Opinion filed March 11, 2010




                                             In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-08-00108-CV
                                         __________

                          MICHAEL W. WATERS, Appellant
                                       V.
                           RONALD D. DICKENS, Appellee


                           On Appeal from the 266th District Court
                                    Erath County, Texas
                              Trial Court Cause No. CV28289


                         MEMORANDUM OPINION ON
                          MOTION FOR REHEARING

       Ronald D. Dickens’s motion for rehearing is granted. This court’s original opinion and
judgment dated December 3, 2009, are withdrawn, and the following is substituted therefor.
       Michael W. Waters sued Ronald D. Dickens and alleged that Dickens negligently injured
him. The injuries occurred when a bungee cord or strap struck Waters in the eye. Dickens filed a
no-evidence motion for summary judgment, and the trial court granted it. Waters appeals from the
take-nothing summary judgment that the trial court entered against him. We affirm.
       In his sole issue, Waters argues that he produced more than a scintilla of evidence in response
to the no-evidence motion for summary judgment and that the trial court erred when it granted it.
       We review a no-evidence summary judgment under the same standard as a directed verdict.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). We examine the record in the
light most favorable to the nonmovant. We credit evidence favorable to the nonmovant if reasonable
jurors could, and we disregard all contrary evidence and inferences unless reasonable jurors could
not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). A trial court must grant a proper
no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of
probative evidence to raise a genuine issue of material fact. TEX. R. CIV. P. 166a(i); Wal-Mart
Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). If the evidence is such that it would
enable reasonable and fair-minded people to differ in their conclusions, then it is more than a
scintilla. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
       When Waters responded to the no-evidence motion for summary judgment, he attached
excerpts from his deposition. In that testimony, Waters said that his wife sold a refrigerator to
Dickens. Waters put the refrigerator on a piano dolly so that it would be easier to move. He also put
two of his bungee cord straps around the refrigerator so that the doors would not open when they
moved it. Waters put the bungee straps on the refrigerator. He testified that the straps were very
tightly stretched and that “[t]hey were pretty much at their limit.”
       After Waters and Dickens rolled the refrigerator down the driveway to Dickens’s vehicle,
Waters began to remove one of the bungee cords. In his affidavit, Waters stated that, when he was in
the process of removing the cord or strap, “[Dickens] came from behind me, and he just took the
other one loose and let it go.” He also said, “Now, I don’t know whether he accidentally released it
or if he just didn’t . . . think about what was going to happen when he turned loose of it, or if he
thought, well, I’m going to pop him on the shoulder or the arm. You know, he’s sometimes a cutup,
so I don’t know.” In his testimony, Waters also commented, “[Dickens] was very, you know, sorry,
just very remorseful that this had happened, and he was, you know, just -- just beside himself with
concern.” “[H]e just said, I didn’t know that would happen, I’ve not had any experience with these,
I’ve never used those before, I’m sorry, I just -- You know, he was obviously distressed.” Waters
stated further, “He came from my left up from behind me there and -- and see, I didn’t ever -- I didn’t
see him release the other one, so I don’t really know exactly how he approached. I didn’t know he


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was releasing it until it -- until I was hit.” According to his summary judgment proof, when asked
whether he had seen Dickens unbuckling the strap, Waters answered, “No, I didn’t see him do it.”
       To sustain a cause of action for negligence, it is necessary to produce evidence of a duty, a
breach of that duty, proximate cause, and damage. Colvin v. Red Steel Co., 682 S.W.2d 243, 245
(Tex. 1984). The duty Dickens owed Waters was to act as a reasonable prudent person would act
under the same or similar circumstances regarding any reasonably foreseeable risk. Id. The
difficulty for Waters in this case is that the summary judgment evidence does not show whether
Dickens acted as a reasonable prudent person or not; the summary judgment evidence does not show
what, if anything, he did or how he did it. Waters testified that he did not see Dickens undo the
strap. Inasmuch as Waters did not see Dickens undo the strap, then Waters could not and did not
testify that Dickens did so negligently.
       A party may establish any material fact by direct evidence or by circumstantial evidence.
But, if the evidence does no more than create a suspicion or is no more than a surmise, then the
evidence does not amount to more than a scintilla. Ridgway, 135 S.W.3d at 601. An inference that
is not more than a guess is in effect no evidence. Id. Although Dickens expressed the facts that he
was sorry, that he was concerned, and that he was not familiar with the type bungee cord straps that
Waters used, those statements do not supply the missing evidence. Further, under the pleadings and
summary judgment evidence in this case, the mere fact that Waters was injured by the bungee strap
does not supply the missing evidence that Dickens acted in a negligent manner. Waters was
obligated to produce more than a scintilla of probative evidence that Dickens acted in a negligent
manner. Because Waters did not produce more than a scintilla of probative summary judgment
evidence to show that Dickens acted in a negligent manner and because that is an element of his
case, we overrule Waters’s sole issue on appeal.
       We affirm the judgment of the trial court.


                                                       JIM R. WRIGHT
March 11, 2010                                         CHIEF JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.

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