Patrick Becerra v. Southwestern Bell Telephone Company

Reversed and Remanded and Memorandum Opinion filed May 5, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00536-CV

Patrick Becerra, Appellant

v.

Southwestern Bell Telephone Company, Appellee

On Appeal from the County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 941247

MEMORANDUM OPINION

Patrick Becerra appeals the trial court’s final summary judgment.  In two issues, he argues that the trial court erred in granting Southwestern Bell’s traditional and no-evidence summary judgment motions because fact questions exist on his claims for negligence and negligent training and supervision.  We hold that the record shows genuine issues of material fact on each claim.  We reverse the trial court’s judgment and remand for further proceedings.

Background

            During the late afternoon one day in April 2008, Southwestern Bell employee Louis Blanchard parked a service truck on Laura Leigh Lane while he repaired an outdoor cable box.  Laura Leigh Lane is a residential street with one lane in each direction, east and west.  Blanchard parked the truck in the eastbound lane a very short distance in front of a “T intersection” where Laura Leigh Lane continued straight and Townhouse Road connected with the eastbound side of Laura Leigh Lane.  The truck occupied almost the entire eastbound lane of Laura Leigh Lane.  The truck had an enclosed rear bed with ladders on top, and it was about 7.5 feet tall and twelve to fifteen feet in length.  Blanchard placed two orange cones at the exposed corners of the truck.  Further, to the right of the truck (off the street) were the following: a light pole, a large oak tree, two outdoor cable boxes, and an eight-foot tall fence.  Multiple witnesses explained that these visual obstructions, combined with the Southwestern Bell truck, created a roughly thirty-foot-wide blind spot from the edge of the fence to the edge of the truck near the center of Laura Leigh Lane.

While Becerra drove his motorcycle east on Laura Leigh Lane, Betty Barr was approaching the intersection from Townhouse Road in her Toyota Camry.  After Barr stopped at a stop sign, she began turning left, or west, onto Laura Leigh Lane at the same time Becerra moved into the westbound lane to pass the Southwestern Bell truck.  Becerra’s motorcycle collided with the front left side of Barr’s vehicle shortly after Becerra passed the truck.

Becerra sued Southwestern Bell for negligence and negligent hiring, training, and supervision.[1] Southwestern Bell moved for a traditional summary judgment on the negligence claim and for a no-evidence summary judgment on the negligent hiring, training, and supervision claim.[2] The trial court granted summary judgment on all claims but did not specify in its order the grounds for the judgment.  This appeal followed.

Standard of Review

We review de novo a trial court’s granting of summary judgment.  Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009).  We consider the evidence in the light most favorable to the nonmovant, indulging reasonable inferences and resolving doubts in the nonmovant’s favor.  Kane v. Cameron Int’l Corp., 331 S.W.3d 145, 147 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)).  We credit evidence favorable to the nonmovant if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not.  Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).  When, as here, the trial court does not specify the grounds for its summary judgment, we must affirm 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).

The movant for a traditional summary judgment must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Mann Frankfort, 289 S.W.3d at 848.  Summary judgment is properly awarded to a defendant if the defendant conclusively negates at least one essential element of the plaintiff’s claim.  Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).  If the defendant satisfies its burden, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact.  Kane, 331 S.W.3d at 147 (citing Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)).

The movant for a no-evidence summary judgment must allege that there exists no evidence to support one or more essential elements of a claim for which the nonmovant bears the burden of proof at trial.  Tex. R. Civ. P. 166a(i); Kane, 331 S.W.3d at 147.  The nonmovant must then present evidence raising a genuine issue of material fact on the challenged elements.  Kane, 331 S.W.3d at 147 (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).  A no-evidence summary judgment is essentially a pretrial directed verdict.  Mack Trucks, 206 S.W.3d at 581.

Negligence: Proximate Cause

In his first issue, Becerra contends that the trial court erred in granting summary judgment to Southwestern Bell based on its argument that the placement of the Southwestern Bell truck was not a proximate cause of the collision.  As an element of negligence, proximate cause requires a showing of both cause in fact and foreseeability.  W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).  Southwestern Bell essentially argues that it negated the causation element of negligence by showing that Becerra and Barr were negligent themselves, and these separate acts of negligence (1) were the only causes in fact that brought about the collision and (2) were not a foreseeable result of Blanchard parking the vehicle where he did.  We agree with Becerra and hold that genuine issues of material fact exist on the proximate cause element of negligence.  Southwestern Bell has failed to negate proximate cause as a matter of law.

