the Port of Houston Authority v. Abran Morales

Affirmed and Memorandum Opinion filed September 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00052-CV
THE PORT OF HOUSTON AUTHORITY, Appellant
V.
ABRAN MORALES, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2019-09088
MEMORANDUM OPINION
Appellee Abran Morales filed suit against appellant the Port of Houston
Authority (“the Port”) for negligence concerning an accident between a gantry
crane driven by one of the Port’s employees and Morales’s truck. In two issues,
which we construe as one, the Port argues that the trial court should have granted
its motion for summary judgment because the trial court lacks subject-matter
jurisdiction over Morales’s negligence claims. We affirm the judgment of the trial
court.
I. BACKGROUND
In 2018, Morales was working for Palletized Trucking as a truck driver. On
August 20, 2018, Morales was delivering a container at the Port’s Bayport
Container Terminal. Morales parked his truck in the bypass lane and waited in a
line of trucks to deliver the container. Richard Taylor, an employee working for the
Port, was driving a gantry in the runway to the right of the bypass line of trucks.
Taylor was leaving pad 3A traveling east toward pad 2A, when the gantry he was
operating struck the right-side mirror of the truck in front of Morale’s truck, and
then struck Morales’s parked truck.
On February 6, 2019, Morales filed suit against the Port for negligence and
negligence per se. Morales, in part, specifically alleged that Taylor violated his
duty to exercise ordinary care while operating the gantry by: (1) failing to maintain
a proper lookout; (2) failing to control the distance between his vehicle and
surrounding vehicles; (3) failing to maintain attention; (4) failing to timely apply
brakes; (5) failing to yield right of way; (6) failing to control the speed of his
vehicle; and (7) failing to maneuver his vehicle so as to avoid a collision.
According to Morales, the Port’s immunity has been waived under the Texas Torts
Claims Act because Taylor was acting within the scope of his employment with the
Port, the injury arises from the operation of a motor vehicle, and Taylor would be
personally liable to Morales under the Texas Tort Claims Act. See Tex. Civ. Prac.
& Rem. Code Ann. § 101.021(1). Morales further alleged that he suffered injuries
as a direct result of Taylor’s negligence.
In March of 2019, the Port filed its special exceptions, plea to the
jurisdiction, and original answer. The Port argued that its immunity was not
waived because Morales failed to state: (1) what specific legal duty the Port owed
to Morales; (2) what specific act or omission by the Port constituted a breach of
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duty and caused Morales’s alleged injury; (3) how any alleged breach of duty
proximately caused Morales’s alleged injury; and (4) what specific injury Morales
suffered as a result of the incident.
In December 2020, the Port filed a traditional and no-evidence motion for
summary judgment, arguing that Morales’s negligence cause of action failed
because the evidence did not demonstrate that Taylor breached any duty he owed
to Morales and there was no evidence that this accident caused Morales’s injuries.
The declarations of Taylor and Officer Stacy Joseph—an officer working for the
Port of Houston Police Department (“PHPD”)—were attached to the Port’s
motion.
According to Taylor, the gantry operates in runways identified by white
lines, but Taylor alleges Morales’s truck was parked over the white lines marking
the truck lane. Because of the width of the gantry, Taylor claimed he could not see
Morales because Morales’s truck was in the gantry’s blind spot. Taylor also
asserted that there is a green line inside of the white lines marking the gantry
runway to help the gantry operators stay inside their runway lane; if an operator
keeps the driver side wheels on the green line, the gantry will stay inside the
runway because the only way a gantry can turn is by completely stopping and
unlocking the wheels. According to Taylor, he kept the gantry’s wheels on the
green line. Furthermore, Taylor asserted that truck drivers at the port are trained to
yield the right-of-way to gantry operators. The Port attached a photograph showing
that the gantry was slightly over the white lines; however, according to the Port,
the gantry crossed the line as a result of the impact with Morales’s truck.
Officer Joseph stated that he created the accident report, and affirmed that
the PHPD does not enforce the Transportation Code at the Port because of the
Port’s lack of State, County, or City highways, roads, or streets. According to
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Officer Joseph, the right side of Morales’s truck was outside of the line marking
the truck lane. He also averred that Taylor kept his wheels on the green line he was
supposed to follow and that all of the green lines were drawn correctly. He also
stated that an “impact often causes [the gantry] to turn slightly.” Officer Joseph
described the damage to the truck as follows:
[Morales] drove his work truck away from the scene. The accident
caused denting along the right side of the truck. The fiberglass panel
on the sleeper cab was peeled back, and the step into the sleeper cab
was damaged. The driver’s side of the truck did not appear to be
damaged. I did not observe any damage that would obviously make
the truck unsafe to drive.
