontal distance of over
fifty-four (54) feet from launch to landing had it not encountered the
Ford and (ii) the tow hook would have impacted the Ford over forty-
five (45) feet from its initial launch point. The formulae I used to arrive
at these conclusions are shown below. This set of equations was chosen
as they represent the recognized standard equations used for describing
an article in motion through the air. All engineering and physics
4
standards and practitioners will, in all cases, confirm that these are
indeed the correct and the only sets of equations to define the projectile
motion of the tow hook:
Vxo = Vo * cos (Ɵ); Initial velocity in the x-direction
Vyo = Vo * sin (Ɵ); Initial velocity in the y-direction
∆y = Vyo * t - ½ * g * t2; Displacement in the y-direction
∆x = Vxo * t; Displacement in the x-direction
With these equations, and knowing the tow hook passed through a
vertical height (or displacement) of approximately 6 feet (as determined
through Freeman testimony and Ford vehicle specifications) and 4.75
feet (as determined through study of the subject Ford photographs and
measurements) a fit for the actual flight path of the tow hook was found.
The majority finds these bases lacking because Carrick did not set forth in his
affidavit his actual calculations or define the variables. The majority is, in essence,
requiring Carrick to prove his hypothesis. But a nonmovant is not required to
marshal its proof to defeat a no-evidence summary judgment; the nonmovant must
only point out evidence that raises a fact issue on the challenged element. Carlson
v. Fiesta Mart, Inc., No. 14-99-00581-CV, 2000 WL 1840308, at *1 (Tex. App.—
Houston [14th Dist.] Dec. 14, 2000, no pet.) (mem. op.) (citing Tex. R. Civ.
P. 166a (comments)).
I disagree with the majority’s conclusion that there is no evidence, or no
competent summary-judgment evidence, that the tow hook was in the area controlled
by Lone Star.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Chief Justice Frost and Justices Jewell and Poissant. (Frost, C.J.
majority).
5