A.    Cause in Fact

A defendant’s conduct is the cause in fact of a plaintiff’s injury if the defendant’s “act or omission was a substantial factor in causing the injury without which the harm would not have occurred.”  Id. The defendant’s conduct is not a substantial factor if the negligence merely furnishes a condition for the injuries to occur; that is, the defendant’s conduct is too attenuated from the plaintiff’s injuries to be considered a substantial factor.  IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2003).  However, the defendant’s conduct is a substantial factor if a reasonable person would “‘regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility.’”  Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex. 1991) (quoting Restatement (Second) of Torts § 431 cmt. a (1965)).[3]

Accordingly, we evaluate whether a reasonable person could regard the particular placement of the Southwestern Bell truck as a cause of the collision between Becerra and Barr.  In addressing this issue, we are mindful of three important points.  First, there may be more than one proximate cause of a plaintiff’s injuries.  Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010); Lear Siegler, 819 S.W.2d at 471.  Second, under the summary judgment standard, evidence does not conclusively negate the element of proximate cause if reasonable people could differ in their conclusions.  See Kane, 331 S.W.3d at 147 (citing City of Keller, 168 S.W.3d at 816).  Third, and somewhat related to the second point, the issue of proximate cause is usually a question of fact to be resolved by a jury.  See Farley v. M M Cattle Co., 529 S.W.2d 751, 756 (1975); Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex. 1970).[4]

The record in this case reveals a genuine issue of material fact that would allow a reasonable fact finder to conclude that the placement of the Southwestern Bell truck was a substantial factor in the collision between Becerra and Barr.  Becerra stated in his affidavit and at his deposition that the Southwestern Bell truck created a blind spot that prevented him from seeing Barr begin her turn onto Laura Leigh Lane.  Barr stated in her deposition that the placement of the truck near the other obstructions at the intersection caused her to not see Becerra approaching on Laura Leigh Lane. Blanchard testified that immediately after the accident, Barr claimed she could not see Becerra because of the parked truck.  When Officer Fred Cramer arrived shortly after the accident, he spoke to Becerra and Barr separately.  According to his accident report, each driver told him that the truck “was obstructing their view of the roadway and that was the cause of the accident.”

At his deposition, Officer Cramer testified that he thought the positioning of the truck next to the other visual obstructions created a blind spot for Becerra.  He testified that he thought the truck was a “contributing factor” to the accident.  He explained further, “I would never park on Laura Leigh Lane.”  He described the road as somewhat busy, very narrow, and lacking in lane division markings.  He agreed with Becerra’s counsel that if he parked on Laura Leigh Lane, he would “know [he] would be creating a dangerous condition for other users of the roadway.”

Blanchard testified that he parked where he did because he believed it to be the safest spot on the road at that time.  But after being questioned about the telephone pole, oak tree, cable boxes, and fence, he said, “I could see where, if it were me traveling, it would be difficult to see.”  He acknowledged that his truck created a blind spot for Becerra, and he explained that if he had seen the blind spot when he parked his truck, he would have moved it to a different location.

There is, of course, some evidence that Becerra’s and Barr’s actions were substantial factors in the collision.[5]  Barr recognized that there was a blind spot before she turned, and she nonetheless proceeded to turn left onto Laura Leigh Lane.  But the fact that Becerra and Barr may have been negligent by appreciating the dangerous situation before proceeding on their courses of action does not completely foreclose Becerra’s recovery against Southwestern Bell in this case.  A party’s “appreciation of and voluntary exposure to a dangerous . . . risk is something the jury can weigh when apportioning responsibility” under the standards of comparative negligence.  Del Lago Partners, 307 S.W.3d at 772.  In other words, the evidence of Becerra’s and Barr’s negligence does not conclusively negate the element of cause in fact when there is some evidence that the placement of the Southwestern Bell truck was also a substantial factor of the collision.