The Port also attached the Port’s Health, Safety, Security, and Environment
Policy Document (“the Policy”) to its motion for summary judgment. The Policy
applies to “all truck drivers operating at the Bayport Terminal.” The Policy states
multiple times that gantry operators “always have the right of way.” Thus, the Port
claimed that Morales failed to raise any evidence suggesting that Taylor breached a
duty to Morales.
Concerning causation, the Port argues that Morales fails to provide expert
testimony to support the causation element of his negligence and negligence per se
claim. The Port avers that Morales has pre-existing injuries to the same part of his
body from three prior motor-vehicle accidents: (1) in 2013, Morales fractured his
neck when he was struck by a drunk driver; (2) in February 2018, Morales injured
his back in a motor-vehicle accident; and (3) in August 2018, after the incident
with Taylor’s gantry, Morales injured his back in a motor-vehicle accident.
Further, in March 2018, the results of an MRI of Morales’s neck and back
revealed disc herniations between C5 and C6 and also between C6 and C7, and a
1.8mm herniation at L5-S1. MRI results taken after the August 2018 gantry
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collision showed that the herniations had increased in size, and a radial fissure was
noted at L3-L4 that was not noted on the March 2018 MRI. Morales also attached
his medical records from the doctor he visited after the incident—Matthias
Wiederholz, M.D. Wiederholz included the following note in the medical records:
The patient denies an immediate history of neck or back pain prior to
the accident. Within a reasonable degree of medical probability, the
injuries sustained are causally related to the accident. He had an
accident in February with neck and back pain but was able to return to
full duty after a short course of physical therapy at that time. He was
not having neck or back pain prior to this injury.
However, the Port claimed that because of the prior and subsequent injuries to the
same parts of Morales’s body, and without proof of Wiederholz’s qualifications
and credible, scientific research to support Wiederholz’s causation analysis,
Wiederholz’s opinion was conclusory; therefore, Morales failed to provide
evidence that his injuries were a result of the accident with Taylor, making
summary judgment appropriate.
The Port further argued that Morales’s negligence per se claim failed
because Morales did not establish that Taylor violated any statutes. In his petition,
Morales cited generally to the Texas Transportation Code § 545, alleging that
Taylor’s actions constituted negligence per se. However, citing Officer Joseph’s
declaration, the Port asserted that Morales’s negligence per se claim failed because
the Texas Transportation Code is inapplicable to the Port.
The Port also averred that Morales failed to provide evidence that his
medical bills were paid or incurred. See Tex. Civ. Prac. & Rem. Code Ann.
§ 41.0105 (“In addition to any other limitation under law, recovery of medical or
health care expenses incurred is limited to the amount actually paid or incurred by
or on behalf of the claimant.”). Although Morales produced evidence of
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approximately $151,000 in medical bills, the Port alleged that there was no
evidence that Morales actually paid any of those bills, made any arrangements to
pay those bills, or that any of the medical providers intended to hold Morales
responsible for paying those bills if he did not prevail in litigation.
In his response to the Port’s motion for summary judgment, Morales argued
that there was sufficient evidence to raise a fact issue as to causation, because as
evidenced by the MRI results before and after the gantry accident, the severity of
his disc herniations had increased, and there was an MRI finding of a radial fissure
after the gantry accident at L3-L4 that was not found in the MRI results from
before the gantry accident. Morales further argued that the herniation located at
L5-S1 had grown from 1.8 mm to 2.0 mm, and that Morales claimed injuries not
complained of prior to the gantry accident, including a left shoulder injury and pain
to his shoulders, entire back, chest and hips, supported by his medical records and
deposition testimony. Morales further avers that he was not relying on temporal
proximity to prove causation; given the MRI results prior to and after the gantry
accident, a five-month period, Morales argued an expert was not required to
evaluate whether Morales’s injuries were caused by the gantry accident, and
moreover, that Wiederholz, an orthopedic specialist, noted the prior accident and
neck and back pain, Morales’s recovery from those injuries, and noted Morales
reported not having neck or back pain prior to the current injury. He asserts
Wiederholtz’s documentation, including the presenting complaints, clinical
examination, and correlation with diagnostic studies, are sufficient to establish
causation.
