ACCEPTED
13-15-00329-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
11/25/2015 1:47:08 PM
Dorian E. Ramirez
CLERK
13-15-00329-CV
FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH DISTRICT OF TEXAS
11/25/2015 1:47:08 PM
DORIAN E. RAMIREZ
Clerk
STEVEN WALTERS
V.
ALLWAYS AUTO GROUP, LTD.
D/B/A ATASCOSA CHRYSLER DODGE JEEP RAM
REPLY BRIEF OF APPELLANT STEVEN WALTERS
November 25, 2015
THE LAW OFFICES OF THOMAS J. HENRY
521 Starr St.
Corpus Christi, Texas 78401
Telephone: (361) 985-0600
Facsimile: (361) 985-0601
Thomas J. Henry
State Bar No. 09484210
Russell W. Endsley
State Bar No. 24026825
Matthew S. Hull
State Bar No. 24055702
Service Email: rendsley-svc@thomasjhenrylaw.com
IDENTITY OF PARTIES AND COUNSEL
Appellant: Counsel for Appellant:
Steven Walters THE LAW OFFICES OF
THOMAS J. HENRY
Thomas J. Henry
State Bar No. 09484210
Russell W. Endsley
State Bar No. 24026825
521 Starr St.
Corpus Christi, Texas 78401
Telephone: (361) 985-0600
Facsimile: (361) 985-0601
Appellee: Counsel for Appellee:
Allways Auto Group, Ltd. DAVIS, CEDILLO, &
d/b/a Atascosa Chrysler MENDOZA, INC.
Dodge Jeep Ram Ronald E. Mendoza
State Bar No.: 13937700
755 E. Mulberry Ave., Suite 500
San Antonio, Texas 78212
Telephone: (210) 822-6666
Telecopier: (210) 822-1151
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ......................................................... ii
INDEX OF AUTHORITIES .................................................................................. iv
INTRODUCTION.................................................................................................... 1
ARGUMENT ............................................................................................................ 3
I. APPELLEE’S ARGUMENT REGARDING SUPERSEDING CAUSE IGNORES THE
EVIDENCE. ....................................................................................................... 3
A. Heyden confirms there was no intentional act ....................................... 3
B. Appellee’s conclusion that Heyden intentionally veered into oncoming
traffic is unsupported .............................................................................. 4
II. HEYDEN’S RECOLLECTION REGARDING SUICIDE RAISES A FACT ISSUE
AND CANNOT SUPPORT SUMMARY JUDGMENT. ........................................... 5
A. Heyden made no mention of suicide to the investigating officer at the
time of the collision ................................................................................. 5
B. Heyden never withdrew his statement to the investigating officer ....... 5
III. APPELLEE’S ATTENUATION ARGUMENT FAILS UNDER TEXAS LAW AND
FAILS IN LIGHT OF THE EVIDENCE. ............................................................. 6
A. The time at which the collision occurred is immaterial ........................ 6
B. Appellant has established the causal connection between
Appellee’s entrustment and Appellant’s damages ................................. 7
CONCLUSION AND PRAYER ............................................................................. 9
CERTIFICATE OF COMPLIANCE WITH WORD LIMITS ........................ 10
CERTIFICATE OF SERVICE ............................................................................ 11
iii
INDEX OF AUTHORITIES
Cases
Ambrosio v. Carter’s Shooting Ctr, Inc.
20 S.W.3d 262 (Tex.App.—Houston [14th Dist.] 2000, pet. denied) .............. 7, 8
Arias v. Aguilar
515 S.W.2d 313 (Tex.App.—Corpus Christi 1974, no writ)................................ 7
Bethke v. Munoz
2012 WL 6618160 (Tex.App.—San Antonio 2012, pet. denied)......................... 8
IHC Cedars Treatment Centers of DeSoto, Texas, Inc. v. Mason
143 S.W.2d 794 (Tex. 2004) ................................................................................. 8
Mundy v. Pirie-Slaughter Motor Co.
