ACCEPTED
04-15-00336-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/2/2015 4:36:51 PM
KEITH HOTTLE
CLERK
Cause No. 04-15-00336-CV
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE FOURTH DISTRICT COURT OF APPEALS
9/2/2015 4:36:51 PM
KEITH E. HOTTLE
Clerk
SAN ANTONIO, TEXAS
ADOLFO J. CARRERA AND ESPERANZA GAYTAN, INDIVIDUALLY AND
ON BEHALF OF THE ESTATE OF ADOLFO CARRERA, DECEASED,
PLAINTIFFS/APPELLANTS,
v.
ALICE YANEZ,
DEFENDANT/APPELLEE,
BRIEF OF APPELLEE ALICE YANEZ
WILLIAM N. ALLAN, IV
State Bar No. 24012204
ALLAN, NAVA, GLANDER &
HOLLAND, PLLC
825 W. Bitters Road, Suite 102
San Antonio, Texas 78216
Telephone: (210) 305-4220
Telecopier: (210) 305-4219
Email: wallan@anglawfirm.com
Email: serveone@angawfirm.com
ATTORNEYS FOR APPELLEE
ALICE YANEZ
Oral Argument Requested
i
IDENTITY OF PARTIES AND COUNSEL
PLAINTIFFS/APPELLANTS: DEFENDANT/APPELLEE:
Adolfo J. Carrera Alice Yanez
Esperanza Gaytan
TRIAL COUNSEL FOR TRIAL COUNSEL FOR
PLAINTIFFS: DEFENDANT:
Marc Anthony Acuna William N. Allan, IV
State Bar No. 24064044 State Bar No. 24012204
Richard Storm (Former Counsel, now Jacob A. Wittig
believed to practice with Villarreal & State Bar. No. 24054363
Begum LLC) ALLAN, NAVA, GLANDER &
State Bar No. 00786261 HOLLAND, PLLC
DAVIS LAW FIRM 825 W. Bitters Road, Ste. 102
10500 Heritage Blvd, Ste. 102 San Antonio, Texas 78216
San Antonio, Texas 78216 Telephone: (210) 305-4220
Telephone: (210) 444-444 Telecopier (210) 305-4219
Telecopier (210) 785-0806 Wallan@anglawfirm.com
MarkA@davislawfirm.com servone@anglawfirm.com
APPELLATE COUNSEL FOR APPELLATE COUNSEL FOR
APPELLANTS: APPELLEE:
Marc Anthony Acuna William N. Allan, IV
State Bar No. 24064044 State Bar No. 24012204
DAVIS LAW FIRM Jacob A. Wittig
10500 Heritage Blvd, Ste. 102 State Bar. No. 24054363
San Antonio, Texas 78216 ALLAN, NAVA, GLANDER &
Telephone: (210) 444-444 HOLLAND, PLLC
Telecopier (210) 785-0806 825 W. Bitters Road, Ste. 102
MarkA@davislawfirm.com San Antonio, Texas 78216
Telephone: (210) 305-4220
Telecopier (210) 305-4219
Wallan@anglawfirm.com
servone@anglawfirm.com
i
REFERENCE CITATION GUIDE
The Parties
This Brief may refer to the following:
Alice Yanez: “Defendant”, “Appellee”, and/or “Ms. Yanez”
Adolfo J. Carrera
Esperanza Gaytan collectively, “Plaintiffs” and/or “Appellants”
Adolfo Carrera “Decedent” and/or “Mr. Carrera”
The Record on Appeal
This Brief will refer to the record as follows:
Brief of Appellants “Appellants’ Brief, p.__”
Clerk’s Record “CR __”
1
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
REFERENCE CITATION GUIDE ......................................................................... ii
TABLE OF CONTENTS ......................................................................................... 2
INDEX OF AUTHORITIES .................................................................................... 3
STATEMENT OF THE CASE ................................................................................ 5
ISSUES PRESENTED ............................................................................................. 5
STATEMENT OF FACTS ....................................................................................... 6
SUMMARY OF THE ARGUMENT ....................................................................... 9
ARGUMENT AND AUTHORITIES..................................................................... 11
Issue No. 1: The Plaintiffs failed to offer more than a scintilla of evidence to
support their negligence and negligence per se claims where Plaintiffs
offered no legally probative evidence to establish that Ms. Yanez’s
operation of her vehicle breached a duty of care to Decedent, that this
alleged breach was the proximate cause of Decedent’s injuries, and
that Ms. Yanez violated Texas Transportation Code Sections
545.302(a)(7), 545.051(b), 548.604(a)(2), and 545.401(a). ............... 11
A. Standard of Review ...................................................................... 11
B. Appellants failed to offer more than a scintilla of evidence to
support their negligence claim where they offered no legally probative
evidence establishing that Ms. Yanez’s operation of her vehicle
breached a duty of care to Decedent. ................................................ 11
C. Appellants failed to offer more than a scintilla of evidence to
support their negligence claims where they offered no legally
probative evidence establishing that Ms. Yanez’s conduct was the
proximate cause of Decedent’s death. ................................................ 24
2
D. Appellants failed to offer more than a scintilla of evidence to
support negligence per se claims where they offered no legally
probative evidence establishing that Ms. Yanez operated her vehicle
in violation of Texas Transportation Code Sections 545.302(a)(7),
545.051(b), 548.604(a)(2), and 545.401(a) ........................................ 25
Issue No. 2: The trial court correctly granted Ms. Yanez’s traditional motion for
summary judgment based on the determination that she did not breach
a duty of care to the decedent. ............................................................ 27
A. Standard of Review ...................................................................... 27
B. The summary judgment should be affirmed because the evidence
establishes that Ms. Yanez did not breach a duty of care when she
attempted to exit the highway after her vehicle began overheating and
stalling. ............................................................................................... 28
C. The summary judgment should be affirmed because the evidence
establishes that Decedent’s negligence in looking down at his phone
or another object for several seconds prior to colliding with Ms.