The evidence in this case is materially distinguishable from other cases in which a driver claimed that his or her view was obstructed but the court found a lack of proximate cause.  See Allewitz v. Baltgem Dev. Corp., No. 03-09-00656-CV, 2010 WL 3191788, at *1–2 (Tex. App.—Austin Aug. 12, 2010, no pet.) (mem. op.) (affirming summary judgment for the defendant when the plaintiff-driver claimed that bushes on the defendant’s property obstructed her view, but she testified at her deposition that she “had a view clear of any obstructions” before she proceeded into the intersection); Dunn v. Sw. Bell Tel. Co., 860 S.W.2d 571, 574 (Tex. App.—El Paso 1993, writ denied) (affirming summary judgment for Southwestern Bell when the plaintiffs, heirs of the deceased occupants of a motorcycle, claimed that a fence obstructed the view of another driver who failed to yield right of way, which resulted in the motorcycle colliding with the other driver; explaining that the undisputed evidence showed that the other driver had a clear view of the road before turning in the motorcycle’s path).  Here, both drivers consistently and unequivocally maintained that they could not see each other due to the visual obstruction created by the Southwestern Bell truck.  Barr did not state that she proceeded into the intersection with a clear view of oncoming traffic.  She explained that she “inched” forward as she tried to see around the blind spot created by the truck.  She testified, “I proceeded very slowly because I could not see.”

Accordingly, the evidence in this case raises a fact issue on whether the placement of the Southwestern Bell truck was a cause in fact of Becerra’s injuries.

B.     Foreseeability

“The test for foreseeability is whether a person of ordinary intelligence would have anticipated the danger his or her negligence creates.”  Sw. Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002).  Here, Southwestern Bell argues that it was not foreseeable that Becerra and Barr would “fail to avert an injury when they had ample opportunity to do so.”  Sometimes a defendant may avoid liability because subsequent conduct by another party interrupts or “supersedes” the defendant’s negligence.  See Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 451–52 (Tex. 2005) (plurality opinion).[6] To be considered a superseding cause, the subsequent wrongful conduct of another party must not be ordinarily or reasonably foreseeable.  Phan Son Van v. Pena, 990 S.W.2d 751, 755 (Tex. 1999).  The controlling inquiry is “‘whether the intervening cause and its probable consequences were such as could reasonably have been anticipated by the original wrongdoer.’”  Dew, 208 S.W.3d at 452 (quoting Bell v. Campbell, 434 S.W.2d 117, 120 (Tex. 1968)); accord Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 858 (Tex. 2009). 

The movant for summary judgment bears the burden of conclusively establishing that the subsequent conduct was unforeseeable.  See Phan Son Van, 990 S.W.2d at 754.  The following factors are relevant to the inquiry:

(1) the fact that the intervening force brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence;

(2) the fact that the intervening force’s operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of the force's operation;

(3) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation;

(4) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act;

(5) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him; and

(6) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

Id. (citing Humble Oil & Ref. Co. v. Whitten, 427 S.W.2d 313, 315 (Tex. 1968); Restatement (Second) of Torts § 442)). The first three factors are particularly important.  See id. at 754–56 (discussing the factors and focusing on the type of harm and whether the intervening force was extraordinary or normal); Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (“Mathis easily meets the foreseeability requirement, because the type of harm that a person of ordinary intelligence would anticipate from the negligent act is the type of harm that occurred.”); see also Restatement (Second) of Torts §§ 447, 449.

            Here, Southwestern Bell has failed to conclusively establish that any conduct of Becerra or Barr was so unforeseeable that it should be considered a superseding cause as a matter of law.  The type of harm that is reasonably foreseeable by creating a visual obstruction at an intersection is the same type of harm Becerra suffered—a motor vehicle accident resulting from the inability of drivers to see each other.  Further, Becerra’s conduct of driving fifteen miles per hour on a road for which he had the right of way, or Barr’s conduct of slowly “inching” around the Southwestern Bell truck after stopping at the stop sign, would not be highly extraordinary under the circumstances.  It is normal and ordinary for a driver to cautiously continue on his or her path around a parked vehicle rather than to find an alternate, less direct route.  Becerra’s and Barr’s acts and the collision would be normal results of creating a visual obstruction at an intersection, especially on a very narrow and somewhat busy road.

