Opinion issued August 20, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00913-CV
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REFUGIO SANCHEZ, Appellant
V.
PRECISION DRILLING COMPANY, LP, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2015-77477
MEMORANDUM OPINION
Refugio Sanchez was injured on a jobsite while working for independent
contractor Precision Drilling Holdings Company (Holdings). He sued Precision
Drilling Company, LP (Precision), another independent contractor working at the
jobsite, for negligence in failing to ensure a safe work environment. In one issue,
Sanchez challenges the trial court’s rendition of summary judgment in favor of
Precision on both matter-of-law and no-evidence grounds.
We affirm.
Background
COG Operating LLC, an exploration and production company, contracted
with Precision to drill several oil and gas wells. As part of the contract, COG
agreed to pay Precision for “mobilization,” which included “move in, rig up, [and]
rig down.”
COG contracted separately with Holdings to transport oil and gas rigs at its
well sites. Sanchez worked as a “swamper” for Holdings, mainly assisting
Holdings’ truck drivers in moving the rigs.
On April 30, 2013, Sanchez and fellow Holdings employees Ivan Torres and
Austin Matejowsky were working to transport Precision’s Rig 105 to a COG well
site. As part of this project, the three men were tasked with loading a portable
generator onto a pole truck and moving it to another position at the site.
Pursuant to Torres’s instructions, Sanchez used chains and rope to secure the
generator to the truck. Once the generator was loaded, Torres got behind the wheel
of the pole truck. Sanchez and Matejowsky remained outside of the truck, and
Matejowsky began flagging Torres to back it up. While he was directing Torres,
Matejowsky radioed Precision’s rig manager, Ricky Menard—the only Precision
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employee involved in the accident—to ask him where they should place the
generator. At that moment, the generator began to swing to the drivers’ side,
causing Torres to lose control of it. In an effort to gain control of the generator,
Sanchez held onto the tag line with two hands and followed it to the rear of the
truck. Matejowsky saw neither the load begin to swing nor Sanchez’s position
behind the truck, and continued flagging Torres to back up. As Sanchez stepped
between the generator and the pole truck, the pole truck ran over his right foot and
leg. Sanchez suffered severe injuries, and as a result, had to have his leg
amputated.
Sanchez sued Precision for negligence, alleging that it breached its duty to
maintain a safe work environment for the mobilization work he was performing
when he was injured.
Precision moved for both traditional and no-evidence summary judgment.
The trial court granted Precision’s motion and dismissed Sanchez’s suit.
Summary Judgment
A. Standard of Review
We review a trial court’s summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take
as true all evidence favorable to the nonmovant, and we indulge every reasonable
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inference and resolve any doubts in the nonmovant’s favor. Valence Operating,
164 S.W.3d at 661; Provident Life, 128 S.W.3d at 215.
Following an adequate time for discovery, a party may move for summary
judgment on the basis that there is no evidence of one or more essential elements
of a claim on which the adverse party would have the burden of proof at trial. TEX.
R. CIV. P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (per
curiam). To defeat a no-evidence motion, the nonmovant must produce at least a
scintilla of evidence raising a genuine issue of material fact as to the challenged
elements. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45
(Tex. 2017). “More than a scintilla of evidence exists if the evidence ‘rises to a
level that would enable reasonable and fair-minded people to differ in their
conclusions.’” Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 376 (Tex.
App.—Houston [1st Dist.] 2012, pet denied) (quoting Merrell Dow Pharms., Inc.
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). We consider the evidence in the
light most favorable to the nonmovant and indulge every reasonable inference from
the evidence in the nonmovant’s favor. Lightning Oil, 520 S.W.3d at 45.
