NO. 07-10-00013-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 28, 2011
RANDY BROWN, APPELLANT
v.
BILL HOLMAN AND
CLAYTEX PROPERTIES, INC., APPELLEES
FROM THE 97TH DISTRICT COURT OF CLAY COUNTY;
NO. 2008-0000187C-CV; HONORABLE VICKI ISAACS, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Appellant Randy Brown sued his employer, ClayTex Properties, Inc., alleging he
sustained personal injuries in the course and scope of employment. ClayTex is a non-
subscriber of workers’ compensation insurance. ClayTex moved for summary judgment
alleging, among other grounds, an act of Brown was the sole proximate cause of his
injury. The trial court granted ClayTex a summary judgment and this appeal followed.
We will affirm the judgment of the trial court.
Background
Jack Ellis, president of ClayTex, instructed Brown to clean out a storage building
at the home of a ClayTex shareholder, Bill Holman. Among the many items in the
storage building were several clay molds of varying weights. Ellis and Brown expected
the job would take several days to complete. Brown used a ClayTex pickup truck.
The backyard of Holman’s home is surrounded by a three-rail fence. The rails
are two-inch pipe, hung between brick pillars. The storage building is inside the fence.
To avoid interfering with Holman’s use of his driveway, Ellis instructed Brown to park the
pickup truck behind the fence. Ellis otherwise gave Brown no specific instructions on
how to complete his task of hauling the contents of the storage building to another
location. In the course of the work, Brown attempted to climb the fence while holding a
sixty-pound clay mold with both hands. While straddling the fence Brown lost his footing
and fell directly onto the top rail of the fence, injuring one of his testicles.
ClayTex moved for summary judgment on several grounds including the defense
of sole proximate cause. The trial court granted summary judgment without stating the
ground relied on and Brown appeals.
Analysis
Through two issues focusing on breach of duty by ClayTex and proximate cause,
Brown asserts the existence of an issue of material fact precluding summary judgment.
We will address Brown’s second issue, concerning proximate cause, as it is dispositive
of the appeal.
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Our review of a summary judgment is de novo. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005). When summary judgment is granted on a traditional
motion, we adhere to the following rules:
(1) The movant has the burden of showing that there is no
genuine issue of material fact and that it is entitled to
judgment as a matter of law; (2) in deciding whether there is
a disputed material fact issue precluding summary judgment,
evidence favorable to the nonmovant will be taken as true;
and (3) every reasonable inference must be indulged in favor
of the nonmovant and any doubts must be resolved in favor
of the nonmovant.
Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) (citing Nixon v. Mr.
Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)); Tex. R. Civ. P. 166a(c). A
defendant moving for summary judgment is entitled to summary judgment if it
conclusively negates one essential element of the plaintiff’s cause of action. Little v.
Tex. Dep’t of Crim. Justice, 148 S.W.3d 374, 381 (Tex. 2004) (citing Randall’s Food
Mkts. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1994)). When the trial court does not
specify the grounds for its grant of summary judgment, “the summary judgment should
be affirmed if any of the theories advanced are meritorious.” Dow Chem. Co. v. Francis,
46 S.W.3d 237, 242 (Tex. 2001) (quoting Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.
1989)).
By traditional motion, ClayTex moved for summary judgment on the ground that
an act of Brown was the sole proximate cause of the injury he sustained. Brown argues
on appeal the instruction of ClayTex to park behind the fence presents a question of
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material fact on causation precluding the conclusive establishment of sole proximate
cause.
An employer that does not subscribe to the Texas workers’ compensation
insurance program foregoes certain defenses. See Tex. Lab. Code Ann. § 406.033
(West 2006). However, a non-subscribing employer is entitled to the defense that the
actions of its employee were the sole proximate cause of the employee’s injury. Najera
v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 371, 207 S.W.2d 365, 367 (1948) (in
non-subscriber case, finding against injured worker on sole proximate cause issue
would have prevented recovery); Hall v. Timmons, 987 S.W.2d 248, 255 (Tex.App.—
Beaumont 1999, no pet.) (non-subscribing employer may defend on ground that
employee was guilty of some act which was the sole proximate cause of her injury).