206 S.W.2d 587 (Tex. 1947)................................................................................. 7
TXI Transportation Co. v. Hughes
306 S.W.3d 230 (Tex. 2010) ............................................................................. 2, 7
Union Pump Co. v. Allbritton
898 S.W.2d 773 (Tex. 1995) ................................................................................. 8
Other
Texas Pattern Jury Charges, PJC 10.12 ..................................................................... 7
iv
INTRODUCTION
Appellant Steven Walters respectfully files his Reply Brief in support of his
request that this Court reverse the trial court’s granting of Appellee’s traditional
motion for summary judgment and remand for new trial. Appellant would show
that he has brought forth ample evidence to support all elements of all his claims
arising out of a collision caused by the negligent operation of a motor vehicle
entrusted by Appellee to William John Heyden (“Heyden”).
The facts and evidence show that Appellee entrusted its vehicle to Heyden,
who was intoxicated, unlicensed, and reckless at the time of entrustment; Heyden
admits his operation of the vehicle while intoxicated, unlicensed, and reckless
proximately caused the motor vehicle collision in question. (CR 144, 145, 150,
153, 154, 156, 158).
In response to Appellant’s Brief, Appellee takes the position that there is a
intervening or superseding cause of the collision, relying upon a statement given
by Heyden at his deposition that he intended to commit suicide on the day in
question. Appellee further relies on Appellee’s unsupported conclusion that
Heyden intended to place his vehicle into the oncoming lane of traffic. However,
Appellee ignores Heyden’s testimony which confirms he neither committed an
intentional act nor set out to commit suicide. (CR 144, 145, 155).
1
The basic, undisputable causation evidence is before the Court – the Texas
Peace Officer’s Crash Report which confirms the collision was a result of
Heyden’s drinking and driving. (CR 162). Heyden stated he believed his blood
alcohol level at the time of the collision was, “like maybe two point something.”
(CR 145).
Appellee further argues in its brief that the collision occurred at a point too
attenuated from the time of entrustment, wholly failing to address Appellant’s
citation to the Texas Pattern Jury Charge regarding negligent entrustment as well
as case law which disposes of Appellee’s attenuation argument. Negligent
entrustment is considered a proximate cause of the collision, if the risk that made
the entrustment negligent caused the collision. See TXI Transportation Co. v.
Hughes, 306 S.W.3d 230, 240-41 (Tex. 2010).
2
ARGUMENT
Appellant has brought forth ample evidence in support of his causes of
action against Appellee. Appellee has failed to carry its burden to submit
sufficient evidence that establishes there is no genuine issue as to any material fact
and that it is entitled to summary judgment as a matter of law.
I. APPELLEE’S ARGUMENT REGARDING SUPERSEDING CAUSE IGNORES THE
EVIDENCE.
Appellee’s argument regarding superseding cause ignores the evidence
which establishes the proximate cause of the collision was Appellee’s negligent
entrustment of its vehicle to Heyden. Appellee argues that Heyden committed an
intentional act, for the purpose of committing suicide, which superseded
Appellee’s negligence; however, Appellee ignores testimony and evidence to the
contrary found within the Court Record and Appellant’s Brief.
A. Heyden confirms there was no intentional act.
Contrary to Appellee’s position, Heyden unequivocally testified that he did
not intend to cause the collision in question:
Q: You did not intend to hit my client’s vehicle, correct?
A: Absolutely not.
Q: You did not intend to harm my client, correct?
A: Correct.
Q: This accident was not intentional, correct?
3
A: No. It was not intentional.
(CR 155). Accordingly, Appellee’s repeated statements regarding intentional
action on Heyden’s part are unsupportable. Heyden’s testimony creates a genuine
issue of material fact.
B. Appellee’s conclusion that Heyden intentionally veered into
oncoming traffic is unsupported.
Furthermore, Appellee’s conclusion that Heyden intentionally veered into
oncoming traffic is unsupported by the evidence and testimony. As a matter of
clarification, Appellant would respectfully state that Appellee failed to provide the
entirety of Heyden’s response when quoting Heyden as stating, “I think, basically,
[I] said F it, and I was going to jerk the wheel and go off the bridge; Heyden’s
complete response was as follows, with emphasis added :
A: When I noticed that I was driving on that bridge on Highway
72, I think , basically, [I] said F it, and I was going to jerk the
wheel and go off the bridge. I didn’t mean to hurt anybody
else.
(CR 145).
Heyden never testified to making a conscious decision to veer into
oncoming lanes. In fact, the investigator’s narrative found in the Texas Peace
Officer’s Crash Report indicates Heyden stated that he inadvertently entered the
oncoming lane and made an attempt to readjust his motion of travel. (CR 162).