A party moving for traditional summary judgment bears the burden of
proving that no genuine issues of material fact exist on at least one essential
element of the cause of action asserted and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Lightning Oil, 520 S.W.3d at 45. A matter
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is conclusively established if reasonable people could not differ as to the
conclusions to be drawn from the evidence. See City of Keller v. Wilson, 168
S.W.3d 802, 816 (Tex. 2005). If the movant meets its burden, the burden then
shifts to the non-movant to raise a fact issue precluding summary judgment. See
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
When, as here, the summary judgment order does not specify the grounds on
which it was granted, the appealing party must demonstrate that none of the
proposed grounds are sufficient to support the judgment. West v. SMG, 318 S.W.3d
430, 437 (Tex. App.—Houston [1st Dist.] 2010, no pet.). We will affirm a
summary judgment ruling if any of the grounds asserted in the motion are
meritorious. Lightning Oil, 520 S.W.3d at 45; Beverick v. Koch Power, Inc., 186
S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
B. Analysis
In his sole issue on appeal, Sanchez argues that the trial court erred by
granting Precision’s summary-judgment motion on both traditional and no-
evidence grounds. We begin with the no-evidence motion. See Lightning Oil, 520
S.W.3d at 45 (“If a party moves for summary judgment on both traditional and no-
evidence grounds, as the parties did here, we first consider the no-evidence
motion.”).
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In its no-evidence motion, Precision challenged each of the elements of
Sanchez’s negligence claim, including duty, breach of that duty, and damages
proximately caused by the breach. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794
(Tex. 2006) (per curiam). If the trial court could have properly granted summary
judgment based on a lack of evidence of proximate cause, we must affirm. See Doe
v. Messina, 349 S.W.3d 797, 804 & n.6 (Tex. App.—Houston [14th Dist.] 2011,
pet. denied) (upholding summary judgment based on proximate cause without
reaching question of duty). Accordingly, we consider whether Sanchez produced at
least a scintilla of evidence raising a genuine issue of material fact as to whether
Precision proximately caused his injuries. See Lightning Oil, 520 S.W.3d at 45
(“When a trial court does not specify the grounds it relied upon in making its
determination, reviewing courts must affirm summary judgment if any of the
grounds asserted are meritorious.”).
The components of proximate cause are cause in fact and foreseeability.
Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, No. 17-0730, — S.W.3d —
2019 WL 2710037, at *8 (Tex. June 28, 2019); Rampersad v. CenterPoint Energy
Houston Elec., LLC, 554 S.W.3d 29, 33 (Tex. App.—Houston [1st Dist.] 2017, no
pet.). “The cause-in-fact element is satisfied by proof that (1) the act was a
substantial factor in bringing about the harm at issue, and (2) absent the act . . . the
harm would not have occurred.” HMC Hotel Props. II Ltd. P’ship v. Keystone-Tex.
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Prop. Holding Corp., 439 S.W.3d 910, 913 (Tex. 2014). Even if a plaintiff’s
injuries would not have occurred in its absence, a defendant’s conduct may be too
attenuated from the resulting injuries to be a substantial factor in bringing about the
harm. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794,
799 (Tex. 2004). For example, merely furnishing a condition which makes the
injuries possible, see id., or placing a person in a particular place at a particular
time, do not, without more, amount to cause in fact. See Lear Siegler, Inc. v. Perez,
819 S.W.2d 470, 472 (Tex. 1991). Foreseeability means that the actor, as a person
of ordinary intelligence, should have anticipated the dangers that his negligent act
created for others. McKenzie, 2019 WL 2710037, at *9; Travis v. City of Mesquite,
830 S.W.2d 94, 98 (Tex. 1992). “These elements cannot be established by mere
conjecture, guess, or speculation.” HMC Hotel Props., 439 S.W.3d at 913.
On this record, we begin and end with cause in fact, which asks whether
Precision’s (allegedly) negligent act or omission was “a substantial factor in
bringing about” the injury, without which the harm would not have occurred. See
IHS Cedars Treatment Ctr., 143 S.W.3d at 799. “A substantial factor is one that
reasonable people would regard as a cause in the popular sense of the word, in
which there lurks the idea of responsibility.” Critical Path Res., Inc. v. Cuevas, 561
S.W.3d 523, 545–46 (Tex. App.—Houston [14th Dist.] 2018, pet. filed) (citing
Lear Siegler, 819 S.W.2d at 472)).
