                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-12-00164-CV


                MARY GUERRA AND TONY GUERRA, APPELLANTS

                                           V.

                    UNITED SUPERMARKETS, L.L.C., APPELLEE

                         On Appeal from the 286th District Court
                                  Hockley County, Texas
               Trial Court No. 10-12-22388, Honorable Pat Phelan, Presiding

                                   August 23, 2013

                           MEMORANDUM OPINION
                  Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      In this case, Mary Guerra and her husband Tony Guerra allege on December 5,

2008, while shopping at a supermarket owned by appellee United Supermarkets, L.L.C.,

Mary was injured in an altercation between United employees and a fleeing shoplifting

suspect. Tony Guerra alleges a claim for loss of spousal consortium. United filed

traditional and no-evidence motions for summary judgment and the trial court rendered

a summary judgment decreeing the Guerras take nothing from United. The judgment
does not specify the ground on which the court relied. We will reverse and remand the

summary judgment as to Mary Guerra and otherwise affirm the trial court‟s judgment.


                                       Background


      As this is the review of a summary judgment, we will recite the facts presented by

the summary judgment evidence in the light most favorable to the Guerras, indulging

every reasonable inference in their favor.1


      In a report of the occurrence, a United manager recounted:


      Around 3:00 the deli called me over and told me that the gentleman at the
      counter had been coming in·and·ordering·large quantities of various
      items. The day before he was in around noon, they were 99% sure he did
      not pay for anything. I then started watching the guy but he was watching
      me more than I was watching him. I then told Jesse Lopez to watch him.
      He was roaming around the first three aisles waiting to get a clear run at
      the door. I then went and stood at the east doors. A few minutes later he
      turned the corner with the food in hand. I grabbed him and he was
      resisting. Jesse than (sic) help (sic) me try to secure him. He appeared to
      give up. As we lead him to the office he started running to the west doors.
      As he approached the doors he pushed his way through an elderly couple.
      The doors would not open because the doors were off, they were being
      cleaned. I then grabbed him into a bear hug and he (sic) was still unable
      to control him. Jesse was there in a matter of seconds and we both were
      unable to control him because he was still fighting back. A couple of
      guests were starting to help, then he gave up. The elderly woman was
      hurt during the scuffle.
      Four video recordings from store security cameras are generally consistent with

the facts recounted by the manager in his statement. The initial video depicts the

shoplifting suspect approaching an exit where a United employee waits. The employee

and the suspect briefly engage in a physical altercation before the suspect relents and

the two walk off-camera with the employee‟s hands on the suspect. A second and third

      1
        Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per
curiam) (stating rule).

                                              2
video depict figures running through the store. The end of the third video shows the

suspect in store custody. The fourth video covers the suspect‟s attempt to leave the

store after escaping the custody of store personnel.           Mrs. Guerra can be seen

approaching the exit behind the suspect. At the door, a store employee dives for the

feet of the suspect, as if to tackle him, and arises as a melee breaks out among the

suspect and two United employees. Mrs. Guerra moves to the right behind a display

but the altercation moves there as well. She emerges from behind the display and

moves to the right of the camera. Meanwhile the United employees continue scuffling

with the suspect at the display until, after a third United employee appears, the subdued

suspect is led off-camera. At that time Mrs. Guerra appears on camera again. She

rests one hand on a wall until she reaches Mr. Guerra who places his arm around her

shoulder.


       Describing the incident in his deposition, Mr. Guerra recalled, “Well, I heard this

stampede and I turned around, and here are three guys coming. In the middle the—

there was one guy hanging on each side of guy (sic) that was following, and when we—

when he got to us, he swerved, and he fell right in front, all three of them.”


       A police report states that according to the United store manager an elderly

woman was injured while the store detained a suspected shoplifter. The woman was

identified as Mary Guerra.       According to the report she was transported to the

emergency room by ambulance “to treat injuries she received during the incident.”

Another police record states that the shoplifting suspect was arrested on charges of

injury to an elderly person, assault, and theft under $50.



