Olga Mata Individually as Representative of the Estate of Elpidio Mata and A/N/F of Rocio Mata, Ruby Mata, Rudy Mata and Paloma C. Mata, Minor Children and Raquel Mata Aguilar and Rosemary Mata and Rosy Camp v. Energy Absorption Systems LLC A/K/A Energy Absorption Systems, Inc., Quixote Transportation Safety, Inc., William Brothers Construction Co., Keller Krash Kushions, Inc. D/B/A Contractors Barricade Service, J.I.T. Distributing, Inc., and Gustavo Reyes

• Court: Court of Appeals of Texas
• Decided: March 30, 2011
• Docket: 01-09-01097-CV
• Status: Published

Opinion

Opinion issued March 31, 2011

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-09-01097-CV

OLGA MATA, INDIVIDUALLY AS REPRESENTATIVE OF
THE ESTATE OF ELPIDIO MATA AND A/N/F OF ROCIO MATA,
RUBY MATA, RUDY MATA, AND PALOMA C. MATA,
MINOR CHILDREN, AND RAQUEL MATA AQUILAR,
ROSEMARY MATA, AND ROSSY CAMPA, Appellants

V.

Energy absorption systems, llc A/K/A
ENERGY ABSORPTION systems, inc.,
quixote transportation safety, inc.,
keller krash kushions, inc. d/b/a
contractors barricade service,
williams broTHERS construction co., and
odum services of houston, Appellees

On Appeal from the 412nd District Court

Brazoria County, Texas

Trial Court Cause No. 38047

MEMORANDUM OPINION

          This appeal concerns a highway collision between a tractor-trailer and a crash cushion.  Appellants, Olga Mata, individually as representative of the estate of Elpidio Mata and as next friend of Rocio Mata, Ruby Mata, Rudy Mata, and Paloma C. Mata, minor children, and Raquel Mata Aquilar, Rosemary Mata, and Rossy Campa (collectively, “the Matas”), appeal summary judgments granted in favor of appellees, Energy Absorption Systems, LLC, also known as Energy Absorption Systems, Inc. (“Energy Absorption”), Quixote Transportation Safety, Inc. (“Quixote”), and Keller Krash Kushions, Inc., doing business as Contractors Barricade Service (“Keller Krash”), Williams Brothers Construction Co. (“Williams Brothers”), and Odum Services of Houston (“Odum Services”).  In their first issue, the Matas contend that the trial court erred by granting Energy Absorption, Quixote, and Keller Krash’s motion for no-evidence summary judgment.  In their second issue, the Matas contend that the trial court erred by granting Williams Brothers’ motion for no-evidence summary judgment and by granting Odum Services’ motion for traditional and no-evidence summary judgment.  Concluding that the trial court properly granted the motions for no-evidence summary judgment, we affirm.

Background

          In 2006, the Texas Department of Transportation (“TxDOT”) contracted with Williams Brothers to complete a highway construction project on US-59 in Sugar Land, Texas.  Under the terms of the contract, Williams Brothers agreed to narrow the left lane of the highway.  This was to be accomplished by painting a new centerline[1] to the right of the existing centerline; afterward, the preexisting centerline was to be removed.  Williams Brothers also agreed to install a concrete barrier with a crash cushion in front of it.  The barrier and cushion were to be placed to the left of the new centerline.  The contract terms specified that the crash cushion would be a REACT 350 Narrow crash attenuation system.

          Energy Absorption, which is a subsidiary of Quixote,[2] manufactured the REACT 350 Narrow.  The REACT 350 Narrow consists of a row of high-density plastic barrels sitting in a metal frame, the front of which is bolted to the ground.  Along each side of the barrels run two or four rows of metal cables, which are affixed to bolts on the front of the frame.  The main purpose of the cables is to provide redirective capacity for side impacts.

          Williams Brothers subcontracted with Odum Services to procure and install the crash cushion.  Odum Services purchased the crash cushion from Keller Krash, a distributor.  Odum Services installed it on US-59 in April 2006. 

          About a week later, the decedent, Elpidio Mata, was diving a tractor-trailer through the construction zone in the leftmost traffic lane when his tractor unit drifted left and impacted the crash cushion.  Upon impact, the tractor unit’s left-front wheel and axle, which are necessary for steering, were removed.  The tractor-trailer crossed both lanes of traffic until it stopped on the grass, where it became engulfed in flames.  Mata subsequently died from smoke inhalation and extensive burns suffered during the crash. 