            Analogous decisions in Texas support the above conclusions.  See Tex. Dep’t of Transp. v. Pate, 170 S.W.3d 840, 843, 847–49 (Tex. App.—Texarkana 2005, pet. denied) (holding that the evidence was sufficient to affirm the jury’s verdict that the defendant’s failure to cut trees and vegetation at an intersection with one road controlled by a stop sign was a proximate cause of the plaintiffs’ injuries; noting that the drivers could not see each other until the stopped driver pulled into the intersection, but at that point neither driver could avoid the collision); Tex. Dep’t of Transp. v. Olson, 980 S.W.2d 890, 895–96 (Tex. App.—Fort Worth 1998, no pet.) (holding that the evidence was sufficient to affirm the jury’s verdict that the defendant’s failure to prevent shrubbery from obstructing drivers’ views of oncoming traffic at an intersection was a proximate cause of the plaintiff’s injuries); Mo. Pac. R.R. v. Lemon, 861 S.W.2d 501, 511–12 & n.2, 516 (Tex. App.—Houston [14th Dist.] 1993, writ dism’d by agr.) (noting the jury’s finding that the improper parking of train cars near an intersection, which obstructed the automobile driver’s view and train conductor’s view, was a proximate cause of a collision between the train and automobile; holding there was sufficient evidence for the jury to conclude that the automobile driver was not contributorily negligent partly because the negligence of the defendant in parking train cars near the intersection caused the driver’s view to be obstructed); see also Jezek v. City of Midland, 605 S.W.2d 544, 545–46, 548 (Tex. 1980) (imposing a common law duty on cities to remedy known visual obstructions at intersections; reversing trial court’s take-nothing judgment when the jury found the city negligent in failing to maintain vegetation at a T intersection, which obstructed views of drivers and resulted in accident); Hamric v. Kan. City S. Ry. Co., 718 S.W.2d 916, 920 (Tex. App.—Beaumont 1986, writ ref’d n.r.e.) (reversing summary judgment in favor of the defendants, a railway company and Southwestern Bell, because the defendants owed a duty to automobile drivers to clear vegetation that created a visual obstruction for drivers at an intersection).  But see Fetty v. Miller, 905 S.W.2d 296, 302 (Tex. App.—San Antonio 1995, writ denied) (holding that a landowner could not reasonably foresee that parking a truck on his property, off the roadway, would create a hazardous condition for drivers at an intersection, and thus, the landowner owed no duty to the plaintiff-driver; but noting that the landowner’s property was not the closest to the intersection, the truck had been parked at that location on a regular basis for nine years, the landowner was not aware of any prior accidents at that intersection, and the plaintiff failed to raise any fact issues on summary judgment).[7]

            Further, courts in several other jurisdictions have found proximate cause sufficiently established when a defendant parked a vehicle near an intersection and obstructed the views of drivers who collided.  See City of Fairbanks v. Nesbett, 432 P.2d 607, 610–11 (Alaska 1967) (affirming the trial court’s denial of a directed verdict for the city because there was sufficient evidence of proximate cause when the city’s truck was parked near an intersection and obstructed the drivers’ views of oncoming traffic; the non-plaintiff driver stopped at a stop sign before entering the intersection and colliding with the plaintiff, a motorcyclist); Atl. Mut. Ins. Co. v. Kenney, 591 A.2d 507, 515 (Md. 1991) (holding that the intermediate appellate court erred in finding a lack of proximate cause as a matter of law when the defendant parked a tractor trailer near the entrance to the parking lot of a shopping mall, obstructing the views of drivers who collided when a driver attempted to leave the parking lot; but noting that “[p]arking an ordinary vehicle too close to a driveway or an intersection might not create the same risk”); see also Bergeron v. Greyhound Corp., 100 So. 2d 923, 925 (La. App. 1958) (“It was not strongly argued that the placing of the parked bus at the intersection of this main highway with the railroad tracks so as to completely obscure the adjacent tracks or trains from motor vehicle traffic could not constitute negligence which was a proximate cause of a resulting train-motor vehicle accident.”).

            Here, Officer Cramer testified that parking on Laura Leigh Lane creates a dangerous condition to users of the roadway.  Blanchard explained that he could see how the positioning of the truck near the other visual obstructions would create a blind spot for other drivers.  If Blanchard had noticed the blind spot, he would have moved the Southwestern Bell truck from that location.  It is a reasonable inference from this testimony that the type of harm resulting in this case and the intervening conduct of Becerra and Barr were foreseeable—both could have been reasonably anticipated by Blanchard.

            Finally, Southwestern Bell has failed to identify any extraordinary conduct of the drivers in this case that could negate proximate cause as a matter of law.  For example, the evidence in this case does not show that either driver was intoxicated, see Bell, 434 S.W.2d at 119, 122, falling asleep, see Lear Siegler, 819 S.W.2d at 471–72, running a red light, see Clark v. Morrison, 177 A.2d 96, 97 (Pa. 1962), or entering the intersection with a clear view of oncoming traffic, see Allewitz, 2010 WL 3191788, at *1–2; Dunn, 860 S.W.2d at 574.[8]

            Accordingly, Southwestern Bell has failed to conclusively negate the element of proximate cause as a matter of law.  Becerra’s first issue is sustained.