Yanez’s vehicle was the proximate cause of the accident and his
death. .................................................................................................. 29
Issue No. 3: Appellants’ assertion that Ms. Yanez did not move for summary
judgment on appellants' wrongful death and survival claims is
misplaced and the trial court properly dismissed those claims. ........ 30
CONCLUSION....................................................................................................... 32
PRAYER................................................................................................................. 32
CERTIFICATE OF COMPLIANCE ...................................................................... 34
CERTIFICATE OF SERVICE ............................................................................... 34
3
INDEX OF AUTHORITIES
CASES:
Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001) ........................................ 31
Johnson & Johnson Med. Cen. v. Sanchez, 924 S.W.2d 925, 927 (Tex. 1996) ..... 28
Merrell Dow Pharms. Inc. v. Havne1, 953 S.W.2d 706, 711 (Tex. 1997) ............. 11
Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982) ................. 26, 27
Provident Life & Accident Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) .......... 28
Randall’s Food Mkts. v. Johnson, 891 S.W.3d 640, 644 (Tex. 1995).................... 28
Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345-46 (Tex. 1992) .................... 31
Sonnenberg v. Mike Smith Auto Plaza, 8 S.W.3d 850, 852 (Tex. App.—Beaumont
2000, no pet.) .......................................................................................................... 11
RULES:
TEX. R. CIV. P. 166a(c)......................................................................................... 28
TEX. R. CIV. P. 166(a)(i) .................................................................................. 7, 11
TEX. R. CIV. P. 329 ................................................................................................ 8
TEX. CIV. PRAC. & REM. CODE §§§71.001-71.004 ......................................... 31
TEX. CIV. PRAC. & REM. CODE §§§71.02........................................................ 31
CODES:
Texas Transportation Code Section §545.302(a)(7) .............................. 9, 11, 25, 26
Texas Transportation Code Section §545.05l(b) ................................... 9, 11, 25, 26
Texas Transportation Code Section §545.401(a) .................................. 9, 11, 25, 26
4
Texas Transportation Code Section §548.604(a)(2) .............................. 9, 11, 25, 26
STATEMENT OF THE CASE
Nature of the Case: Plaintiffs/Appellants Adolfo J. Carrera and Esperanza
Gaytan individually and on behalf of the estate of Adolfo
Carrera filed this lawsuit asserting Negligence,
Negligence Per se, and Wrongful Death & Survival
claims against Defendant Alice Yanez as a result of a
vehicle collision which took place on March 27, 2013.
Trial Court: The Honorable Dick Alcala, Visiting Judge sitting in the
131st Judicial District, Bexar County, Texas.
Trial Court Disposition: The trial court granted Defendant’s traditional and no
evidence motion for summary judgment and this appeal
ensued.
ISSUES PRESENTED
Issue No. 1: The Plaintiffs failed to offer more than a scintilla of evidence to
support their negligence and negligence per se claims where Plaintiffs
offered no legally probative evidence to establish that Ms. Yanez’s
operation of her vehicle breached a duty of care to Decedent, that this
alleged breach was the proximate cause of Decedent’s injuries, and
that Ms. Yanez violated Texas Transportation Code Sections
545.302(a)(7), 545.051(b), 548.604(a)(2), and 545.401(a).
Issue No. 2: The trial court correctly granted Ms. Yanez’s traditional motion for
summary judgment based on the determination that she did not breach
a duty of care to the decedent.
Issue No. 3: Appellants’ assertion that Ms. Yanez did not move for summary
judgment on appellants' wrongful death and survival claims is
misplaced and the trial court properly dismissed those claims.
5
STATEMENT OF THE FACTS
TO THE HONORABLE COURT OF APPEALS:
On March 27, 2013, Appellee, Ms. Yanez, was driving in the third lane from
the right on IH-10 near Vance Jackson, in San Antonio, Texas. (CR 452). Her vehicle
began over-heating and slowed. (CR 381). She turned on her blinker and hazard
lights and began looking to the right behind her in order to see if there was an
opening for her to change lanes to the right in order to exit the highway due to her
mechanical difficulties. (CR 383-387). She changed one lane to the right so that she
was then in the second lane from the right and continued looking behind her and to
her right so that she could move over and exit. (CR 411-412). The lone eyewitness to
the accident, Michele Power (“Ms. Power”), was driving her vehicle in the left
adjacent lane behind Ms. Yanez and witnessed the entire sequence of events leading
up to the accident. (CR 466-519). Decedent, Adolfo Carrera, was driving a Suzuki
sports motorcycle behind Ms. Power and changed to the second lane from the right
so that he was then situated behind Ms. Yanez. (CR 452). Ms. Power testified in her
deposition that Mr. Carrera began looking down at his cell phone or some other
object for several seconds while driving behind Ms. Yanez. (CR 477, lines 7-19). As
a result, Mr. Carrera failed to see that Ms. Yanez’s vehicle had slowed due to her
mechanical difficulties. (CR 157, lines 11-13). Mr. Carrera then struck the rear of
Ms. Yanez’s vehicle. (CR 168, lines 3-11). Mr. Carrera fell from his bike and landed
6
in the adjacent left lane. (CR 80). He was then run over by another vehicle and was
killed. (CR 80). The investigating officer attributed fault in the accident report to Mr.
Carrera for driver inattention and mobile phone use. (CR 454).
On, July 22, 2013, Mr. Carrera’s parents, Adolfo J. Carrera and Esperanza
Gaytan, brought a wrongful death and survival suit alleging negligence and
negligence per se causes of action against Ms. Yanez. (CR 1–5).