          An eyewitness to the crash was driving a tractor-trailer about eight cars behind Mata, and he described the collision to a police officer responding to the scene.  Officer Gamble conducted an accident reconstruction and prepared an accident report.  Later, the Matas hired an expert, David Bosch, who holds a doctorate degree in material and engineering science.  Bosch found a cable similar to ones used by the crash cushion.  Bosch compared that cable to the striation marks on the left-front axle components from Mata’s tractor unit.  Based on this examination as well as an examination of other parts of the tractor unit, Bosch concluded that during the crash, the cable became entangled with the left-front axle components, causing the wheel to be removed.  Bosch, however, provided neither evidence connecting the wheel removal to the fire nor any other evidence concerning the cause of the fuel-tank rupture or the start of the fire.

          Before the collision, Williams Brothers provided to Odum Services the TxDOT schematics instructing where to install the crash cushion.  The schematics depict a single centerline.  When Odum Services arrived at the installation site, they discovered two centerlines.  TxDOT project manager Joe Mendoza, who was responsible for overseeing the construction project to ensure that it was built according to design, was present when the crash cushion was installed.  Mendoza explained that due to the need to move traffic over first, the crash cushion had to be placed while the preexisting centerline was still there.  Odum Services installed the crash cushion in front of the concrete barrier, to the left of the new centerline, as specified by the TxDOT contract.  Marcus Odum, the foreman who installed the crash cushion, testified that Odum Services installed the crash cushion on top of the outermost centerline and placed a yellow-and-black striped sign, known as a “nosepiece” or “chevron,” on the front barrel.

          After the crash, the yellow-and-black striped sign was missing from the front barrel.  The bolts holding the crash cushion’s frame to the ground had been pulled out, damaging the surrounding asphalt.  Because the bolts could not be properly re-drilled in the same location, TxDOT decided to reposition the crash cushion and the concrete barrier a couple of inches to the left of its initial location, just far enough so that the bolts could be re-drilled. 

          The Matas sued Energy Absorption, Quixote, and Keller Krash on theories of product defect, marketing defect, and negligence.[3]  Energy Absorption, Quixote, and Keller Krash moved for summary judgment on no-evidence grounds, which the trial court granted.  The Matas additionally sued Williams Brothers and Odum Services on theories of negligence and premises liability.[4]  Williams Brothers and Odum Services separately moved for summary judgment on identical traditional and no-evidence grounds.  The trial court then granted Williams Brothers’ summary judgment on its no-evidence grounds.  In contrast, the trial court granted Odum Services’ summary judgment without specifying whether the grant was based on the no-evidence or traditional grounds.  The trial court then granted a motion to sever the claims against the appellees, permitting this appeal.

Standard of Review for No-Evidence Summary Judgment

After an adequate time for discovery, a party may move for no-evidence summary judgment on the ground that no evidence exists of one or more essential elements of a claim or defense on which the adverse party bears the burden of proof at trial.  Tex. R. Civ. P. 166a(i); see Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.).  The trial court must grant the motion unless the nonmovant presents more than a scintilla of evidence raising a genuine issue of material fact on each element specified in the motion.  Tex. R. Civ. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (“More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’”) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)); Flameout Design, 994 S.W.2d at 834.  A motion for summary judgment must stand or fall on the grounds expressly presented in the motion, and a trial court may not grant summary judgment on a ground not presented by the movant in writing.  Crimson Exploration, Inc. v. Intermarket Mgmt., LLC, No. 01-08-00774-CV, 2010 WL 4484020, at *4 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, no. pet. h.) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979)).  To determine if the nonmovant raises a fact issue, a court reviews the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so and disregarding contrary evidence unless reasonable jurors could not.  See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).­ 

An appellate court reviews de novo a trial court’s ruling on a summary-judgment motion.  Id.  If a trial court’s order granting summary judgment does not specify the grounds upon which judgment was rendered, an appellate court must affirm the summary judgment if any of the grounds in the summary judgment motion are meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Crimson Exploration, 2010 WL 4484020, at *4; see Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”). 

Summary Judgment in favor of Manufacturer and Distributor

          In their first issue, the Matas contend that they produced more than a scintilla of evidence on each element of their claims for a product-design defect, product-marketing defect, and negligence asserted against the manufacturer, Energy Absorption and Quixote, and the distributor, Keller Krash.

