Zelma Hunt, Individually and as Administratrix of the Estate of Frandora Kaye Jones v. Killeen Imports, Inc.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00093-CV

Zelma Hunt, Individually and as Administratrix of the Estate of

Frandora Kaye Jones, Appellant

Killeen Imports, Inc., Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT

NO. 166,735-B, HONORABLE RICK MORRIS, JUDGE PRESIDING

Zelma Hunt, individually and as administratrix of the estate of her daughter, Frandora Kaye Jones, sued Killeen Imports, Inc. ("Killeen") for wrongful death and survival damages arising out of a fatal collision suffered by Jones while driving an automobile purchased from Killeen.⁽¹⁾ The trial court granted summary judgment in favor of Killeen. We reverse the summary judgment and remand the cause to the trial court.

BACKGROUND

On April 28, 1994, Frandora Kaye Jones purchased a Mazda MX-3 automobile from Killeen Imports. Killeen admits, for purposes of summary judgment, that while it represented to Jones that she was purchasing a 1994 Mazda MX-3,⁽²⁾ it actually sold her a 1993 model. Driver's side air bags were standard equipment on 1994 Mazda MX-3 automobiles but were not available as standard equipment on the 1993 model. An insurance agent testified that she gave Jones a 20% discount on her automobile insurance premium for a policy in effect from November 10, 1995 through May 10, 1996 based upon Jones's statement "that her 1994 Mazda had a driver side airbag."⁽³⁾

On November 28, 1995, while driving on Interstate 20 in Louisiana, Jones fell asleep and was killed when her car left the road and struck a tree. The traffic accident report completed by the investigating officer confirms that Jones's vehicle was a 1993 Mazda MX-3 with no air bags. Jones's mother, Zelma Hunt, testified that an owner's manual for a 1994 Mazda MX-3 was recovered from the wreckage of Jones's vehicle.⁽⁴⁾ The manual describes a "supplemental air bag restraint system" designed to provide protection in a front-end accident for the driver and front seat passenger "in addition to the three-point seat belt system."

The official autopsy describes the cause of death as "massive generalized blunt trauma with fatal injuries to the head and thorax." Dr. George McCormick, II, a forensic pathologist and president of the company that performed the official autopsy, reviewed the report and concluded that, had there been an air bag restraint system in Jones's vehicle, her chances for survival would have significantly increased. Specifically, McCormick opined that "[w]hile I can not say with absolute certainty that she would have survived the accident, I believe that more probably than not she would have lived with the use of an air bag restraint in conjunction with the three point restraint system."⁽⁵⁾

Hunt sued Killeen for negligence, fraud, misrepresentation under Restatement of Torts section 402B, violations of the Deceptive Trade Practices Act ("DTPA"), and breach of express warranty. Hunt alleged that Jones relied on Killeen's representation that the Mazda was a 1994 model when Jones purchased the car. Hunt contended that a reasonable implication from Killeen's representation was that the vehicle would have all the safety features of a 1994 model, including a driver's side air bag. Hunt argued that Killeen knew or should have known that the vehicle it sold to Jones was a 1993 model, and its failure to disclose to Jones that the vehicle did not have air bags was a proximate cause of her death.

Killeen filed a motion for summary judgment alleging primarily that its misrepresentation was not the legal cause of Jones's death because the causal link between the misrepresentation and the accident was too attenuated. Killeen also argued that it had no duty to tell Jones whether the vehicle she purchased had a driver's side air bag. Finally, in response to Hunt's remaining causes of action, Killeen contended that neither Restatement of Torts section 402B nor the DTPA was applicable to the facts of the case and that all of Hunt's causes of action were barred by limitations.⁽⁶⁾ Without specifying the grounds on which it relied, the trial court granted summary judgment in favor of Killeen.

DISCUSSION

In reviewing a summary judgment in which the trial court has not provided the basis for its decision, we must review each ground asserted in the motion and affirm the trial court's judgment if any of these grounds is meritorious. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989). Summary judgment is proper only if the movant establishes that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.⁽⁷⁾ See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675-79 (Tex. 1979). On appeal from a summary judgment, we take the evidence favorable to the non-movant as true and indulge every reasonable inference in favor of the non-movant. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We do not consider evidence that favors the movant's position unless it is uncontroverted. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). A defendant seeking summary judgment based on a plaintiff's inability to prove its case must conclusively disprove at least one element of each of the plaintiff's causes of action. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). Because the propriety of a summary judgment is a question of law, we review the trial court's decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). The question before this Court is whether Killeen established as a matter of law that neither its acts nor its omissions were a legal cause of Jones's injuries and death.