On July 22, 2014, Ms. Yanez filed both a no evidence and traditional motion
for summary judgment under Rule 166(a)(i), Tex. R. Civ. P. (CR 56). Ms. Yanez
moved for a no evidence motion for summary judgment on grounds that Plaintiffs did
not present legally probative evidence that Ms. Yanez breached a duty of care to Mr.
Carrera, that she was the proximate cause of Mr. Carrera’s injuries, or that she was
negligent per se. (Id.) Ms. Yanez moved for a traditional summary judgment on
grounds, inter alia, that there was no genuine issue of material fact that Ms. Yanez
did not breach a duty of care to Mr. Carrera, that Ms. Yanez was not negligent per
se, and that Mr. Carrera’s negligence, rather than Ms. Yanez’s conduct,
proximately caused the accident and his injuries. (Id.) Ms. Yanez’s evidence in
both motions included the certified accident report, the sworn deposition testimony
of eyewitness Michelle Power, the recorded statement of eyewitness Michelle
Power, and Plaintiffs’ responses to interrogatories and requests for production.
(Id.)
7
At a hearing held on March 26, 2015, the trial court granted Ms. Yanez’s no
evidence and traditional motion for summary judgment. (CR 548). The trial court
signed an Order at the hearing granting the motion. (Id.) Upon realizing that there
was a clerical error in the Order in which the title correctly listed both the no
evidence and traditional motion for summary judgment, but in which the body of
the Order only referenced the no evidence motion, Ms. Yanez’s counsel filed an
unopposed motion to correct the clerical error in the judgment under TRCP 329B
and an agreed corrected Order signed by Plaintiffs’ counsel that corrected the
clerical error in the body of the Order. (CR 549-553).
8
SUMMARY OF THE ARGUMENT
After considering Ms. Yanez’s no evidence and traditional motion for
summary judgment, the evidence presented by Ms. Yanez, and the argument of
counsel, the trial court correctly granted Ms. Yanez’s motion challenging
Plaintiffs’ negligence and negligence per se claims. Plaintiffs failed to bring forth
more than a scintilla of evidence to support the challenged elements of their
claims:
1. That Ms. Yanez breached a duty of care to Mr. Carrera;
2. That Ms. Yanez was the proximate cause of Mr. Carrera’s injuries; and
3. That Ms. Yanez was negligent per se in operating her vehicle in violation of
Texas Transportation Code Sections 545.302(a)(7), 545.051(b),
548.604(a)(2), and 545.401(a).
The trial court also correctly granted Ms. Yanez’s traditional motion for
summary judgment against Plaintiffs’ claims. The uncontroverted evidence
established that Ms. Yanez acted as a prudent driver by turning on her hazard lights
and attempting to exit the highway after her vehicle began to overheat. Mr.
Carrera’s negligent conduct in looking down at his cell phone or some other object
for several seconds while riding behind Ms. Yanez on his motorcycle led to him
striking her vehicle and this tragic accident. Further, Plaintiffs failed to provide
evidence that Ms. Yanez violated the particular traffic code sections asserted in
9
their negligence per se allegation due to (1) the fact that Ms. Yanez’s conduct did
not actually violate the statutes and (2) that any incidental violation of those
statutes were excused as a matter of law due to the emergency nature of the
situation. The evidence demonstrates, therefore, that Ms. Yanez did not breach a
duty of care, that she was not the proximate cause of the accident and Mr.
Carrera’s injuries, and that she was not negligent per se. Thus, the trial court’s
summary judgment should be affirmed.
10
ARGUMENT & AUTHORITIES
Issue No. 1: The Plaintiffs failed to offer more than a scintilla of evidence to
support their negligence and negligence per se claims where Plaintiffs
offered no legally probative evidence to establish that Ms. Yanez’s
operation of her vehicle breached a duty of care to Decedent, that this
alleged breach was the proximate cause of Decedent’s injuries, and
that Ms. Yanez violated Texas Transportation Code Sections
545.302(a)(7), 545.051(b), 548.604(a)(2), and 545.401(a).
A. Standard of Review
A “no evidence” summary judgment is proper when “there is no evidence of
one or more essential elements of a claim or defense on which an adverse party
would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i). A plaintiff
opposing a “no evidence” motion must identify more than a scintilla of evidence to
support each of the challenged elements of its claims. The evidence will not rise to
the level of a scintilla if either (a) it “is so weak as to do no more than create a
mere surmise or suspicion of fact,” Sonnenberg v. Mike Smith Auto Plaza, 8
S.W.3d 850, 852 (Tex. App.—Beaumont 2000, no pet.), or (b) the trial court “is
barred by rules of law or of evidence” from giving any weight to it. Merrell Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
B. Appellants failed to offer more than a scintilla of evidence to
support their negligence claim where they offered no legally
probative evidence establishing that Ms. Yanez’s operation of her
vehicle breached a duty of care to Decedent.
Plaintiffs assert that the trial court erred in granting Ms. Yanez’s no evidence
motion for summary judgment because there were genuine issues of material fact
11
precluding judgment as a matter of law regarding Plaintiffs’ negligence and
negligence per se claims. (Appellants’ Brief, p. 14 – 17.)
Ms. Yanez filed her no evidence motion for summary judgment alleging,
among other things, that after adequate time for discovery, Plaintiffs had no legally
probative evidence that Ms. Yanez breached a duty of care owed to Mr. Carrera in
the operation of her vehicle at the time of the accident. (CR 56-76).