          A.      Products Liability—Design Defect

          To recover for a products liability claim alleging a design defect, a plaintiff must prove:

(1)   the design defect rendered the product unreasonably dangerous;

(2)   at the time the product left the control of the manufacturer or seller, a safer alternative design existed; and

(3)   the defect was a producing cause of the injury for which the plaintiff seeks recovery.

Tex. Civ. Prac. & Rem. Code Ann. § 82.005(a), (b)(2) (West 2009); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009).

          We conclude that the trial court properly rendered summary judgment because no evidence shows that the REACT 350 Narrow’s exposed cables were the producing cause of Mata’s injuries.  A “producing cause” is “a substantial factor in bringing about an injury, without which the injury would not have occurred.”  Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007).  Generally, competent expert testimony and objective proof that a defect caused the harm is required.  See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004); see also Rangel v. Lapin, 177 S.W.3d 17, 22 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).  “Proof other than expert testimony will constitute some evidence of causation only when a layperson’s general experience and common understanding would enable the layperson to determine from the evidence, with reasonable probability, the causal relationship between the event and the condition.”  Mack Trucks, 206 S.W.3d at 583.

          The Matas suggest that testimony from the eyewitness, their engineering expert, and Officer Gamble provides some evidence of causation.  Their testimony, however, only provides a causal link between the entanglement with the crash cushion’s cable and the removal of the left-front wheel; no evidence shows that the wheel removal was a producing cause of the fuel-tank rupture or the start of the fire that caused Mata’s injuries.

The eyewitness observed Mata’s tractor-trailer impact the crash cushion and the  left-front wheel come in between the barrels and the cable, removing the wheel. Afterwards, he saw Mata’s vehicle catch fire.  Although he describes the sequence of events, the eyewitness provides no testimony that the wheel removal, rather than impact with the crash cushion, was a producing cause of the fuel-tank rupture or the start of the fire that caused Mata’s injuries.  See Mack Trucks, 206 S.W.3d at 583.

Matas’ expert, Bosch, testified that the cable caused the wheel to be removed, but he provided no evidence concerning what caused the fuel tank to rupture or the fire to start.  The trial court disallowed Bosch from testifying as to the cause of the fuel tank rupture and the fire, and on appeal, the Matas do not challenge this ruling.  Bosch did not offer an opinion as to the cause of the fire—his effort ended with an opinion that the cable became entangled with the left front wheel, causing its removal.  Bosch’s testimony, therefore, fails to connect the wheel removal as a producing cause of the fuel-tank rupture or the start of the fire that caused Mata’s injuries.  See id.

The Matas suggest that Office Gamble’s accident reconstruction and police report provide some evidence concerning the cause of the fuel tank-rupture and the start of the fire.  His report states:

Upon impact with the crash attenuator, the left front tire was removed from the vehicle and the diesel fuel tank was ruptured.  [Mata’s tractor-trailer] then travelled across both lanes of the highway and into a grassy median and became engulfed with flames.

          The police report states that the fuel tank ruptured “upon impact” with the crash cushion.  Officer Gamble testified that based on his investigation and reconstruction, he was unable to determine the particular event that caused the fuel tank to rupture.  Gamble’s testimony fails to establish that the wheel removal, rather than the severity of the impact with the crash cushion, caused the fuel tank to rupture or the fire to start.  See Mack Trucks, 206 S.W.3d at 583 (expert testimony on causation is required because “[a] lay juror’s general experience and common knowledge do not extend to whether design defects such as those alleged in this case [defective tractor-trailer fuel system] caused releases of diesel fuel during a rollover accident.”).  Officer Gamble’s testimony fails to exclude other possible sources of puncturing, such as other impacts from the crash itself.  See id. at 583–84 (expert testimony that design defect is producing cause of fire is insufficient to preclude summary judgment where it fails to eliminate other possible sources for fuel or ignition).  Although some evidence shows that the crash cushion’s cable caused the removal of the wheel, no evidence shows that the crash cushion’s cable, by removing the wheel, was a producing cause of the fire that resulted in Mata’s injuries.  See id. at 583.  Accordingly, we hold that the trial court properly granted no-evidence summary judgment on the Matas’ design-defect claim.

                    B.      Products Liability—Marketing Defect

          The Matas contend that the REACT 350 Narrow crash cushion suffered from a marketing defect in that it failed to warn of the risk of wheel entanglement.  A marketing defect is found if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.  Benavides v. Cushman, Inc., 189 S.W.3d 875, 881 (Tex. App.—Houston [1st Dist.] 2006, no pet.).  For a marketing-defect claim, a plaintiff must establish:

(1)       a risk of harm is inherent in the product or may arise from the intended or reasonably anticipated use of the product;

(2)       the product supplier actually knows or reasonably foresees the risk of harm at the time the product is marketed;

(3)       the product possesses a marketing defect;

(4)       the absence of the warning or instructions renders the product unreasonably dangerous to the ultimate user or consumer of the product; and

(5)       the failure to warn causes the product user’s injury.