See also Kroger Co. v. Keng, 23 S.W.3d 347, 352 (Tex. 2000) (citing Brookshire Bros.
v. Wagnon, 979 S.W.2d 343, 347 (Tex.App.--Tyler 1998, pet. denied) (submitting an
employee’s fault improper unless the submission is on sole proximate cause)).
Sole proximate cause is an inferential rebuttal defense. Walzier v. Newton
Trucking Co., 27 S.W.3d 561, 564 (Tex.App.--Amarillo 2000, no pet.) (citing American
Jet., Inc. v. Leyendecker, 683 S.W.2d 121, 126 (Tex.App.--San Antonio 1984, no writ)).
“The basic characteristic of an inferential rebuttal is that it presents a contrary or
inconsistent theory from the claim relied upon for recovery.” Select Ins. Co. v. Boucher,
561 S.W.2d 474, 477 (Tex. 1978). Specifically, evidence illustrating sole proximate
cause does not tend to interject an independent basis for denying recovery for the
plaintiff once he establishes a prima facie case. Rather, it tends to disprove an element
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of the plaintiff’s cause of action or the existence of the prima facie case. Walzier, 27
S.W.3d at 564; Hall, 987 S.W.2d at 255 (citing Holiday Hills Retirement and Nursing
Center, Inc. v. Yeldell, 686 S.W.2d 770, 775 (Tex.App.--Fort Worth 1985), rev’d on other
grounds, 701 S.W.2d. 243 (Tex. 1985)).
For ClayTex to obtain summary judgment on the basis of sole proximate cause, it
had to prove as a matter of law that Brown’s own conduct was the only proximate cause
of his injury. Walzier, 27 S.W.3d at 563. Cf. Union Pump Co. v. Allbritton, 898 S.W.2d
773 (Tex. 1995), abrogated on other grounds by Ford Motor Co. v. Ledesma, 242
S.W.3d 32, 45-46 (Tex. 2007) (summary judgment proper because the defendant’s
action was not the proximate cause of the plaintiff’s injury as a matter of law).
Proximate cause encompasses two essential components: a cause in fact and
foreseeability. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). Cause
in fact requires the conduct of an actor is a “substantial factor in bringing about the
injury which would not otherwise have occurred.” Union Pump, 898 S.W.2d at 775. See
also Lear Siegler, Inc. v. Perez 819 S.W.2d at 470, 472 (Tex. 1991) (quoting
Restatement (Second) of Torts § 431 cmt. a (1965)). The word “substantial” in this
context means, “the [actor’s] conduct has such an effect in producing harm as to lead
reasonable men to regard it as a cause.” Lear Siegler, 819 S.W.2d at 472.
Foreseeability means the actor, as a person of ordinary prudence, should have
anticipated the dangers his negligent act created. Carr v. Jaffe Aircraft Corp., 884
S.W.2d 797, 803 (Tex.App.--San Antonio 1994, no writ). The general danger of the
conduct must be foreseeable, not the precise sequence of events producing the harm.
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Id. at 804. Here, the general danger was that of injury to Brown from the requirement
that he negotiate the fence in some manner to load the clay molds into the pickup.
As noted, the fence presented a barrier between the storage building and the
pickup consisting of the three rails of two-inch diameter pipe. Brown acknowledged
there was a gate in the fence. In a summary judgment affidavit, Brown stated the gate
was “about eighty feet from the storage area.” Through deposition testimony, Brown
agreed that no one from ClayTex instructed him where to park the truck behind the
fence, instructed him to climb the fence with objects for loading, or instructed him not to
use the gate for loading. Rather, Brown was free to park the truck at the gate for
loading. Brown also agreed he could have lifted objects over the fence1 and placed
them in the pickup truck or on its tailgate.2 ClayTex gave Brown no time period for
completing the assignment. Brown, however, wished to finish the job quickly, to
demonstrate diligence. Accordingly, he chose to load the truck by climbing over the
fence. He testified he climbed the fence at least fifty times while loading the pickup
truck.
1
The summary judgment record contains varying evidence concerning the
weight of the clay molds. Ellis testified the smaller molds weighed as little as two or
three pounds, and the heaviest molds no more than twenty-five pounds. For purposes
of our review, we accept Brown’s testimony that the mold he carried when he slipped
weighed about sixty pounds. Our opinion would be unchanged whether the mold
weighed twenty-five or sixty pounds.