In order to defeat Ms. Yanez’s no evidence motion, Plaintiffs were required
to counter by producing more than a scintilla of probative evidence to raise a
genuine issue of material fact on their negligence claims against Ms. Yanez. See
Tex. R. Civ. P. 166(a)(i). Plaintiffs, however, failed to produce any probative
evidence showing that Ms. Yanez was negligent in the operation or maintenance of
her vehicle. (CR 351-364). That is because Ms. Yanez acted as a reasonable,
prudent driver would by cautiously trying to exit the highway after her vehicle
began overheating. The official investigation report and the testimony of a neutral
non-party Michele Power both demonstrate that the only driver to act negligently
in this accident was the decedent, Adolfo Carrera.
In Plaintiffs’ response to Ms. Yanez’s no evidence motion and Appellants’
Brief (“Response”), Plaintiffs asserted two contradictory allegations of negligence
and provided no legally probative evidence in support of either. (CR 351-363).
First, Plaintiffs appeared to suggest that Ms. Yanez’s vehicle did not over-heat,
12
slow, or stall due to mechanical difficulties as she testified. (Id. at 357-359).
Rather, Plaintiffs alleged instead that Ms. Yanez deliberately and suddenly slowed
her vehicle in the middle of the highway for some unclear reason causing Mr.
Carrera to run into her vehicle. (Id.) In contradiction of this first allegation that Ms.
Yanez’s vehicle did not have mechanical difficulties, Plaintiffs next asserted in the
Response that Ms. Yanez was negligent for driving an old and ill-maintained car
that broke down on the highway causing Mr. Carrera to collide with Ms. Yanez’s
vehicle. (Id.)
Plaintiffs referred to portions of Ms. Yanez’s deposition testimony to
support their allegation that Ms. Yanez drove unsafely and that her vehicle was
poorly maintained. (Id.) Although Plaintiffs provided these portions of her
deposition testimony to support their causes of action against Ms. Yanez, Plaintiffs
failed to show how her testimony constituted any evidence at all that Ms. Yanez
drove negligently or that her vehicle was poorly maintained causing it to break
down on the highway. (Id.) Instead of providing probative evidence supporting
their allegations, Plaintiffs repeatedly asserted that Ms. Yanez had not proven that
her vehicle did not overheat, had not proven that steam was coming from her
vehicle, and had not proven that her vehicle lost power and began to stall or slow.
(Id.)
13
To be clear, these conclusory assertions constitute the entirety of Plaintiffs’
“evidence” that Ms. Yanez drove negligently. Plaintiffs offered no eyewitness
testimony, no expert mechanical evaluation of her vehicle, no expert accident
reconstruction of the accident, and no other type of evidence establishing that Ms.
Yanez drove unsafely. Rather, Plaintiffs have impermissibly attempted to shift the
burden of proof to Ms. Yanez to prove that she drove safely and prove that her
vehicle actually had mechanical difficulties. Plaintiffs repeatedly asserted that Ms.
Yanez could not prove that her vehicle malfunctioned causing her to slow and to
attempt to exit the highway. (Id.) However, the burden was on the Plaintiffs to
provide evidence that Ms. Yanez’s driving breached a standard of care. Instead,
Plaintiffs provided only supposition, surmise, and suspicion of fact, which fell well
short of the level of a scintilla of evidence.
Plaintiffs next pointed to testimony in which Ms. Yanez testified that she did
not look at her gauges while her vehicle was steaming and she was attempting to
exit the highway. The implication, one surmises, is that the conduct of focusing on
attempting to get off the highway while a vehicle is overheating, instead of looking
at gauges, was unreasonable conduct under those circumstances. (Id.) Plaintiffs
failed to provide evidence explaining or demonstrating why her specific conduct of
not looking down at gauges while she was attempting to exit the highway violated
a reasonable driver standard of care.
14
Plaintiffs’ next assert that Ms. Yanez removing her foot from the accelerator,
rather than vehicle malfunction, is what caused her vehicle to slow. (Id.) Plaintiffs
failed to provide any evidence to support their conclusory allegation that Ms.
Yanez’s vehicle was not having mechanical difficulties and that she decided to
stop on the highway for no apparent reason. Ms. Yanez repeatedly and consistently
testified that her vehicle began overheating, slowed, and so she tried to exit the
highway. (CR 381-384). In Plaintiffs’ view, Ms. Yanez’s testimony evidently
constitutes “facts” in support of their conclusory allegations when it is clear that
her testimony (and the accident report and neutral witness Michelle Power’s
testimony) is in direct contravention of their allegations.
Plaintiffs next asserted that Ms. Yanez was not driving a reasonable speed
and that her testimony was inconsistent about the amount of the traffic at the time
of the accident and that this inconsistency creates a fact question about negligence.
(CR 358-359). Plaintiffs have again made a conclusory assertion and provided no
evidence in support of it. As previously noted, Ms. Yanez testified that she
immediately began attempting to move over and exit the highway when her vehicle
began steaming, as any reasonable driver would. (CR 381-384). Plaintiffs have
provided no evidence that this specific conduct breached a reasonable driver
standard. They have presented no witnesses, no accident reconstruction or
15
engineering experts, and no other credible evidence to dispute or challenge the
reasonableness of Ms. Yanez’s driving at the time of the accident.
Further, there is no inconsistency in Ms. Yanez’s response about the traffic
conditions at the time of the accident. As is clear from her deposition testimony,
Ms. Yanez was first describing traffic conditions at the time she left the house that
day and then later as she got onto the highway. (CR 380-381, 406-407). Plaintiffs’
attempt to mischaracterize Ms. Yanez’s testimony as an inconsistency creating a
fact issue reflects the general absence of evidence in support of their allegations.
Plaintiffs made a similar global assertion that Ms. Yanez’s testimony was
contradictory and not clear and therefore should not have been considered as
summary judgment evidence. (Appellants’ Brief, p. 11-12). Plaintiffs appear to
have conflated inconsistent testimony with testimony that is unfavorable to their
allegations. In any instance, this assertion was made without reference to particular
testimony, so it must be discounted.