4
Both Heyden’s testimony and the evidence before the Court create genuine issues
of material fact which preclude summary judgment.
II. HEYDEN’S RECOLLECTION REGARDING SUICIDE RAISES A FACT ISSUE
AND CANNOT SUPPORT SUMMARY JUDGMENT.
Heyden’s recollection regarding suicide is suspect considering the evidence,
raises a fact issue, and cannot support summary judgment.
A. Heyden made no mention of suicide to the investigating officer at
the time of the collision.
Heyden made no mention of suicide to the investigating officer at the time
of the collision or at any other time before his deposition, and any recollection of
events over two years after the collision is suspect.1 Appellant does not concede
the accuracy of Heyden’s statement regarding suicide, considering the amount of
time that passed, Heyden’s serious injuries from the collision, and his loss of
consciousness. Heyden testified that he woke up dazed in the hospital. (CR 145).
B. Heyden never withdrew his statement to the investigating officer at
the time of the collision.
In addition, Appellant respectfully would emphasize that Heyden never
withdrew his statement to the investigating officer regarding his inadvertently
entering the oncoming lane of traffic and attempt to avoid the collision. The
investigating officer’s narrative reads as follows:
1
Heyden was deposed on October 9, 2014 regarding the collision of September 10, 2012.
5
Unit 2 driver [Heyden] stated that he was reaching for his cell phone
that had fallen on the floor and when he reached for it he noticed that
the steering wheel was shaking and when he looked up he noticed he
was driving on the West bound land traveling East bound. At that
time Unit 2 driver tried to readjust his motion of travel and was
unsuccessful in doing so. With that said, he collided with an on
coming [sic] vehicle on the West bound land, driver to driver side
collision. Multiple injuries from both drivers.
(CR 162). Additionally, Heyden stated that he could not recall all facts
surrounding the collision, including his statement to the investigating officer,
because he woke up dazed in the hospital. (CR 145).
Whether Heyden’s account of events at the time of the collision or his
recollection over two years after the collision is more accurate is a fact issue. The
evidence along with Heyden’s testimony create a genuine issue of material fact and
cannot support summary judgment.
III. APPELLEE’S ATTENUATION ARGUMENT FAILS UNDER TEXAS LAW AND
FAILS IN LIGHT OF THE EVIDENCE.
Appellee’s attenuation argument with regard to negligent entrustment fails
under Texas law and fails in light of the evidence.
A. The time at which the collision occurred is immaterial.
Appellee’s attenuation argument, that the collision occurred 18 days after the
negligent entrustment, fails, because the time at which the collision occurred is
immaterial.
6
Negligent entrustment is considered a proximate cause of the collision, if the
risk that made the entrustment negligent caused the collision. See TXI
Transportation Co. v. Hughes, 306 S.W.3d 230, 240-41 (Tex. 2010). In this case,
the risk that made Appellee’s entrustment negligent was Heyden’s intoxication,
and the cause of the collision in question was caused by Heyden’s intoxication.
Also, Appellee’s attenuation argument fails in light of the evidence.
Heyden’s testimony confirms that his intoxication was continuous. Heyden
confirmed he operated the vehicle while intoxicated from the time of entrustment
up until the time of the collision. (CR 154).
B. Appellant has established the causal connection between Appellee’s
entrustment and Appellant’s damages.
The causal connection is shown between the negligence of the owner in
entrusting the vehicle and the damage to the third person, once the third person has
brought forth facts and evidence to establish that the owner entrusted its vehicle to
an unlicensed, reckless, and incompetent driver, which the owner knew or should
have known to be unlicensed, reckless, or incompetent, and that the negligence of
the driver proximately caused the collision. See Arias v. Aguilar, 515 S.W.2d 313,
316 (Tex.App.—Corpus Christi 1974, no writ); see also Mundy v. Pirie-Slaughter
Motor Co., 206 S.W.2d 587, 590 (Tex. 1947); see also STATE BAR OF TEX., TEXAS
PATTERN JURY CHARGES, PJC 10.12.
7
Although Appellant has already differentiated cases cited by Appellee,
Appellant would briefly address both Ambrosio v. Carter’s Shooting Ctr., Inc. and
Bethke v. Munoz.2 As with the other cases cited by Appellee, neither Ambrosio nor
Bethke are factually similar or instructive in this case. Ambrosio does not involve
negligent entrustment of a motor vehicle; the facts involve a stolen firearm which
was later used in a carjacking/murder. See Ambrosio v. Carter’s Shooting Ctr.,
Inc., 20 S.W.3d 262, 263 (Tex.App.—Houston [14th Dist.] 2000, pet. denied).