Olympic Arms, Inc. v. Green, 176 S.W.3d 567, 578 (Tex. App.—Houston [1st Dist.] 2004, no pet.).  Each of these elements was challenged in the motion for no-evidence summary judgment filed by Energy Absorption, Quixote, and Keller Krash.  The Matas’ summary-judgment evidence does not address the fifth element, concerning whether the failure to warn caused Mata’s injuries.  See, e.g., id. at 579 (plaintiff makes showing of more than scintilla of evidence that failure to warn caused injuries if evidence shows intended user would have heeded warning).  Accordingly, we hold the trial court properly granted no-evidence summary judgment on the Matas’ marketing defect claim.  See Tex. R. Civ. P. 166a(i); Mack Trucks, 206 S.W.3d at 582; Havner, 953 S.W.2d at 711.

          C.      Negligence

          The Matas contend that Quixote, Energy Absorption, and Keller Krash are negligent by various acts and omissions relating to the design, testing, and reporting of the REACT 350 Narrow crash cushion.  To prevail on a negligence cause of action, a plaintiff must establish that the defendant owed him a duty, the defendant breached that duty, and the breach proximately caused his damages.  W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).  To establish proximate causation, a plaintiff must prove causation in fact and foreseeability.  Id. at 551.  To establish causation in fact, a plaintiff must prove that the breach was a substantial factor in bringing about his injuries and that without the breach, the harm would not have occurred.  Id.  To establish forseeability, a plaintiff must prove that a person of ordinary intelligence would have anticipated the danger caused by the breach.  Sw. Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002).  “If a defect is not a producing cause of an injury, it cannot constitute, as a matter of law, a proximate cause.”  Ford Motor Co. v. Miles, 141 S.W.3d 309, 318 (Tex. App.—Dallas 2004, pet. denied).

          In their second amended petition, the Matas contend that Quixote, Energy Absorption, and Keller Krash were negligent:

(1)       in designing the REACT 350 Narrow crash cushion in various ways;

(2)       in testing the crash cushion;

(3)       by failing to test the crash cushion with heavy trucks;

(4)       by failing to inform the Matas of the risk of entanglement;

(5)       by failing to disclose the risk of entanglement;

(6)       in marketing the crash cushion;

(7)       by failing to adequately train and assist dealers as to the risk of entanglement;

(8)       by failing to meet or exceed internal corporate guidelines;

(9)       by failing to comply with standards of care applicable to the highway safety industry insofar as providing reasonable protection in an impact with the crash cushion.

          In their motion for no-evidence summary judgment, Energy Absorption, Quixote, and Keller Krash contend there is no evidence of any negligence by them that caused Mata’s injuries.  In their summary judgment response, the Matas do not address the claims enumerated above as (4) through (9).  Because they have provided no evidence of negligence under those theories, the trial court properly rendered summary judgment on those claims.  See Tex. R. Civ. P. 166a(i); Mack Trucks, 206 S.W.3d at 582; Havner, 953 S.W.2d at 711.

          The Matas’ claims based on the three remaining assertions, in numbers (1) through (3), for negligent design, negligent testing, and failing to test are premised upon the existence of a design defect.  These claims fail because there is no evidence that a design defect was a producing cause of Mata’s injuries.  See Miles, 141 S.W.3d at 318 (finding no evidence of proximate cause in negligence claim based upon product defect where there is no evidence that defect was producing cause).  Because the Matas fail to show proximate causation, the trial court properly rendered summary judgment in favor of Quixote, Energy Absorption, and Keller Krash.  See id.

We overrule the Matas’ first issue.

Summary Judgment in favor of Installers

          In their second issue, the Matas contend that Williams Brothers and its subcontractor Odum Services were negligent based on their installation of the crash cushion and the premises condition of the construction site.  Specifically, the Matas contend that the installers failed to remove the preexisting centerline and failed to install a yellow-and-black striped nosepiece warning sign.  Claims for negligent-activity and premises liability are each forms of negligence, but they are independent theories of recovery.  W. Invs., Inc., 162 S.W.3d at 550; Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997); West v. SMG, 318 S.W.3d 430, 438 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

          A.      Negligent Activity

          Recovery on a negligent-activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity.  Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).  Because the activities of which the Matas complain occurred during the installation of the crash cushion, which occurred a week before the accident, the resulting injuries were not a contemporaneous result of the activity.  Rather Mata’s injuries were a result of the conditions created by the activity, namely the placement of the crash cushion on top of the preexisting centerline and the missing warning sign.  Accordingly, the Matas’ claims against the installers can arise only under a premises-liability theory.  See id.