Plaintiffs next asserted that “the facts further support” that Ms. Yanez should
have attempted to move over to the left shoulder rather than exiting the highway to
the right because the left shoulder was closer. (CR 358-359). This conclusory
assertion begs the questions of (1) which facts support their assertion and (2) how
Ms. Yanez’s split second decision on which direction to move when her vehicle
began malfunctioning constituted a breach of a reasonable driver standard.
16
Plaintiffs failed to address either of these issues in their summary judgment
response. Plaintiffs have provided no testimony or any other evidence that Ms.
Yanez’s conduct was inconsistent with how a reasonable driver would react in the
same emergency situation. Further, Ms. Yanez was in the second lane from the
right when the collision occurred, so Plaintiffs’ assertion that moving to the left
shoulder would have been safer than exiting to the right was unfounded because
she was in fact closer to the right exit lane than to the left shoulder. (CR 452).
Plaintiffs next asserted that Ms. Yanez was negligent in failing to warn
others of her vehicle problems and that she could not prove that she turned on her
hazard lights. (CR 359). First, Plaintiffs provided no evidence as to what the
standard of care to warn others is for a vehicle that is malfunctioning on the
highway and struggling to move over and exit. (Id.) Plaintiffs’ Response did not
dispute that Ms. Yanez put on her right blinker as she attempted to exit the
highway, which is an undisputedly prudent action. (Id.) Their only dispute appears
to be whether she turned on her hazard lights in those split seconds after her
vehicle began malfunctioning. (Id.) Ms. Yanez testified she did engage her
emergency flashing flights and neutral witness Ms. Power thought she did as well.
(CR 383, lines 1-2; CR 479, lines 8-9). Plaintiffs provided no witness testimony to
dispute either Ms. Yanez or Ms. Power. (CR 359). Even assuming that Plaintiffs
were right that Ms. Yanez did not immediately engage her hazard lights, Plaintiffs
17
failed to demonstrate that this conduct, or the absence thereof, was inconsistent
with how a reasonable driver would behave in the same emergency circumstances
where decisions have to be made in split seconds.
Plaintiffs’ next substantive argument was that the investigating officer
determined that “Defendant Yanez contributed to the cause of the accident” and
that his attribution of fault to her created a fact question. (CR 359). This is patently
false. As noted in Ms. Yanez’s motion, the investigating officer marked two
“Contributing Factors” sections on the accident report. (CR 451-454). In the first
section related to Ms. Yanez, the officer listed factor “98” as a contributing factor.
(Id.) The “Factors and Conditions” code sheet on this standard Texas Peace
Officer’s Crash Report (Form CR-3) defines factor 98 as “Other (Explain in
Narrative)”. (CR 453). This factor, by its own description, merely refers the reader
to the narrative section of the accident report. The factor does not, as Plaintiffs
indicated, attribute fault to a driver. The narrative section in the accident report that
this code refers to does not state, as Plaintiffs suggest, that “Defendant Yanez
contributed to cause the accident.” Rather, it states that Ms. Yanez’s vehicle
malfunctioned causing it to lose speed. (Id.) The only attribution of fault by the
investigating officer in the accident report was to the decedent, Mr. Carrera, whom
the investigating officer determined, by citing factor numbers 20 and 72, to be at
fault for “Driver Inattention” and “Cell/Mobile Phone Use”. (CR 454). The officer
18
also attributed fault to Mr. Carrera in the narrative section of the accident report
stating that Mr. Carrera “was not paying attention and struck the rear of Unit 1
[Ms. Yanez]”. (Id.)
It should also be noted that Plaintiffs’ use of the investigating officer’s
narrative as evidence in support of their summary judgment Response was in direct
conflict with their earlier assertions that Ms. Yanez’s vehicle did not malfunction
and that Ms. Yanez deliberately slowed her vehicle. Far from providing support for
Plaintiffs’ assertions, the accident report is in fact wholly consistent with the
accounts of Ms. Yanez and neutral witness Ms. Power of how the accident
occurred and certainly does not reflect any failure on Ms. Yanez’s part to act as a
reasonable driver under the circumstances.
The Plaintiffs next conclusively asserted that Ms. Yanez was negligent in
driving “an old and ill-maintained car”. (CR 359-360). Plaintiffs provided no
evidence whatsoever that Ms. Yanez’s vehicle was in fact poorly maintained or in
non-drivable condition. Of course, the age or mileage of a vehicle does not
constitute evidence of the drivability or safety of a particular vehicle.
Likewise, Plaintiffs provided no expert, or any other, evidence that Ms.
Yanez’s vehicle was in fact poorly maintained. (Id.) Rather, Plaintiffs used as
evidence the fact that Ms. Yanez could not remember the exact location or date she
had the vehicle serviced or that she did not keep receipts of her recent oil changes
19
as evidence that her vehicle was ill-maintained. (Id.) Ms. Yanez testified that she
regularly serviced her vehicle every 3,000 miles and that she would service her
vehicle wherever there was a good deal for the particular service needed. (CR 401,
lines 3-6). Because the service deals varied from shop to shop, she did not always
take her vehicle to one particular shop. (CR 403, lines 9-12). She further testified
that she took good care of the vehicle and that she had never seen steam coming
out of it before. (CR 401, lines 10-21). Plaintiffs’ supposition and conjecture that
her vehicle was not in a condition “safe for driving on the road” has absolutely no
evidentiary support beyond supposition and surmise. Plaintiffs have once again
attempted to shift the burden onto Ms. Yanez to disprove their allegations in the
absence of Plaintiffs producing any evidence to dispute her testimony that the
vehicle was in good driving condition as far as she was aware prior to the accident.
