concurring and dissenting.
I agree that appellants’ points of error two through five should be overruled and that the take-nothing judgment in favor of Sylvester Medina and Steere Tank Lines, Inc. should be affirmed. However, I disagree that appellants’ first point of error should be sustained and that appellants’ cause of action against Diamond Shamrock Refining and Marketing Company should be reversed and remanded for a new trial.
In their first point of error, appellants claim the trial court erred by granting Diamond Shamrock’s motion for summary judgment on the ground that Diamond Shamrock had no legal duty to Jimmy Dean Carter. I would overrule this point of error.
In Texas, reasonable foreseeability is an essentia] element of actionable negligence (i.e., negligent duty). Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560, 564 n. 2 (1961); Houston Lighting and Power Co. v. Brooks, 161 Tex. 32, 336 S.W.2d 603, 606 (1960); City of Dallas v. Maxwell, 248 S.W. 667, 670 (Tex.Comm’n App.1923, holding approved). In City of Dallas, the court pointed out that there is neither a legal nor a moral obligation to guard against that which cannot be foreseen, and under such circumstances the duty of foresight should not be arbitrarily imputed to a person’s action or inaction. City of Dallas, 248 S.W. at 670.
The phrase “cannot be foreseen” is used in a qualified, and not in an absolute, sense, as denoting “cannot be foreseen” in light of common ordinary experience. Id. In that regard, the court stated:
Manifestly the test of common experience would exclude that degree of prescience which would require resort to mere speculation in possibly conceivable results, as well as to ‘prophetic ken.’ ... The rule of anticipation or foreseeableness is therefore one of practical application, and not of philosophical or metaphysical speculation in causation.
Id. (emphasis added). In essence, a person is legally required to foresee only probable or likely consequences, rather than possible consequences.
In this instance, the summary judgment evidence shows that the occurrence in question resulted from a successive chain of negligent actions on the part of one or both of the drivers involved. I am not persuaded that Diamond Shamrock owed Carter a legal duty to anticipate or foresee his or the third party’s negligent acts. Neither were under Diamond Shamrock’s control.
I would overrule appellants’ first point of error and affirm the trial court’s take-nothing judgment in favor of Diamond Shamrock.