It is undisputed that all of Hunt's causes of action require her to show that Killeen's misrepresentation that the vehicle purchased by Jones was a 1994 Mazda MX-3 was either a proximate or producing cause of Jones's injuries. Killeen has conceded for purposes of summary judgment that it misrepresented the model year of the Mazda MX-3 to Jones and that this misrepresentation influenced Jones's decision to purchase the vehicle. Notwithstanding, Killeen contends that, as a matter of law, its misrepresentation cannot be causally linked to Jones's death because her fatal accident occurred approximately a year and a half after the misrepresentation, and because the nature of the misrepresentation--that the Mazda was a 1994 and not a 1993--was unrelated to the circumstances of the accident. Hunt argues that Killeen has not established as a matter of law a lack of causation between its acts or omissions and Jones's death.⁽⁸⁾

Proximate cause is generally a question of fact for the jury to determine. See El Chico Corp. v. Poole, 732 S.W.2d 306, 314 (Tex. 1987); Strakos v. Gehring, 360 S.W.2d 787, 792 (Tex. 1962). A lack of proximate cause may be established as a matter of law where the evidence is without material dispute and the circumstances are such that reasonable minds could not arrive at a different conclusion. See Missouri Pac. R.R. Co. v. American Statesman, 552 S.W.2d 99, 104 (Tex. 1977); Rodriguez v. Moerle, 963 S.W.2d 808, 819 (Tex. App.--San Antonio 1998, pet. denied). It may also be a question of law when the relationship between the plaintiff's injuries and the defendant's acts or omissions is attenuated or remote. See Lear Siegler, 819 S.W.2d at 472. There may be more than one proximate cause of an event. See Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992).

The elements of proximate cause are cause in fact and foreseeability. See Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995). The test for cause in fact is whether an act or omission was a substantial factor in bringing about injury that would not otherwise have occurred. See id. (citing McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980)). Cause in fact is not shown if the defendant's negligence did no more than furnish a condition that made the injury possible. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995); Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995). "The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of resulting injuries . . . [and] justify the conclusion that such injury was the natural and probable result thereof." Doe, 907 S.W.2d at 477 (quoting Boyd v. Fuel Distribs., Inc., 795 S.W.2d 266, 272 (Tex. App.--Austin 1990, writ denied)). Even if the injury would not have happened but for the defendant's conduct, the connection between the defendant and the plaintiff's injuries may be too attenuated to constitute legal cause. See Union Pump, 898 S.W.2d at 775. Whether a particular act or omission is a cause in fact of an injury is a particularly apt question for jury determination. See Farley v. M.M. Cattle Co., 529 S.W.2d 751, 756 (Tex. 1975).

Proximate cause also requires that the act or omission complained of have been foreseeable. See Union Pump, 898 S.W.2d at 775. Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. See Doe, 907 S.W.2d at 478 (citing Nixon, 690 S.W.2d at 549-50). The particular accident need not be foreseen, but the injury must be of such a general character as might reasonably have been anticipated. See Nixon, 690 S.W.2d at 551. Foreseeability requires more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defendant's conduct brings about the injury. See Doe, 907 S.W.2d at 478 (citing Restatement (Second) of Torts § 435(2) (1965)). The question of foreseeability, and proximate cause generally, involves a practical inquiry based on "common experience applied to human conduct." Id. (citing City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987)). If foreseeability involves the resolution of disputed facts or inferences, legal resolution is inappropriate. See Mitchell v. Missouri-Kan.-Tex. R.R. Co., 786 S.W.2d 659, 662 (Tex.), cert. denied, 498 U.S. 896 (1990). Foreseeability may, in attenuated, remote circumstances, be determined by the court. See Lear Siegler, 819 S.W.2d at 472; Snellenberger v. Rodriguez, 760 S.W.2d 237, 238 (Tex. 1988).