Negligent Hiring, Training, and Supervision

In his second issue, Becerra argues that the trial court erred in granting a no-evidence summary judgment to Southwestern Bell on the claim of negligent training and supervision because there is a fact question on whether Blanchard was properly trained and supervised to park his vehicle in a safe manner.  We agree with Becerra.

Southwestern Bell’s no-evidence motion on the negligent hiring, training, and supervision issue appears in full as follows:

In order to prevail on a claim for negligent [sic] in failing to properly train, instruct, and supervise, the Plaintiffs must establish Defendants were negligent in hiring, training or supervising an employee.  See Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (claims for negligent hiring and supervision against employer are not independent causes of action).

In the instant case, there is no evidence that Southwestern Bell was negligent in hiring Louis Blanchard or in failing to properly train, instruct or supervise Louis Blanchard.  As such, summary judgment must be granted.

A no-evidence motion “must state the elements as to which there is no evidence.” Tex. R. Civ. P. 166a(i).  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 summary judgment.  Cuyler v. Minns, 60 S.W.3d 209, 212–13 (Tex. App.—Houston [14th Dist.] 2001, pet denied).

Southwestern Bell’s motion on this claim does not explicitly challenge the duty, breach, or causation-of-injury elements—the essential elements of negligent hiring, training, and supervision.  See Zarzana v. Ashley, 218 S.W.3d 152, 158 (Tex. App.—Houston [14th Dist.] 2007, pet. struck).  The purposes of requiring a movant to challenge a particular element are to give “fair notice” to the nonmovant about what type of evidence must be brought forward to defeat the motion and to help define the issues for the court.  See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009).  To determine which elements, if any, are fairly raised by the motion and were before the trial court, we may look to the language of the motion, Becerra’s complaint, and Becerra’s response.  See id. (reviewing the language of the motion, the complaint, and the response to determine what issues were fairly raised and joined).

The only element fairly challenged in Southwestern Bell’s motion is “breach.”  Southwestern Bell does not suggest by any language that it did not owe a duty to exercise reasonable care in hiring or training Blanchard.  Nor does Southwestern Bell suggest that Becerra’s injuries were not the result of any such failure to properly hire or train.  The motion simply argues that there is no evidence that Southwestern Bell actually failed to properly hire, train, supervise, or instruct its employee.  Becerra’s complaint clearly distinguishes the elements of duty, breach, and causation.  But Becerra’s response focuses solely on Southwestern Bell’s conduct: inadequate training.  The motion and response address only the issue of breach, and the other elements were not fairly raised in the trial court.

Assuming without deciding that Southwestern Bell owed a duty to Becerra to instruct or train Blanchard on how to park a truck without creating blind spots at intersections, Becerra presented sufficient evidence to avoid summary judgment that Southwestern Bell did not breach this duty.  Blanchard testified that he received some hands-on training about safe driving and parking, but he did not recall specific training on how to avoid creating blind spots.  A portion of a Southwestern Bell training document was also included in the summary judgment record.  Although the document lists at least ten specific rules or guidelines for parking, instructs drivers to consider a number of factors when selecting a proper parking space, and instructs drivers to “check mirrors and blind spots” before entering the vehicle to leave a parking space, the training instructions do not inform a driver that he or she should avoid parking near intersections or otherwise guard against creating blind spots.

This evidence raises a genuine issue of material fact on the element of breach.  Accordingly, Becerra’s second issue is sustained.

Having sustained both of Becerra’s issues, we reverse the trial court’s judgment in full and remand for further proceedings.

                                                                        /s/        Sharon McCally

                                                                                    Justice

Panel consists of Justices Anderson, Seymore, and McCally.

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[1] Barr was a codefendant, but she settled with Becerra and is not a party on appeal.

[2] The summary judgment evidence includes, among other things, (1) transcripts of depositions of Becerra, Barr, Blanchard, and Officer Fred Cramer, a patrol officer who was dispatched to the accident scene; (2) an accident report completed by Officer Cramer; (3) an affidavit by Becerra; (4) pictures of the scene of the accident taken at a later date without the truck parked at the scene; and (5) part of a Southwestern Bell training manual.