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Relying on the report of his expert, Douglas W. Smith, and Holdings’
Serious Incident Investigation Report, which Smith reviewed in forming his
opinions, Sanchez argues that Menard, Precision’s rig manager, caused his injuries
by distracting Matejowski and thus preventing him from seeing that Sanchez was
behind the pole truck as he continued to direct Torres to back it up.
Smith’s report identifies nine factors—taken almost verbatim from
Holdings’ Incident Report—that he opines contributed to causing Sanchez’s
injuries.1 One of these factors implicated Precision’s involvement in the generator
move:
[Matejowsky] was distracted by communicating with [Menard,
Precision’s rig manager], on where to place the load while flagging
the pole truck operator.
Smith’s opinion merely lists all nine factors under the heading “Contributing
Factors.” It does not conclude that Matejowsky’s involvement was a substantial
factor in bringing about Sanchez’s injuries. See IHS Cedars Treatment Ctr., 143
S.W.3d at 799 (test for cause in fact is whether negligent “act or omission was a
substantial factor in bringing about the injuries” and without which harm would
1
The remaining eight factors include (1) the height of the pole truck compared to
Sanchez’s height; (2) Sanchez’s failure to attend a pre-job safety meeting; (3) the
manner in which Sanchez installed the tag line; (4) lack of means for Sanchez to
contact Torres when the load began to shift; (5) Matejowsky’s failure to observe
both the load rotate and Sanchez’s position behind the pole truck; (6) Sanchez’s
placement behind and proximity to the pole truck; (7) Sanchez’s attempt to control
the load when the pole truck was moving; and (8) Torres’s failure to see that
Sanchez had moved behind the pole truck.
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not have occurred). Thus, Smith’s opinion falls short of what is required to
demonstrate cause in fact. See Christus St. Mary Hosp. v. O’Banion, 227 S.W.3d
868, 875 (Tex. App.—Beaumont 2007, pet. denied) (holding that testimony that
event “contributed to” patient’s death and decreased patient’s “likelihood of
surviving” was no evidence of proximate cause); Sisters of St. Joseph of Tex., Inc.
v. Cheek, 61 S.W.3d 32, 36–37 (Tex. App.—Amarillo 2001, pet. denied) (holding
that testimony that negligence “caused or contributed to” patient’s death was no
evidence of proximate cause).
Likewise, Holdings’ Incident Report provides no evidence that Menard’s
involvement was a substantial factor in causing Sanchez’s injuries. The Report
states that Matejowsky “was distracted by communicating with [Precision’s] rig
manager . . . and did not observe when the load began to swing or when [Sanchez]
got positioned behind the truck.” Nothing in the report indicates that Menard was
the cause of Majowsky’s distraction, and Sanchez has not provided any additional
evidence to that effect. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l
Dev. & Research Corp., 299 S.W.3d 106, 122 (Tex. 2009) (“Causation must be
proved, and conjecture, guess, or speculation will not suffice as that proof.”).
Indeed, the Report indicates that Matejowsky—not Menard—initiated the contact
that Sanchez claims caused Matejowsky to be distracted: “[Matejowsky] asked
[Menard] where to put the generator and at the same time . . . [Matejowsky] was
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flagging [Torres].” Even assuming Menard caused Matejowsky to be distracted,
Sanchez has provided no evidence, given the eight other factors listed in the
Incident Report, that Matejowsky’s distraction was a substantial factor in bringing
about his injuries. We therefore hold that, without more, taking Matejowsky’s call
is no evidence of an act or omission by Menard that was a substantial factor in
bringing about Sanchez’s injury. See IHS Cedars Treatment Ctr., 143 S.W.3d at
798–99.
We conclude that because Sanchez has provided no evidence that Precision
caused Sanchez’s injuries, the trial court properly granted Precision’s no-evidence
motion for summary judgment. Our conclusion makes it unnecessary to address
whether Sanchez presented evidence of duty or breach.2
We overrule Sanchez’s sole issue.
2
Because we hold that Precision is entitled to summary judgment on its no-
evidence motion, we do not address its traditional motion. See Beverick v. Koch
Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied) (“When a trial court does not state the basis for its decision in its summary
judgment order, as in this case, we must uphold the order if any of the theories
advanced in the motion is meritorious.”).
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Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
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