                                              3
      Medical records from 2009 include a patient history of Mary Guerra. It describes

a 1987 L5-S1 fusion which improved her then-existing back pain symptoms “and she

had no pain until 2 months ago.” According to the narrative, Mrs. Guerra was at a

supermarket and was “incidentally pushed” while a shoplifter was pursued. “After the

incident she was unable to walk and she had to be carried to a chair. She was taken by

an ambulance to the ER and Xrays (sic) were taken. Her pain continued and she used

some „pain pills‟ which improved her pain some and eventually she underwent an MRI.

The MRI showed a spondylolisthesis and neurosurgical consultation was requested.” A

document entitled “Questions Under Oath for Medical Provider” bears the signature of a

physician and is dated May 18, 2009. The physician was asked, “Was the incident of

December 5, 2008 the cause of Ms. Mary Guerra‟s back injuries for which you treated

and are presently treating the patient?” The physician responded, “No.         It caused

symptoms from a pre-existing condition.” The physician was also asked, “With respect

to your care for this patient, is Ms. Mary Guerra considered a surgical candidate for the

back injuries sustained in the incident of December 5, 2008?” He responded, “Currently

assessing that issue. Her spinal condition should be treated surgically but her other

health issues are severe.”


      Applicable Law


      An appellate court reviews 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). Summary judgment is proper if the

record presents no disputed issues of material fact and the movant is entitled to

judgment as a matter of law. Tex. R. Civ. P. 166a(c); Knott, 128 S.W.3d at 215-16.

                                            4
When reviewing a summary judgment, a court takes as true all evidence favorable to

the nonmovant, and indulges every reasonable inference and resolves any doubt in

favor of the nonmovant. Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d

at 215. If the trial court did not specify a basis for granting summary judgment, the

judgment will be affirmed if any ground asserted in the motion has merit.           Star-

Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).


      On a traditional motion for summary judgment, the movant bears the initial

burden of conclusively negating at least one essential element of a claim or defense on

which the non-movant has the burden of proof.        Tex. R. Civ. P. 166a(c); Science

Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Only if the movant

satisfies this burden does the burden shift to the nonmovant to produce evidence

demonstrating a genuine issue of material fact as to the challenged element or

elements in order to defeat the summary judgment. See Walker v. Harris, 924 S.W.2d

375, 377 (Tex. 1996).


      A party moving for summary judgment on an affirmative defense bears the

burden of conclusively proving all elements of the defense. Integrated of Amarillo, Inc.

v. Pinkston-Hollar Constr. Servs., No. 07-11-0422-CV, 2013 Tex. App. Lexis 4216, at *5

(Tex.App.--Amarillo Apr. 2, 2013, pet. filed) (mem. op.) (citing Rhone-Poulenc, Inc. v.

Steel, 997 S.W.2d 217, 223 (Tex. 1999)).


      Through a no-evidence motion for summary judgment, a movant may challenge

the existence of legally sufficient evidence of one or more essential elements of a claim

or defense on which the nonmovant bears the burden of proof at trial. Tex. R. Civ. P.



                                            5
166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).

The nonmovant in response must present summary judgment evidence demonstrating a

genuine issue of material fact concerning the element or elements challenged. Tex. R.

Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).


        Issues


        United‟s summary judgment motion was a hybrid motion, containing paragraphs

presenting both traditional and no-evidence grounds. Appended to the motion were five

exhibits, consisting of copies of the Guerras‟ original petition, Mary Guerra‟s deposition,

the video from United‟s store surveillance cameras, an affidavit of a United employee

and Tony Guerra‟s deposition. In the motion, United discussed its summary judgment

evidence, in connection both with its no-evidence grounds and its traditional grounds.

Attached to the Guerras‟ response were a report by a United employee of the

December 5 incident, police records pertaining to the incident, and medical records and

data.


        Although not presented as a Malooly point,2 we understand the Guerras‟

appellate issues one through three as challenging the summary judgment grounds

United urged in the trial court.      See Tex. R. App. P. 38.9 (addressing substantial

compliance with appellate rule 38).




        2
         See Malooly Bros, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (point of
error on appeal stating simply that trial court erred by granting summary judgment
“allows argument as to all the possible grounds upon which summary judgment should
have been denied”).

                                             6
       For its no-evidence ground, United asserted the Guerras could produce “no

evidence that [United] caused either of the Plaintiffs any injury.”