Concerning his negligence per se claim, Morales argued that per the Port’s
own polices: “5.3.2 PORT HOUSTON safety procedures, standards, rules and
guidelines only supplement and do not in any way supersede state and federal laws
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or other industry regulations.” (emphasis added).
Morales averred that the Texas Transportation Code was designed to protect
motorists such as Morales, and that Morales’ petition, although not required to do
so, set forth seven violations of the Transportation Code.
Regarding his negligence claim, Morales argued that it is undisputed that
Taylor left his lane. And Joseph’s incident report reflects that “Morales also stated
the crane was outside the crane lane causing the accident.” Thus, Morales argues
that his statement of facts to Officer Joseph was sufficient to raise a fact issue as to
Taylor’s negligence.
Concerning the paid and incurred expenses, Morales argued that the
following conversation at trial clearly indicated Morales’s responsibility to pay the
medical bills, and reflects Morales’s inability to initially understand the question:
[Question]: If you do not recover those expenses from this lawsuit,
would you pay those medical expenses?
[Morales]: It’s for my attorney.
[Question]: I’m sorry, I couldn’t hear you.
[Morales]: You’re breaking up there.
[Question]: Yeah, I’m sorry, I couldn’t hear you. If you were not to
recover those expenses from this lawsuit, would you plan
on paying those expenses?
[Morales]: Yes, I would have to pay for them.
On January 13, 2021, a hearing was conducted on the Port’s motion. During
the hearing, Morales agreed to nonsuit his negligence per se claim. At the
conclusion of the hearing, the trial court informed the parties that it was denying
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the motion for summary judgment as to the negligence claim, “based on [Morales]
agreement to non-suit claims for negligence per se claim.” The trial court signed an
order denying the Port’s motion later that day. On January 15, 2021, Morales filed
an amended petition, which no longer raised a negligence per se claim. The Port
filed a timely notice of appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a);
City of Houston v. Atser, L.P., 403 S.W.3d 354, 357 (Tex. App.—Houston [1st
Dist.] 2013, pet. denied) (“An interlocutory appeal may be had when a trial court
denies a governmental unit’s challenge to subject matter jurisdiction, ‘irrespective
of the procedural vehicle used.’” (quoting Thomas v. Long, 207 S.W.3d 334, 339
(Tex. 2006))).
II. SOVEREIGN IMMUNITY
A. STANDARD OF REVIEW
Morales agrees that the Port is a governmental entity. Generally, a
governmental entity such as the Port is immune from tort liability. City of
Galveston v. State, 217 S.W.3d 466, 468–69 (Tex. 2007); Quested v. City of
Houston, 440 S.W.3d 275, 279–80 (Tex. App.—Houston [14th Dist.] 2014, no
pet.). Governmental immunity from suit defeats a trial court’s subject matter
jurisdiction, and thus is properly asserted in a plea to the jurisdiction. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). However, a
defendant may also raise the lack of subject-matter jurisdiction in a motion for
summary judgment. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000); Atser, L.P., 403 S.W.3d at 357. Upon such a jurisdictional challenge,
regardless of the procedural vehicle used, the trial court may consider evidence,
and must do so when necessary to resolve the jurisdictional issues raised. Blue, 34
S.W.3d at 555.
We review a challenge to the trial court’s jurisdiction de novo. State v.
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Holland, 221 S.W.3d 639, 642 (Tex. 2007). We first look to the pleadings to
determine if the pleader has alleged facts that affirmatively demonstrate the court’s
jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. We construe the
pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept
as true the factual allegations in the pleadings. See id.; Martinez v. Harris County,
526 S.W.3d 557, 562 (Tex. App.—Houston [1st Dist.] 2017, no pet.); Quested, 440
S.W.3d at 279.
Here, the Port challenges the existence of jurisdictional facts with supporting
evidence. In such cases, the standard of review mirrors that of a traditional
summary judgment: “[I]f the plaintiffs’ factual allegations are challenged with
supporting evidence necessary to consideration of the plea to the jurisdiction, to
avoid dismissal plaintiffs must raise at least a genuine issue of material fact to
overcome the challenge to the trial court’s subject matter jurisdiction.” Alamo
Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018) (quoting
Miranda, 133 S.W.3d at 221). In determining whether a material fact issue exists,
we must take as true all evidence favorable to the plaintiff, indulging every
reasonable inference and resolving any doubts in the plaintiff’s favor. Id. In doing
so, however, we cannot disregard evidence necessary to show context, and we
cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable
jurors could not. Id.; see Transcon. Ins. Co. v. Briggs Equip. Tr., 321 S.W.3d 685,
692 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“The evidence raises a
genuine issue of fact if reasonable and fair-minded jurors could differ in their
conclusions in light of all of the . . . evidence.”).