Ambrosio involves theft, not entrustment, and it involves an intentional criminal
act which the present case does not. Id.
Bethke is also not a negligent entrustment case like the present case; Bethke
involves independent motor vehicle accidents -- an 18-wheeler rollover which
caused a freeway traffic backup, and a collision which occurred four hours after
the rollover. See Bethke v. Munoz, No. 04-12-00047-CV, 2012 WL 6618160
(Tex.App.—San Antonio Dec. 19, 2012, pet. denied). The claimants in Bethke
sought recovery from the 18-wheeler driver and owner for causing the traffic
backup which furnished the condition for the decedent driver to collide with the
rear of a vehicle caught in the traffic backup. Id. The causation facts in Bethke are
2
Appellant has addressed in his brief Union Pump Co. v. Allbritton, 898 S.W.2d 773 (Tex.
1995)(employee slipped on fire retardant foam two hours after foam was used to extinguish a
fire) as well as IHC Cedars Treatment Centers of DeSoto, Texas, Inc. v. Mason, 143 S.W.2d 794,
799 (Tex. 2004) (discharged mental facility patient caused a motor vehicle collision the
following day). Neither case involves negligent entrustment of a motor vehicle, and are factually
dissimilar to the present case with regard to foreseeability.
8
dramatically dissimilar to the present case and thus cannot support Appellee’s
position.
Appellant has carried his burden in accordance with the standard set forth in
the Texas Pattern Jury Charge 10.12 and the negligent entrustment cases which
applied the standard. Appellant has brought forth facts and evidence to establish
that Appellee entrusted its vehicle to an unlicensed, reckless, and incompetent
driver, which Appellee knew or should have known to be unlicensed, reckless, and
incompetent, and has brought forth facts and evidence establishing Heyden’s
negligence caused the collision and Appellant’s damages. Appellant has
established the causal connection to Appellee’s negligence.
As further evidence, Appellant offers Heyden’s agreement that Appellee’s
negligence was the proximate cause of Appellant’s injuries:
Q: Do you agree that if you had not been provided a loaner
vehicle by Atascosa Dodge, that this wreck never would
have happened?
A: I totally agree.
(CR 145).
CONCLUSION AND PRAYER
Appellant has brought forth evidence to support all elements of his causes of
action against Appellee, including negligence, negligent entrustment, and gross
negligence. With all facts and inferences taken as true, in favor of Appellant,
9
summary judgment should not have been granted. Appellee has failed to carry its
burden to submit sufficient evidence that establishes there is no genuine issue as to
any material fact or that it is entitled to summary judgment as a matter of law.
Accordingly, Appellant prays that the judgment of the trial court be reversed and
that this Court remand this case for a new trial on all Appellant’s causes of action.
Respectfully Submitted,
THE LAW OFFICES OF THOMAS J. HENRY
521 STARR STREET
CORPUS CHRISTI, TEXAS 78401
361/ 985-0600 – PHONE
361/ 985-0601 – FACSIMILE
BY: /s/Russell W. Endsley
THOMAS J. HENRY
STATE BAR NO. 09484210
RUSSELL W. ENDSLEY
STATE BAR NO. 24026824
MATTHEW S. HULL
STATE BAR NO. 24055702
CERTIFICATE OF COMPLIANCE WITH WORD LIMITS
I certify that the foregoing Reply Brief of Appellant Steven Walters was
prepared with Microsoft Word, and that, according to that program’s word-count
function, the sections to which the word limits apply, as set forth in Texas Rule of
Appellate Procedure 9.4(i), contain 2,538 words.
/s/Russell W. Endsley
Russell W. Endsley
10
CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the foregoing was duly
served in accordance with the Texas Rules of Civil Procedure on this the 25th day
of November, 2015.
VIA E-SERVICE and/or FACSIMILE
Ronald E. Mendoza
DAVIS, CEDILLO, & MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Ave.
San Antonio, Texas 78212
(210) 822-6666
(210) 822-1151 (Fax)
/s/Russell W. Endsley
Russell W. Endsley
11