       As a threshold matter, the parties disagree over the standard by which the case

is governed. United asserts the case arises under the law of premises liability. CMH

Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (citing Corbin v. Safeway Stores,

Inc., 648 S.W.2d 292, 296 (Tex. 1983) (listing essential elements of a premises liability

claim when, for example, the plaintiff is an invitee)). The Guerras maintain it sounds in

ordinary negligence. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002)

(listing elements). We need not address their disagreement because recovery under

either standard requires a plaintiff to prove the defendant‟s breach of duty proximately

caused the plaintiff‟s injury. See Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550-552

(Tex. 2005) (jointly analyzing causation element of premises liability and negligence

claims and finding no evidence that alleged breach of duty was a substantial factor in

causing injury).


       Determination of causation ordinarily is for the trier of fact. El Chico Corp. v.

Poole, 732 S.W.2d 306, 314 (Tex. 1987) (determination of proximate cause and

intervening cause rests with the jury); Tex. Dep’t of Transp. v. Pate, 170 S.W.3d 840,

848 (Tex.App.--Texarkana 2005, pet. denied) (“Whether a particular act of negligence is

a cause-in-fact of an injury is a particularly apt question for jury determination”). And

the plaintiff must establish through sufficient proof the relationship between the event

sued upon and the injuries complained of. Guevara v. Ferrer, 247 S.W.3d 662, 666

(Tex. 2007).



                                              7
       Elaborating on its no-evidence ground, and referring to the video evidence

appended to its motion, United‟s motion asserted that the “video clearly shows that Ms.

Guerra was not struck by either a shoplifter or any United employee,” and asserted it

“also shows that Ms. Guerra was not knocked into the wall.” The motion concluded,

“Ms. Guerra is unable to prove that she sustained any injury because of the incident at

United. The video surveillance shows that she was not struck by the shoplifter or the

United employee. Ms. Guerra has failed to demonstrate that United in any way caused

her injury.”


       Viewing the summary judgment record in the light most favorable to the Guerras,

and taking as true evidence in their favor, Goodyear Tire & Rubber Co., 236 S.W.3d at

756, we cannot agree the summary judgment record contains no evidence that “United

in any way caused [Mrs. Guerra‟s] injury.” In her deposition, Mrs. Guerra testified:


       Q: Okay. Did you fall down?
       A: I don't think so. Like I said, I just hit against the wall, kind of where I
       was thrown against the wall.
       Q: You didn't fall?
       A: No, no.

       ***
       Q: Okay. And tell me what's happening next.
       A: Well, we were walking out.
       Q: Who--
       A: We were walking out.
       Q: --is “we”?
       A: Me and my husband.
       Q: That's Tony?

                                             8
A: Yes, ma‟am.
Q: Okay.
A: And we were just walking out, and all of a sudden, I just--I just felt this
big--I mean, it just--my back, I mean, it just--something--like something
had just--like a truck hit me. I mean, it just really hurt me bad, and it kind
of knocked me off balance, and it kind of threw me against the wall. I
didn't see anybody. I didn't see nothing. I just felt it, and it kind of--kind of
made me dizzy. Kind of made me--didn‟t even know what to do, what to
think. I didn‟t think--I didn't even think for a minute, for a while there.
Q: Okay. Tell me on that day: Had you had any hydrocodone?
A: I might have had that morning. Like I say, that's what I do first thing in
the morning.
Q: Okay. This incident occurred at 3:15 p.m. How many hydrocodone do
you think you would have had by 3:15 p.m.?
A: Well, maybe a couple, maybe.
Q: Okay. I want to--I‟m--I want to get your description of what happened.
You‟re walking out of the store. Where were you exactly?
A: Well, right there at the entry of the--the store right there in the door, just
a little ways before.
Q: Does that store have automatic doors?
A: Yes, ma'am.
Q: Okay. Were you by those automatic doors?
A: No. We still lack a bit, like, from here to the--to that window. I mean, it
was--a little ways from-- and they were coming. They--I mean, it just hit
me and--
Q: What hit you?
A: I beg your pardon?
Q: What hit you?
A: I really don't know. I really don‟t know. I didn‟t see--like I said, I didn‟t
see anything. AIl I know is that I had a real big hard hit on my back. I
mean, it just hit me real hard on my back. I didn‟t know what had hit--what
had hit me. I don‟t know who it was or--or how many there were or
nothing or if they all hit me. I don't know. I couldn‟t tell you because I
didn't see anything.