          B.      Premises Liability

          To prevail on a premises liability claim, among other elements, a plaintiff must show the existence of a premises condition posing an unreasonable risk of harm.  LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).  “A condition presenting an unreasonable risk of harm is defined as one in which there is a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.”  Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970).

          Although they produced some evidence that the preexisting centerline could be confusing to a driver, the Matas failed to provide any evidence that the placement of the crash cushion or the presence of the two centerlines presented an unreasonable risk of harm.  See Lofton v. Marmaxx Operating Corp., No. 01-06-01109-CV, 2008 WL 525678, at *3 (Tex. App.—Houston [1st Dist.] Feb. 28, 2008, no pet.) (mem. op.).  They provided no evidence that any other vehicles had collided with similarly placed crash cushions, that placement of a crash cushion on top of a preexisting centerline is unusual, or that the possibility of confusion presented an a prohibitive degree of danger.  See id.  The Matas’ expert, Bosch, testified that the later placement of the crash cushion farther from the road rendered a collision “much less likely,” but he provided no basis for this testimony.  Bosch never visited the accident site, performed an accident reconstruction, or calculated Mata’s speed or direction.  See LMB, 201 S.W.3d at 688–89.  His testimony is incompetent summary judgment evidence because he failed to address the underlying facts on which his conclusion was based.  See id.

          The Matas also contend that the missing black-and-yellow striped warning sign on the front of the crash cushion was a premises condition posing an unreasonable risk of harm.  In support of their allegation that the sign was missing before the accident, the Matas observe that the sign is missing in a police photo taken afterwards.  Given the tremendous force involved in the intervening crash, however, this photo is no evidence concerning whether the sign was missing before the collision.  See Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 531, 143 S.W.2d 763, 769 (1940) (photos taken after accident used to prove conditions at time of accident must be supported by testimony that photos fairly and accurately represent condition at time of accident).  The only evidence regarding the sign prior to the accident is from Marcus Odum, who testified that Odum Services installed the sign at the same time it installed the crash cushion.  The Matas have failed to show that this alleged premises condition—the missing sign—existed at the time of the accident.

          We conclude that the trial court properly granted Williams Brothers’ and Odum Services’ motions for no-evidence summary judgment because the Matas produced no evidence of a premises condition posing an unreasonable risk of harm.  See LMB, 201 S.W.3d at 688. 

          C.      Matters Not Reached

          Having affirmed the trial court’s grant of no-evidence summary judgment on the Matas’ claims for relief, we do not reach the question of the applicability of the affirmative defense to those claims asserted in Odum Services’ and Williams Borthers’ motions for traditional summary judgment.  See Tex. Civ. Prac & Rem. Code Ann. § 97.002 (contractors are not liable if construction is in compliance with TxDOT contract); Grynberg v. Grey Wolf Drilling Co., L.P., 296 S.W.3d 132, 136 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

          We overrule the Matas’ second issue.

Conclusion

We affirm the no-evidence summary judgments rendered by the trial court.

                                                                   Elsa Alcala

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

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[1]           A centerline is a solid-yellow road surface marking that runs along the leftmost lane of traffic, indicating that traffic on the other side moves in the opposite direction.  See Griffin v. State, 54 S.W.3d 820, 823 (Tex. App.—Texarkana 2001, pet. ref’d) (citing Tex. Transp. Code Ann. § 545.051 (West 1999) (entitled “Driving on Right Side of Roadway”)).

[2]           Energy Absorption was the original company, and the name “Quixote” was used as a public name in the stock exchange.

[3]           The Matas also sued Absorption, Quixote, and Keller Krash for gross negligence, misrepresentation, and breach of implied warranties, on which the trial court granted summary judgment.  On appeal, the Matas do not challenge the trial court’s grant of summary judgment on these theories.

[4]           The Matas also sued Williams Brothers and Odum Services for product defect, marketing defect, gross negligence, misrepresentation, and breach of implied warranties.  On appeal, the Matas do not challenge the trial court’s grant of summary judgment on these theories.