A producing cause is an efficient, exciting, or contributing cause, which in the natural sequence of events, produces injuries or damages. See Brown v. Bank of Galveston, 963 S.W.2d 511, 514 (Tex. 1998) (citing Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex. 1995)). Foreseeability is not a requirement of producing cause; rather, producing cause requires that the conduct complained of must be a substantial factor in bringing about the plaintiff's injuries. See id. There can also be more than one producing cause. See Rourke v. Garza, 530 S.W.2d 794, 801 (Tex. 1976).

All of the cases Killeen cites in support of its argument that causation is absent are distinguishable from the circumstances presented here. See Doe, 907 S.W.2d at 478; Union Pump, 898 S.W.2d at 776; Lear Siegler, 819 S.W.2d at 471. In Doe, the plaintiffs sought damages based on the sexual molestation of minor boys by a man named Mullens, who had worked as a volunteer at the Boys Club. See Doe, 907 S.W.2d at 476. The molestations occurred on trips not sponsored by the Boys Club. The plaintiffs contended that the Boys Club was negligent because a background check would have revealed a conviction for driving while intoxicated. See id. The plaintiffs also argued that the Boys Club made several misrepresentations that resulted in injury, including that the club provided a "wholesome environment," that it "checked out" volunteers "thoroughly," and that Mullens "seemed to be okay." See id. at 479.

In holding that the Boys Club's conduct was not a cause in fact of the sexual assault, the Doe court concluded that Mullens's presence at the club was not due to breach of any duty to screen or investigate. See id. at 478. The court also observed that even if the alleged misrepresentations were false, they did not induce the plaintiffs into doing business with the Boys Club as the relationship between Mullens and the plaintiffs developed independently of the Club's relationship with the plaintiffs. See id. at 481.

The present case is distinguishable from Doe. Viewing the summary judgment evidence in the light most favorable to the non-movant, Jones's decision to purchase the 1993 Mazda MX-3 from Killeen was influenced by Killeen's misrepresentation that the vehicle was a 1994 model. See Bekins Moving & Storage Co. v. Williams, 947 S.W.2d 568, 579 (Tex. App.--Texarkana 1997, no pet.) (moving company's representations concerning methods and procedures were made to obtain Williams's business and were thus cause in fact of damage to her belongings). We also must indulge the reasonable inference that Jones believed her vehicle came equipped with all the standard safety features of a 1994 model, including a driver's side air bag.⁽⁹⁾ Based on the testimony of Dr. McCormick, which we must accept as true, the lack of an air bag was a substantial factor in bringing about Jones's death. While it is true that, given a negligent act and subsequent injury, it does not logically follow that "the two must be causally connected," see Doe, 907 S.W.2d at 481, Killeen has failed to establish conclusively that the causal connection between its misrepresentation and Jones's death was broken in the manner that occurred in Doe.

The present case is also distinguishable from Union Pump and Lear Siegler. In Union Pump, a fire erupted at a chemical plant when a pump manufactured by Union Pump ignited. See 898 S.W.2d at 774. After the fire was extinguished, a problem arose with a nitrogen purge valve, and two plant employees were instructed to block it off. When they returned from the valve location along one of several alternate paths, one of the employees slipped and fell off a pipe rack that allegedly was wet from fire-extinguishing liquids. The court concluded that, even if the pump fire caused by Union Pump's product was a "philosophical" or "but for" cause of the employee's injuries, "the forces generated by the fire had come to rest when [the employee] fell off the pipe rack." Id. at 776.

The court in Union Pump relied upon Lear Siegler as the standard for determining the limits of legal causation. See id. at 775-76. In Lear Siegler, an employee of the Texas Highway Department was driving a truck pulling a flashing warning sign behind a highway maintenance vehicle to warn oncoming traffic. When the sign malfunctioned, the employee stopped the truck and attempted to repair it. As he did so, the sleeping driver of an oncoming vehicle struck the sign, which in turn struck the employee. The court, reasoning that the proper operation of the sign would have had no effect on the sleeping driver, concluded that the sign's malfunction was too remotely connected with the employee's injuries to constitute legal cause. See Lear Siegler, 819 S.W.2d at 472.