Next, Plaintiffs attempted to discredit the sole eyewitness to the accident,
Michelle Power, who was driving in the lane immediately adjacent to Ms. Yanez
and Mr. Carrera. (CR 360-362). Plaintiffs asserted that Ms. Power’s testimony
about “her observations of Mr. Carrera’s actions in the seconds before the accident
is based on pure assumption and speculation” and her testimony that Mr. Carrera
was at fault for that accident, therefore, should be wholly discounted. (Id.) Ms.
Power’s observations were based, by definition, on what she observed. She did not
need to assume or speculate about what she observed first hand. It appears
20
Plaintiffs mean to say that Mr. Power’s conclusion that Mr. Carrera was not paying
attention prior to colliding with Ms. Yanez’s vehicle was based on assumption and
speculation rather than observation. Ms. Power never claimed in her deposition to
know what was going on in Mr. Carrera’s mind in the seconds prior to him driving
into the rear of Ms. Yanez’s vehicle. However, based on her observation that he
was looking down at some device or object for several seconds prior to the impact,
and the fact that he drove into the rear of a vehicle that Ms. Power had observed
slow down several seconds before, she naturally reached the conclusion that he
was not paying attention. This is the same conclusion the investigating officer
naturally reached as well. It is unclear what other conclusion a reasonable person
could reach. Commonsense dictates that a driver who drives into the rear of
another vehicle, particularly after a neutral witness observed them looking down
for several seconds, was not paying attention.
Plaintiffs repeatedly mischaracterized Ms. Power’s testimony in their
Response but failed to quote the testimony they believed supported their assertions.
Contrary to Plaintiffs’ dismissive assertions about the clarity and reliability of Ms.
Power’s testimony, her testimony was in fact clear and reliable:
A. Okay, I was traveling on IH-10 going westbound, and I heard a
motorcycle, and so I looked in my rearview mirror, and I noticed a
motorcyclist coming behind me.
Q. I'm going to interrupt. Was he in your lane behind you?
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A. He was in my lane.
Q. Okay, go ahead.
A. A few moments later, I noticed him -- he moved into the lane beside
me.
Q. And when you say beside you, to the right of you or to the
A. To the
Q. left?
A. right, to the right. And I have witnessed another motorcycle accident,
so I am sensitive to motorcycles. I proceeded on and he came parallel
to me, and I noticed him looking down. Then almost within a few
seconds of that, I saw what looked to be a stalled vehicle ahead of
him, and within seconds, he impacted that vehicle.
(CR 475, lines 9-25; CR 476, lines 1-3).
A. I'd say within two seconds of him being about parallel with me, he
went a little bit ahead, and he started looking down.
Q. And how long would you estimate he was looking down for?
A. Several seconds.
Q. Okay. Were you able to tell what exactly he was looking down at?
A. Not exactly. It appeared to be some sort of dark device.
Q. So it could have been a cell phone or a music player or something?
A. It could have been anything, yes.
(CR 477, lines 7-19).
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A. In my vehicle, I became very worried, because he was spending a
significant amount of time, in my estimation, looking down, and then
within literally a couple of seconds that disabled vehicle appeared,
and I knew he was going to hit her because he was looking down.
Q. And so, you began to yell at him just inside your car?
A. Yes, yeah, I tried, you know.
Q. You understood it was futile?
A. It was futile but
Q. Instinctive?
A. Instinctive, yeah, it definitely was instinctive for me.
(CR 478, lines 7-10.)
Q. I'm going to back up a little. In the brief moment that you saw Mrs.
Yanez, did you notice anything erratic about her driving?
A. No.
(CR 484, lines 17-20).
Q. That's fine. Ms. Power, do you have any reason to disagree with the
investigating officer's account of how the accident occurred?
MR. STORM: Objection, form.
A. No.
Q. (BY MR. WITTIG) Does that reflect your recollection of how the
accident occurred?
A. Yes, except for the fact that I didn't see who ran over the motorcyclist.
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Q. On the fourth page of the accident report, the investigating officer lists
contributing factors to the accident, and he lists -- he gives specific
numbers that represent a code word. I'll represent to you that he listed
contributing factors to the accident as driver inattention and possible
mobile phone use that he attributes to Mr. Carrera. Do you have any
reason to disagree with the investigating officer's opinion as to the
contributing factors to this accident?
MR. STORM: Objection; leading.
A. I do not.
(CR 486, lines 5-24).
Ms. Power’s testimony was clear and precise and demonstrates both that Ms.
Yanez was not negligent in her driving and that Mr. Carrera’s tragic decision to
look down at his cell phone or something else for several seconds while operating
a motorcycle on a highway was the proximate cause of this accident and his death.
The record is clear that Plaintiffs have failed to produce any legally
probative evidence that Ms. Yanez acted negligently in the operation or
maintenance of her vehicle. Rather, Plaintiffs have only provided suspicion and
surmise in order to establish what they view as material questions of fact regarding
their competing theories that Ms. Yanez either drove negligently or negligently
failed to maintain her vehicle. Texas law is clear that this is insufficient to establish
a scintilla of evidence. As a result, the trial court’s order granting Ms. Yanez’s
Motion for Summary Judgment should be affirmed.
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C. Appellants failed to offer more than a scintilla of evidence to
support their negligence claims where they offered no legally
probative evidence establishing that Ms. Yanez’s conduct was
the proximate cause of Decedent’s death.
Likewise, Ms. Power’s eyewitness testimony clearly establishes that Mr.
Carrera’s inattention and tragic decision to look down at his cell phone or some
other device for several seconds while operating a motorcycle on the highway was
the proximate cause of this accident and Mr. Carrera’s injuries and death. Plaintiffs
have provided no legally probative evidence to rebut Mr. Power’s neutral
eyewitness testimony as to the events of that day.