B. APPLICABLE LAW
The Port, as a governmental entity, cannot be vicariously liable for an
employee’s acts unless its governmental immunity has been waived. See City of
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Pasadena v. Belle, 297 S.W.3d 525, 529 (Tex. App.—Houston [14th Dist.] 2009,
no pet.). Under the facts of this case, the only waiver of the Port’s immunity from
suit and liability raised by Morales is found in § 101.021 of the Texas Tort Claims
Act (“TTCA”), which provides in relevant part:
A governmental unit in the state is liable for . . . property damage, personal
injury, and death proximately caused by the wrongful act or omission or the
negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle or motor-driven
equipment; and
(B) the employee would be personally liable to the claimant
according to Texas law.
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1).
Morales argues that Taylor would be personally liable under a negligence
cause of action.
The elements of a negligence cause of action are the existence of a
legal duty, a breach of that duty, and damages proximately caused by
the breach. The two elements of proximate cause are cause in fact (or
substantial factor) and foreseeability. These elements cannot be
satisfied by mere conjecture, guess, or speculation. 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. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798–
99 (Tex. 2004) (internal citations omitted). To establish breach of duty, “the
plaintiff must show either that the defendant did something an ordinarily prudent
person exercising ordinary care would not have done under the particular
circumstances or that the defendant failed to do something that an ordinarily
prudent person would have done in the exercise of ordinary care.” Douglas v.
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Aguilar, 599 S.W.3d 105, 108 (Tex. App.—Houston [14th Dist.] 2020, no pet.).
C. APPLICATION
We first address Morales’s contention that it is improper for the Port to seek
appellate review of the denial of its motion for summary judgment. Specifically,
Morales argues that “seeking appellate review of a denial of a summary judgment
through an interlocutory appeal based on [Texas Civil Practice and Remedies
Code] §51.014(a)(8) is the wrong standard as applied to this case lacks merit [sic].”
However, as we noted above, an interlocutory appeal may be had when a trial court
denies a governmental unit’s challenge to subject matter jurisdiction, “irrespective
of the procedural vehicle used.” Atser, 403 S.W.3d at 357; see Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a).
We next address the Port’s challenge to the trial court’s jurisdiction. For the
Port’s immunity to be waived, it was necessary for Morales to raise a fact issue as
to: whether the Port is a governmental unit; Taylor was acting in the scope of his
employment; Morales’s injuries arose from Taylor’s operation of a motor-vehicle;
and whether Taylor would be personally liable to Morales under Texas law. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1). The Port concedes that the
accident involved Taylor, an employee of a governmental unit, and the Port does
not dispute that Taylor was acting in the scope of his employment. However, the
Port contends that Morales failed to raise a fact issue regarding whether Taylor
would be personally liable to Morales because Morales did not raise an issue of
fact on each element of his negligence claim. Specifically, the Port alleges that
there is no evidence that: (1) Taylor breached his duty as a gantry driver; and (2)
the August 2018 gantry accident caused Morales’s injuries. We first address the
Port’s argument concerning breach of duty.
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1. Morales raised a fact issue on Taylor’s alleged breach of duty
In his petition, Morales asserted that Taylor failed to: maintain a proper
lookout; control the distance between his vehicle and surrounding vehicles;
maintain attention; timely apply brakes; yield the right of way; control the speed of
his vehicle; and maneuver his vehicle so as to avoid a collision. We then take as
true all evidence favorable to Morales, and indulge every reasonable inference and
resolve any doubts in Morales’s favor. See Alamo Heights, 544 S.W.3d at 771.
Under this analysis, the evidence that is favorable to Morales includes the
photographs showing the gantry over the line, Morales’s statement to Officer
Joseph that Taylor crossed the line, and the deposition testimony from Morales that
the gantry struck the right-side mirror of the truck in front of Morale’s truck, and
several trucks in front of his truck had to move out of the way of the gantry that
had veered out of its lane.