2
The summary judgment record does not establish the height of the rails of the
fence. Photographs depicting a pickup truck parked behind the fence show the bottom
rail at a height about mid-way between the ground and the top of the truck’s tires; the
middle rail at about the height of the truck’s rear bumper; and the top rail at a height
several inches above the truck’s extended tailgate but well below the top of the
sidewalls of its cargo area.
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Whether an intervening causal agent was the sole proximate cause of an injury
or occurrence is ordinarily a question for the trier of fact, but it may become a question
of law if the facts are without material dispute and only one reasonable inference may
be drawn from the facts. Fitzsimmons v. Brake Check, Inc., 832 S.W.2d 446, 449
(Tex.App.--Houston [14th Dist.] 1992, no writ) (finding as a matter of law sole cause of
accident was third party driver’s failure to maintain assured clear distance); Wilson v.
Cincinnati, Inc., No. 07-00-0344-CV, 2001 Tex. App. Lexis 339, at *9 (Tex.App.--
Amarillo Jan. 17, 2001, no pet.) (not designated for publication) (affirming summary
judgment for product manufacturer that non-party employer’s conduct was sole
proximate cause of employee’s injury).
Brown’s decision to climb over the fence with the mold is readily seen as a
proximate cause of his injury. Claytex did not require him to negotiate the fence in a
particular manner. He was free to choose to load the truck over or through the fence
rails, or at a gate. He chose to scale the fence while carrying the clay mold in both
hands.3 While straddling the fence, he slipped and sustained the injury of which he
complains. The summary judgment record conclusively establishes that the injury
would not have occurred but for his climbing the fence, and a person of ordinary
prudence would have anticipated the danger of slipping while scaling the pipe fence
with a heavy object held in both hands. See International-Great N. R. R. Co. v. Lowry,
132 Tex. 272, 278-80, 121 S.W.2d 585, 588-89 (1938) (in F.E.L.A. case, foreseeable
3
Brown agreed during his deposition testimony that while he had climbed such a
fence before carrying a fishing pole and tackle box, on this occasion he was
“overweighted.”
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cause of railroad employee’s personal injuries was not employer’s failure to stop train
carrying employee at worksite as requested; rather, sole proximate cause of employee’s
personal injuries was his independent decision to jump from moving train when it failed
to stop at worksite).
Affirmance of the trial court’s summary judgment, however, requires us to
conclude Brown’s conduct was the sole proximate cause of his injury. See First
Assembly of God, Inc. v. State Utils. Elec. Co., 52 S.W.3d 482, 493 (Tex.App.--Dallas
2001, no pet.) (quoting Goolsbee v. Tex. & N.O.R. Co., 150 Tex. 528, 533, 243 S.W.2d
386, 388 (1951)) (“‘Sole proximate cause’ means the ‘only’ proximate cause”);
Cincinnati, Inc., 2001 Tex. App. Lexis 339, at *9 (summary judgment record supported
only one reasonable inference, that non-party’s conduct was sole proximate cause of
plaintiff’s injuries). In Lowry, the court held that the employer railroad’s failure to stop
the train to allow its employee Lowry to depart at his worksite, though a factor in
bringing about the injury he suffered when he jumped from the moving train, was not a
proximate cause of the injury because his action was not foreseeable. 121 S.W.2d at
588. What was foreseeable, the court said, was that Lowry would have been
inconvenienced and delayed by his employer’s failure to stop to permit him to depart,
not that he would decide to jump from the train rather than delay his work. Id. We find
the analysis applicable here. The foreseeable consequences of Ellis’s instruction to
Brown to park the pickup behind the fence were inconvenience and delay, not that his
chosen method of negotiating the fence would lead to his injury. Indulging every
reasonable evidentiary inference favoring Brown, and resolving any doubts in his favor,
we nonetheless conclude the undisputed evidence conclusively establishes that
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Brown’s actions were the sole proximate cause of his injury. Accordingly, the trial court
did not err by granting summary judgment to Claytex.
We overrule Brown’s second issue. Because doing so requires that we affirm the
judgment, discussion of his first issue is unnecessary to disposition of the appeal. Tex.
R. App. P. 47.1. The trial court’s judgment is affirmed.
James T. Campbell
Justice
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