As noted, Plaintiffs have attempted to discredit Ms. Power’s testimony by
highlighting what Plaintiffs characterize as inconsistencies. However, her
testimony was clear as demonstrated above. An inability of a witness to read
another driver’s mind or specify exact measurements of time and distance does not
constitute inconsistency. Even if one found something to quibble about Ms.
Power’s testimony, the underlying issue still stands that Plaintiffs have provided
absolutely no probative evidence that Mr. Carrera’s conduct, rather than Ms.
Yanez’s, was not the proximate cause of this accident, his injuries, and his death.
As a result, the trial court’s order granting Ms. Yanez’s Motion for Summary
Judgment should be affirmed.
D. Appellants failed to offer more than a scintilla of evidence to
support negligence per se claims where they offered no legally
probative evidence establishing that Ms. Yanez operated her
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vehicle in violation of Texas Transportation Code Sections
545.302(a)(7), 545.051(b), 548.604(a)(2), and 545.401(a).
Plaintiffs have provided no probative evidence that Ms. Yanez was negligent
per se by violating Texas Transportation Code Sections 545.302(a)(7), 545.051(b),
548.604(a)(2), and 545.401(a). Under Texas law, there are generally five
categories of situations where a statutory violation is excused:
(a) the violation is reasonable because of the actor's incapacity;
(b) he neither knows nor should know of the occasion for compliance;
(c) he is unable after reasonable diligence or care to comply;
(d) he is confronted by an emergency not due to his own misconduct;
(e) compliance would involve a greater risk of harm to the actor or to others.
Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982).
A violation of §545.302(a)(7) requires a showing that a defendant stopped
their vehicle on an elevated structure or highway. A violation of §545.051(b)
requires a showing that defendant failed to drive in the father right lane when
moving more slowly than the normal speed of other vehicles. A violation of
§548.604(a)(2) requires a showing that a defendant drove a vehicle with a known
defect. A violation of §545.401(a) requires a showing that a defendant operated a
vehicle in willful and wanton disregard for the safety of persons and property,
including the Plaintiffs.
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First and foremost, Plaintiffs provided no evidence in their Response to Ms.
Yanez’s no evidence motion for summary judgment establishing that Ms. Yanez
actually violated each of these statutes. Plaintiffs provided no evidence that Ms.
Yanez stopped her vehicle on the highway. The only evidence that exists is that
mechanical difficulties caused her vehicle to slow or stall. Plaintiffs provided no
evidence that Ms. Yanez failed to drive in the right lane when driving slower than
other vehicles. On the contrary, her testimony plainly states that she was
attempting to move into the right lane because her vehicle was overheating and
slowing. (CR 411-412). Plaintiffs provided no evidence establishing that Ms.
Yanez knew her vehicle had a defect. And Plaintiffs provided no evidence that Ms.
Yanez operated her vehicle with willful and wanton disregard. The only evidence
that exists is that Ms. Yanez carefully tried to exit the highway when her vehicle
began having mechanical difficulties.
Even if brief moments of Ms. Yanez’s driving after her vehicle began
malfunctioning were arguably a technical violation of one more of the statutes, that
conduct clearly fell within the exceptions to those statutes described in Murray v.
O & A Express, Inc. Plaintiffs provided no evidence disputing that Ms. Yanez’s
vehicle began overheating. Plaintiffs provided no evidence that this emergency was
caused by her own conduct. Plaintiffs provided no evidence she knew of any
defects in her vehicle prior to driving it on the highway. Plaintiffs provided no
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evidence that she did not, with reasonable diligence, attempt to move her vehicle
off the highway. On the contrary, the only evidence that exists in this suit
demonstrates Ms. Yanez acted as a reasonable and prudent driver would. Any
failure to comply with these statutes is clearly excused as a matter of law and, as a
result, the trial court’s ruling granting summary judgment should be affirmed.
Issue No. 2: The trial court correctly granted Ms. Yanez’s traditional motion for
summary judgment based on the determination that she did not breach
a duty of care to the decedent.
A. Standard of Review
The standard for reviewing a summary judgment is de novo. See Provident
Life & Accident Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A traditional
summary judgment is proper if the evidence shows that “there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter of
law.” TEX. R. CIV. P. 166a(c). Thus, a trial court may grant summary judgment
against a plaintiff who, as a matter of law, cannot establish one or more of the
elements of its causes of action. (Id.) Likewise, a trial court may grant summary
judgment when a defendant conclusively proves an affirmative defense to the
plaintiff’s claims. See Johnson & Johnson Med. Cen. v. Sanchez, 924 S.W.2d 925,
927 (Tex. 1996); Randall’s Food Mkts. v. Johnson, 891 S.W.3d 640, 644 (Tex.
1995).
B. The summary judgment should be affirmed because the evidence
establishes that Ms. Yanez did not breach a duty of care when she
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attempted to exit the highway after her vehicle began overheating
and stalling.
In Plaintiffs’ next point of error, they asserted that the trial court erred in
granting Ms. Yanez’s traditional motion for summary judgment because there were
genuine issues of material fact precluding judgment as a matter of law regarding
Plaintiffs’ negligence and negligence per se claims.
As established in this Brief, there is no genuine issue of fact that Ms. Yanez
acted as anything other than a reasonable prudent driver after her vehicle began
overheating by putting on her blinker, then her hazard lights, and then attempting
to exit the highway to get out of harms way. Plaintiffs have provided nothing more
than supposition to suggest there is a material issue of fact.
Ms. Yanez, on the other hand, provided her testimony, the testimony of Ms.
Power, and the investigating officer’s accident report to establish that she acted as
a reasonable prudent driver when faced with a harrowing emergency situation of
mechanical difficulties on a busy highway. Ms. Yanez likewise provided her
testimony that she maintained her vehicle and that she was unaware of any defects
with the vehicle prior to this accident. Plaintiffs had ample opportunity to fully
investigate the vehicles involved, find other witnesses, and otherwise develop
evidence that supported their negligence and negligence per se allegations. They
failed to do so and, as a result, the trial court’s ruling granting Ms. Yanez’s
Traditional Motion for Summary judgment should be affirmed.