The Port argues that there is overwhelming evidence suggesting that Taylor
was not negligent. For instance, Taylor asserted in his declaration that Morales was
in a blind spot because cargo containers blocked the “wharf side leg of the [gantry]
from view.” The Port’s Policy warns truck drivers that the gantry operator “has a
very limited view of the blindside” and to use “extreme caution when in the area of
[a gantry because] . . . . the [gantry] operator has limited visibility due to the
[gantry’s] cab configuration.” The Port argues there is no evidence to suggest that
Taylor failed to keep a proper lookout or failed to maintain attention or that he was
in any manner distracted. Additionally, the Policy states that gantry operators
“always have the right of way.” While this evidence may support a conclusion that
Taylor did not breach a duty, there is also evidence in the record that supports the
opposite conclusion. See id. Viewing the evidence in the light most favorable to
Morales, and indulging every reasonable inference therefrom, Miranda, 133
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S.W.3d at 226, we conclude that Morales has presented sufficient evidence to raise
a genuine issue of fact concerning Taylor’s alleged breach of duty. See id.
2. Morales raised a fact issue regarding causation
The Port also argues that Morales failed to raise a genuine issue of fact
regarding causation. The Port asserts that Morales had both pre-existing and
subsequent injuries in the same areas of his body due to prior motor-vehicle
accidents. However, Morales points out that while some injuries were to his back
and neck, those injuries were exacerbated, while other of his claimed injuries were
not previously complained of. The MRI before the gantry accident showed that
Morales had a 1.7mm herniation at C5-C6 area; the post-gantry-accident MRI
showed that the herniation increased to 2.5mm. Likewise, the herniation at C6-C7
area was 2.0mm pre-accident but 2.5mm post-accident, there was an MRI finding
of a radial fissure after the gantry accident at L3-L4 that was not found in the MRI
results from before the gantry accident, and the herniation at L5-S1 had increased
from 1.8mm to 2.0mm. Additionally, the MRI taken after the gantry accident
revealed that Morales had “[m]ild subacromial-subdeltoid bursitis” and “mild
glenohumeral joint effusion.” These are injuries that did not exist prior to the
gantry accident.
The Port additionally contends that Wiederholz’s medical opinion on
causation was conclusory; thus, Morales allegedly failed to provide expert
testimony to demonstrate that his injuries were caused specifically by the gantry
accident. However, Wiederholz’s opinion indicates he was aware of Morales’s
previous accidents. He noted that after the prior accident, Morales was able to go
back to work after a short period of therapy and that Morales was not experiencing
pain prior to the gantry accident. Additionally, before opining that the gantry
accident caused Morales’s injuries, Wiederholz performed an extensive clinical
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examination of Morales. Wiederholz found that Morales suffered from restricted
range of motion in the cervical area with lateral ending, sciatic pain on the left side,
and a restricted range of motion in the lumbar area. Wiederholz also indicated in
his medical report that he had reviewed Morales’s MRIs and that the MRIs
correlated with his clinical findings during the exam. Evidence from an expert is
deemed conclusory when a conclusion is stated without an explanation or factual
substantiation. See, e.g., LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006)
(concluding that the expert’s evidence was conclusory because the physician
simply stated “in my opinion, the conduct of [LMB] substantially caused Ernestina
Moreno’s injuries and death”); Aguirre v. Vasquez, 225 S.W.3d 744, 755 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (concluding that the following expert
statement was conclusory: “The decision to voluntarily stop in a lane of an
interstate highway is grossly negligent. This action goes far beyond anything a
person utilizing ordinary care would be expected to do”). We do not agree that
Wiederholz’s medical report is conclusory; Wiederholz explained his medical
opinion and the underlying facts upon which that conclusion was based. See Rorie
v. Harris Cnty., No. 14-06-01146-CV, 2008 WL 878938, at *4 (Tex. App.—
Houston [14th Dist.] Apr. 3, 2008, no pet.) (“A statement is conclusory if it does
not provide underlying facts to support the conclusion.”). Thus, we conclude that
Morales presented sufficient evidence to raise a fact issue concerning causation.
3. Summary
We conclude that Morales presented at least a scintilla of evidence to raise
genuine issues of fact as to each element of his negligence claim. Accordingly, the
trial court did not err in denying the Port’s motion for summary judgment. We
overrule the Port’s sole issue.
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III. CONCLUSION
We affirm the order of the trial court.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Wise, Poissant, and Wilson.
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