In both Union Pump and Lear Siegler, legal causation was absent because the defendant's negligence simply created a condition that drew the plaintiff to the scene of the accident. The court in Union Pump concluded that the forces generated by the defendant's negligence had come to rest at the time of the plaintiff's injury, while the injuries suffered by the plaintiff in Lear Siegler were caused not by the defendant but by an independent and intervening third party. The summary judgment proof in this case fails to establish as a matter of law that the forces generated by Killeen's misrepresentation of the model year of the vehicle purchased by Jones had come to rest when Jones suffered her fatal injuries. The danger associated with Jones's erroneous belief that her vehicle possessed all the standard safety equipment of a new 1994 model in no way dissipated between Jones's purchase and her fatal accident. See Samco Properties, Inc. v. Cheatham, 977 S.W.2d 469, 477 (Tex. App.--Houston [14th Dist.] 1998, pet. denied) (dangerous condition of Sam's Wholesale Club sign continued to exist at time electrician fell through bottom of sign and sustained fatal injuries); Henry v. Houston Lighting & Power Co., 934 S.W.2d 748, 752 (Tex. App.--Houston [1st Dist.] 1996, writ denied) (crisis created when power company's contractor severed underground gas line was on-going when repairman suffered injuries evacuating the area). Moreover, Killeen's misrepresentation did not simply cause Jones to be in the wrong place at the wrong time; rather, the misrepresentation directly led to Jones's operation of the subject of the misrepresentation, a vehicle lacking an integral safety component. See Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989); Overton Memorial Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex. 1975). The summary judgment proof demonstrates that Jones's death was directly related to the lack of a driver's side air bag. Finally, there was no negligent third party, as in Lear Siegler, to disrupt the causal connection between Killeen's misrepresentation and Jones's death. Because the circumstances of this case are distinguishable from the cases relied upon by appellant,⁽¹⁰⁾ we conclude that Killeen has failed to establish conclusively that its misrepresentation was not a cause in fact of Jones's death.

Furthermore, Killeen has not established as a matter of law that Jones's death was not a foreseeable consequence of the danger created by the misrepresentation. Killeen's general manager acknowledged that the 1993 Mazda MX-3 sold to Jones was not equipped with a driver's side air bag and that driver's side air bags are an important safety feature designed to prevent injuries of the type sustained by Jones. Driving a vehicle without such a safety device poses a foreseeable risk that a person of ordinary intelligence should anticipate. See Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998). While the particulars of Jones's one-car accident on a highway in Louisiana might not have been foreseen, her injury was of such a general character as might reasonably have been anticipated. See Nixon, 690 S.W.2d at 551.

CONCLUSION

Because Killeen has failed to establish as a matter of law the absence of either proximate or producing cause, we reverse the summary judgment granted in favor of Killeen and remand the cause to the trial court. Having concluded that Killeen has failed to conclusively disprove causation, the only element common to each of the plaintiff's causes of action, we need not consider the other grounds raised in Killeen's motion for summary judgment.

Jan P. Patterson, Justice

Before Justices Jones, Kidd and Patterson

Reversed and Remanded

Filed: December 16, 1999

Do Not Publish

1. Killeen filed special exceptions to Hunt'

s original petition. In special exception number four, Killeen argued that Hunt did not have standing to sue in her individual capacity. Hunt amended her petition to delete reference to suit as an individual, but the trial court's order granting Killeen's motion for summary judgment does not reflect the amendment. While the notice of appeal purports to perfect an appeal by Hunt individually and as administratrix of the estate of Frandora Kaye Jones, Hunt acknowledges in her brief that she seeks relief from this Court only in her capacity as administratrix of her daughter's estate.

2. Several forms signed by Jones and Killeen representatives at the time of the sale, including the Buyer's Order form, the Mazda Cash Back Customer Incentive Program form, the Odometer Disclosure Statement, and the New Vehicle Extended Service Agreement, recite that the vehicle purchased by Jones was a 1994 Mazda MX-3.

3. Killeen objected to the affidavit of the insurance agent on the grounds that the insurance policy attached to the affidavit was hearsay and of no probative value to any matter raised in Killeen's motion for summary judgment. The trial court did not rule on this objection.