                                       9
       Q: Okay. So they hit you from behind?
       A: Right.
       Q: Okay. Did they knock you into something?
       A: Against a wall--towards the wall.
       Q: Okay. But you don't know if it was one person or more than one
       person?
       A: I couldn‟t tell you.
       United‟s motion asserted Mrs. Guerra‟s testimony is not supported by the video

evidence. But issues of witness credibility, the weight assigned their testimony, and the

resolution of conflicts in the evidence are for the trier of fact following a conventional trial

on the merits. Matlock Place Apts., L.P. v. Druce, 369 S.W.3d 355, 375 (Tex.App.--Fort

Worth 2012, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex.

2005)).


       United‟s assertion the video record is conclusive on the issue of causation might

more properly be considered as presenting a traditional summary judgment ground.

Whether considered as a no-evidence or traditional ground, however, it must fail. See

Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970) (reiterating that

summary judgment requires proof that establishes as a matter of law there is no

genuine issue of fact).


       The summary judgment in United‟s favor as to Mary Guerra cannot be sustained

on the no-evidence ground its motion asserted.




                                              10
Affirmative Defense of Superseding Cause


         In the part of its motion presenting its traditional grounds, United asserted the

alleged criminal conduct of the suspected shoplifter was a superseding intervening

cause relieving it of any liability. The criminal conduct of a third party is ordinarily a

superseding cause of damage unless the criminal conduct is a foreseeable

consequence of the defendant‟s actions. See Nixon v. Mr. Property Management Co.,

690 S.W.2d 546, 550 (Tex. 1985); Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex.

1999).     Foreseeability means the actor should anticipate the dangers a person of

ordinary intelligence would anticipate. Nixon, 690 S.W.2d at 549-50.


         A defendant seeking summary judgment on the ground the defendant negated

foreseeability as an element of proximate cause must prove more than simply the

occurrence of intervening third-party criminal conduct. Phan Son Van, 990 S.W.2d at

754.     The defendant has the burden to prove that the criminal conduct was not

foreseeable, because to be a superseding cause of injury, “the intervening force must

not be ordinarily or reasonably foreseeable.” Id. (citations omitted).         For such a

determination, the following considerations may be pertinent:


         (a) the fact that the intervening force brings about harm different in kind
         from that which would otherwise have resulted from the actor's
         negligence;
         (b) the fact that the intervening force‟s operation or the consequences
         thereof appear after the event to be extraordinary rather than normal in
         view of the circumstances existing at the time of the force's operation;
         (c) the fact that the intervening force is operating independently of any
         situation created by the actor's negligence, or, on the other hand, is or is
         not a normal result of such a situation;



                                             11
       (d) the fact that the operation of the intervening force is due to a third
       person‟s act or to his failure to act;
       (e) the fact that the intervening force is due to an act of a third person
       which is wrongful toward the other and as such subjects the third person
       to liability to him; [and]
       (f) the degree of culpability of a wrongful act of a third person which sets
       the intervening force in motion.
Id.; see also Palacio v. AON Properties, Inc., 110 S.W.3d 493, 499 (Tex.App.--Waco

2003, no pet.). United‟s summary judgment evidence was to the effect that, except for

the Guerras, “there have been no employee or customer accidents and/or injuries that

have occurred because of a shoplifter attempting to avoid apprehension at the United

store in Levelland.”    But the other evidence we have noted shows that United‟s

employees forcibly detained this suspected shoplifter as he attempted to leave the

store, and when he escaped their custody and ran, employees gave chase in the

presence of other customers. The Guerras approached the exit at about the same

moment. Mrs. Guerra was caught in the ensuing altercation among store employees

and the suspect and claims injuries. After applying the considerations discussed in

Phan Son Van, 990 S.W.2d at 754, we find the summary judgment evidence raises a

fact issue whether the suspect‟s conduct and the resulting risks to customers like Mrs.

Guerra were ordinarily or reasonably foreseeable. Thus, on this record, whether the

criminal conduct of the shoplifting suspect was a superseding intervening force breaking

the causal nexus between any negligence of United and any resulting injury to Mrs.

Guerra is a question of material fact.