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C. The summary judgment should be affirmed because the evidence
establishes that Decedent’s negligence in looking down at his
phone or another object for several seconds prior to colliding with
Ms. Yanez’s vehicle was the proximate cause of the accident and
his death.
Again, as discussed in great detail above, the only existing evidence
provided at the summary judgment hearing established that Mr. Carrera, and not
Ms. Yanez, was the proximate cause of this accident due to his tragic decision to
look down at his cellphone or some object for several seconds prior to this
collision. Had he been paying attention, it is highly likely that he would have had
time to slow or change lanes upon seeing that Ms. Yanez’s vehicle in front of him
had stalled or slowed due to mechanical difficulties. His failure to do so, as
established by the testimony of Ms. Power and the investigating officer’s accident
report, caused his collision with Ms. Yanez’s vehicle and his death. As Plaintiffs
have failed to prove that Ms. Yanez, rather than Mr. Carrera, was the proximate
cause of this accident and Mr. Carrera’s death, the trial court’s order granting Ms.
Yanez’s Traditional Motion for Summary Judgment should be affirmed.
Issue No. 3: Appellants’ assertion that Ms. Yanez did not move for summary
judgment on appellants' wrongful death and survival claims is
misplaced and the trial court properly dismissed those claims.
In Plaintiffs’ third point of error, they assert that Ms. Yanez did not
expressly move for dismissal of their wrongful death and survival claims, only
30
their negligence and negligence per se claims, and that dismissal of all claims was
error. (Appellants’ Brief, p. 17-18.)
Plaintiffs are simply incorrect in their assertion that Ms. Yanez’s motion for
summary judgment did not mention Plaintiffs’ wrongful death and survival claims.
The third paragraph of the first page of Ms. Yanez’s motion states, “Carrera’s
parents, Carrera’s parents, ADOLFO J. CARRERA and ESPERANZA GAYTAN
(“Plaintiffs”), brought a wrongful death and survival suit alleging negligence and
negligence per se causes of action against Ms. Yanez.” (emphasis added)(CR 56).
Ms. Yanez’s motion ended with the following conclusion: “Plaintiffs have
provided no evidence to sustain their burden of proof that Defendant was negligent
or negligent per se. Thus, Defendant is entitled to summary judgment as a matter
of law with respect to all of Plaintiffs’ claims.” (emphasis added)(CR 69). The
motion also included the following Prayer: “Defendant prays that after notice and
hearing, the Court grant her First Amended No Evidence and Traditional Motion
for Summary Judgment, enter judgment that Plaintiffs’ claims against her are
dismissed with prejudice.” (emphasis added)(CR 69).
Likewise, the circumstances in this case are distinguishable from those relied
on by Plaintiffs from Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001). In
Jacobs, the defendant only requested summary judgment on one of two causes of
action alleged. (Id.) In this case, as noted above, Ms. Yanez’s motion clearly noted
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that Plaintiffs brought a wrongful death and survival suit on a basis of negligence
and negligence per se causes of action. The central element of both a wrongful
death and survival claim is that the defendant’s wrongful act caused injury to the
decedent. See TEX. CIV. PRAC. & REM. CODE §§§71.001-71.004,71.021;
Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345-46 (Tex. 1992).
Because Plaintiffs could not, as a matter of law, establish the wrongful act(s)
of Ms. Yanez in their negligence and negligence per se causes of action in support
of their wrongful death and survival suit, Ms. Yanez expressly moved that the trial
court grant summary judgment as to “all claims.” As a result, Plaintiffs’ assertion
that their wrongful death and survival claims were not addressed is unfounded and
the trial court’s granting of Ms. Yanez’s no evidence and traditional motion for
summary judgment should be affirmed.
CONCLUSION
In this case, the trial court property granted Ms. Yanez’s No Evidence and
Traditional Motion for Summary Judgment. This Court should therefore affirm the
trial court’s judgment in this case.
PRAYER
WHEREFORE, THE FOREGOING CONSIDERED, Appellee, Alice
Yanez, requests that this Court:
32
(1) AFFIRM the trial court's order granting Alice Yanez's No Evidence
and Traditional Motion for Summary Judgment;
(2) ORDER Appellants, Adolfo J. Carrera and Esperanza Gaytan, and/or
their counsel to pay Alice Yanez' s reasonable costs and attorney's fees associated
with this appeal pursuant to Texas Rules of Appellate Procedure 43.4; and
(3) GRANT Alice Yanez such further and other relief to which she may
be justly entitled.
Respectfully submitted,
ALLAN, NA V A, GLANDER & HOLLAND, PLLC
825 W. Bitters Road, Suite 102
San Antonio, Texas 78216
Telephone: (210) 305-4220
Telecopier: (21 O) 305-4219
By:~!l. ~X
~LIAM N. ALLAN, IV
State Bar No. 24012204
33
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that,
excluding those parts allowed to be excluded, the above and forgoing Ms. Yanez's
Brief contains 7 ,519 words.
~Il.~ ÎLLÎÄM N. ALLAN, IV
CERTIFICATE OF SERVICE
By my signature hereunder, I certify that I electronically filed the foregoing
with the Clerk of Court and true copy of the foregoing document has been
forwarded as follows on the 2nd day of September, 2015:
Electronic Mail
Marc Acuna
MarkA@jeffdavislawfirm.com
DAVIS LAW FIRM
5710 Northwest Expressway
San Antonio, Texas 78201
COUNSEL FOR APPELLANTS
~21.~ ÎLLIAM N. ALLAN, IV
34