[3] The “popular sense” is distinguished from the “‘philosophic sense, which includes every one of the great number of events without which any happening would not have occurred.’”  Lear Siegler, 819 S.W.2d at 472 (quoting Restatement (Second) of Torts § 431 cmt. a).

[4] See also, e.g., Tex. Dep’t of Transp. v. Pate, 170 S.W.3d 840, 848 (Tex. App.—Texarkana 2005, pet. denied) (“Whether a particular act of negligence is a cause-in-fact of an injury is a particularly apt question for jury determination.”); Berry Prop. Mgmt., Inc. v. Bliskey, 850 S.W.2d 644, 656 (Tex. App.—Corpus Christi 1993, writ dism’d by agr.) (“Texas courts routinely hold that proximate causation is a fact question within the jury’s province.”); Ramey v. Collagen Corp., 821 S.W.2d 208, 212 (Tex. App.—Houston [14th Dist.] 1991, writ denied) (“[T]he question of proximate causation is one of fact peculiarly within the province of the jury, and the jury finding on it will be set aside only in the most exceptional circumstances.” (quotation omitted)); Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 628 (Tex. Civ. App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.) (“‘Ordinarily (of course,) the question of whether an act of negligence was a proximate cause of the consequences presents an issue for determination by the fact finder.’” (quoting Clark, 452 S.W.2d at 440)); Espinosa v. Hudson, 531 S.W.2d 248, 250 (Tex. Civ. App.—Tyler 1975, no writ) (“The general rule in automobile cases is that proximate cause is a question of fact for a jury determination.”); Permian Mud Serv., Inc. v. Sipes, 339 S.W.2d 81, 84 (Tex. Civ. App.—Eastland 1960, no writ) (“It is rarely held that proximate cause is established as a matter of law. Usually, it is a question of fact.”).

[5] Officer Cramer noted in his accident report that Barr failed to yield right of way, was inattentive, and turned when unsafe.  Barr acknowledged at her deposition that she failed to yield right of way.  Officer Cramer further noted in his report that Becerra failed to pass on the left safely, was inattentive, and failed to control his speed.  Becerra was passing the truck at about fifteen miles per hour. 

[6] A subsequent act of negligence that does not supersede the defendant’s original negligence has been described as a “concurring” cause.  Dew, 208 S.W.3d at 451.  Both a concurring cause and superseding cause are considered “intervening” forces or acts.  Id. at 451–52.

[7] Although most of these cases were decided in the context of premises liability claims, the proximate cause analysis is the same inquiry in an ordinary negligence case.  See Reinicke v. Aeroground, Inc., 167 S.W.3d 385, 387 n.2 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (plurality opinion) (noting that proximate cause is an overlapping element of both ordinary negligence and premises liability claims); id. at 391 (Fowler, J., concurring) (concluding that the trial court properly submitted the case under a general negligence theory rather than premises liability and the controlling issue was proximate cause; plaintiff-driver struck a vehicle negligently parked on the shoulder); id. at 394, 396 (Seymore, J., dissenting) (same); Univ. of Tex. at Austin v. Hinton, 822 S.W.2d 197, 204 (Tex. App.—Austin 1991, no writ) (concluding that a general negligence instruction could support the verdict in this premises liability case).

[8] Southwestern Bell relies primarily on two cases to support its argument.  See Reinicke, 167 S.W.3d 385; Wolf v. Friedman Steel Sales, Inc., 717 S.W.2d 669 (Tex. App.—Texarkana 1986, writ ref’d n.r.e.).  These cases are inapposite.  Wolf involved the intentional criminal conduct of a third party who stole a truck with a readily apparent defect, and the truck stalled, causing an accident.  717 S.W.2d at 671.  Although the defendant knew of the defect, he had no reason to foresee that someone would steal the truck and drive it with the obvious defect.  Id. at 674.  In Reinicke, a driver veered off a highway for no apparent reason and struck a vehicle parked on the side of the road, not in a lane of travel.  167 S.W.3d at 389.  The court held that the mere parking of the defendant’s vehicle outside any lanes of travel was not a cause in fact of the accident because the other driver inexplicably left the roadway to collide with the parked vehicle.  Id.; id. at 392–93 (Fowler, J., concurring).  The present case does not involve unforeseeable criminal conduct, and Becerra’s and Barr’s acts were fully explainable and directly related to the risk created by a visual obstruction at an intersection.