4. Because Hunt states in the final sentence of her brief affidavit that the owner's manual was recovered "from the wreckage of my daughter's vehicle to the best of my knowledge and belief," Killeen argues that the affidavit is defective because it fails to unequivocally represent that it is based on personal knowledge. See Humphreys v. Caldwell, 888 S.W.2d 469, 470-71 (Tex. 1994) (affidavit that does not positively and unqualifiedly represent facts disclosed to be true and within affiant's personal knowledge is legally insufficient). Killeen contends that since Hunt added the word "belief" in the final sentence, she is not stating that the facts in that sentence are based upon her personal knowledge. As a qualification to the last sentence, the language "to the best of my knowledge and belief" does not deprive the affidavit--or even the sentence--of evidentiary value. See Chambers v. Hermann Hosp. Estate, 961 S.W.2d 177, 187-88 (Tex. App.--Houston [1st Dist.] 1996), rev'd on other grounds, 970 S.W.2d 542 (Tex. 1998), cert. denied, 119 S. Ct. 546 (1999). In a summary judgment proceeding, we are required to indulge all inferences of factual matters in favor of the non-movant, and adding "belief" to the final sentence does not affirmatively show that Hunt did not have personal knowledge of the facts. Moreover, Hunt averred in the affidavit'

s jurat that she was "personally acquainted with the facts herein stated." Finally, we reject Killeen's contention at oral argument that, although the trial court did not rule upon Killeen's objections to the affidavits of Hunt and the insurance agent, a finding that the affidavits were legally insufficient is implicit in the judgment. See Tex. R. App. P. 38.1(e).

5. The record indicates that Jones's 1993 Mazda MX-3 was equipped with seatbelts and that she was wearing her seatbelt at the time of the accident.

6. Killeen has conceded that the statutory limitations period began to run on the date of Jones's death, not on the date of its misrepresentation. Therefore, we need not consider the issue of limitations.

7. In her appellate brief, Hunt labeled Killeen's motion for summary judgment a "no evidence" motion. See Tex. R. Civ. P. 166a(i). Killeen acknowledged in its brief and at oral argument that it moved for summary judgment on grounds that Hunt could not prevail on her claims as a matter of law; thus, we will apply traditional summary judgment standards under which Killeen must establish the absence of a genuine issue of material fact. See id. 166a(c).

8. Both parties also fully briefed the issue of whether Killeen had a duty to disclose to Jones that the vehicle she purchased did not have an air bag. Duty is an element of Hunt's negligence cause of action. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (cause of action for negligence consists of three elements: (1) legal duty owed by one party to another; (2) a breach of that duty; (3) damages proximately caused by that breach). Because the issue of whether Killeen owed Jones a duty of disclosure impacts only one cause of action, we need not address it to resolve this appeal.

9. Causation does not have to be supported by direct evidence; circumstantial evidence and inferences drawn therefrom will sufficiently support a finding of causation. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex. 1992); City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987). The trier of fact is afforded broad latitude to infer proximate cause from the evidence and circumstances surrounding an accident, especially when it is not possible to produce direct proof of proximate cause. See Harris v. Laquinta-Redbird Joint Venture, 522 S.W.2d 232, 236 (Tex. Civ. App.--Texarkana 1975, writ ref'd n.r.e.).

10. Killeen also relies upon Prudential Insurance Co. v. Jefferson Associates, Ltd., 896 S.W.2d 156, 161 (Tex. 1995)

. In Prudential, the purchaser of a building sued the seller for negligence, fraud, and DTPA violations based on an alleged misrepresentation. Because the court based its conclusion that the buyer's injury could not have been caused by the seller's misrepresentation on the existence of an "as is" provision in the contract, we find the case inapplicable.

cted to the affidavit of the insurance agent on the grounds that the insurance policy attached to the affidavit was hearsay and of no probative value to any matter raised in Killeen's motion for summary judgment. The trial court did not rule on this objection.

5. The record indicates that Jones's 1993 Mazda MX-3 was equipped with seatbelts and that she was wearing her seatbelt at the time of the accident.

Zelma Hunt, Individually and as Administratrix of the Estate of Frandora Kaye Jones v. Killeen Imports, Inc.

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