       Having thus concluded the summary judgment cannot be sustained on the basis

of the affirmative defense raised by United, we find the trial court erred in rendering

summary judgment that Mrs. Guerra take nothing from United.

                                           12
Loss of Consortium Claim of Mr. Guerra


      In its traditional motion for summary judgment United urged “Mr. Guerra has

readily admitted that he did not suffer any injury because of the incident at United and

that his relationship with his wife has not changed since December 5, 2008.” The claim

of a spouse for loss of consortium is derivative in nature requiring proof the other

spouse suffered serious, permanent, and disabling injuries. See Dunn v. Bank-Tec

South, 134 S.W.3d 315, 325 (Tex.App.--Amarillo 2003, no pet.) (citing Browning Ferris

Indus., Inc. v. Lieck, 881 S.W.2d 288, 294 (Tex. 1994)). The existence of a spouse‟s

injuries must be linked to the diminished or missing affection, solace, companionship,

society, assistance, and sexual relations contemplated within the theory of consortium.

See id. (citing Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993)).


      As proof, United directs us to the following excerpt from Mr. Guerra‟s deposition:


      Q. [United‟s attorney]: Well, do you—do you claim that United has injured
      you in any way—
      A. [Mr. Guerra]: Not me. Not me.
      Q. Okay.
      A. Maybe her, not me.
      Q. Well, has this incident at United changed your relationship with your
      wife in any way?
      A. Gosh, no.
      Q. Does she love you any less than she did?
      A. Well, of course she loves me less. She is too old.
      Q. Well, I‟m talking about—she loves you and takes care of you?
      A. Yeah. We are the same, yes, as we was.
      Q. So that relationship hasn‟t changed?

                                           13
      A. No.
      Q. You still have lots of companionship?
      A. Yeah.
      Q. Okay.
      A. I guess so.
      Q. And she helps take care of you?
      A. Yes.
      Q. And you help take care of her?
      A. Of course, if I can.
      Q. And you both provide for each other emotional support?
      A. That‟s right.
      Q. And so on the day before the incident and now, is there any difference
      in your relationship with your wife?
      A. Not—not between us, no.
      A brief line of questions by Mr. Guerra‟s counsel followed. Mr. Guerra seemed to

indicate he and Mrs. Guerra were not as sexually intimate after the accident as before.

But the deposition concluded with the following exchange:


      Q. [Mr. Guerra‟s counsel]: So you‟re saying that after the accident, there
      is less intimate moments than there were before?
      A. Well, it‟s the same. It‟s the same.
      Without deciding, however, whether this testimony constitutes conclusive proof

on the ground asserted, we read United‟s no-evidence motion as also challenging Mr.

Guerra‟s loss of consortium claim. Therein, United alleges, “Specifically, the Plaintiffs

have produced no evidence that Defendant United caused either of the Plaintiffs any

injury.” When a party moves for summary judgment on both traditional and no-evidence

grounds, we first consider the no-evidence grounds. Merriman v. XTO Energy, Inc., No.


                                           14
11-04942013, Tex. Lexis 492, at *6 (Tex. 2013) (citing Ridgway, 135 S.W.3d at 600). If

the nonmovant fails to produce more than a scintilla of evidence, we do not consider

whether the movant‟s proof offered in support of its traditional motion is conclusive.

Ridgway, 135 S.W.3d at 600.


       Here, the only summary judgment evidence concerning a causal nexus between

Mrs. Guerra‟s injury and any loss by Mr. Guerra is the testimony included in his

deposition excerpt. Mr. Guerra‟s testimony gives rise to no more than a surmise or

speculation linking his wife‟s injury with any diminished or missing affection, solace,

companionship, society, assistance, and sexual relations. In legal effect, this amounts

to no evidence. Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex.

1970). In the absence of any evidence by Mr. Guerra of an element of his loss of

consortium claim, the trial court did not err in rendering summary judgment that he take

nothing.


                                      Conclusion


       We affirm that portion of the trial court‟s summary judgment decreeing that Tony

Guerra take nothing from United on his claim for loss of spousal consortium. We

reverse that portion of the trial court‟s order granting summary judgment in favor of

United on the claim of Mary Guerra and remand the case for further proceedings

consistent with this opinion.


                                               James T. Campbell
                                                   Justice




                                          15
