                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-10-00171-CV

MARY FRANCES HAFERKAMP,
                                                          Appellant
v.

SSC WACO GREENVIEW OPERATING
COMPANY, LP, MARINER HEALTHCARE
MANAGEMENT COMPANY, SSC PASADENA
OPERATING COMPANY, LP, LLC,
SAVANSENIORCARE, LLC, SAVASENIORCARE
ADMINISTRATIVE SERVICES, LLC,
                                   Appellees



                          From the 414th District Court
                            McLennan County, Texas
                           Trial Court No. 2007-1083-5


                         MEMORANDUM OPINION


      Mary Frances Haferkamp appeals the trial court’s summary judgment in favor of

SSC Waco Greenview Operating Company LP, Mariner Healthcare Management

Company, SSC Pasadena Vista Operating Company, SavaSeniorCare, LLC, and

SavaSeniorCare Administrative Services, LLC (collectively, Appellees). We will affirm.
       In her second amended petition, Haferkamp sued Appellees for negligence

arising out of an alleged workplace injury.       Haferkamp specifically alleged that

Appellees were nonsubscribers to worker’s compensation insurance and that, while in

the course and scope of her employment, Haferkamp sustained bodily injuries at

Appellees’ Greenview Manor nursing home facility in Waco.         On the occasion in

question, Appellees were negligent “in failing to provide [Haferkamp] with a

reasonably safe place to work” and “in failing to furnish to [Haferkamp] reasonably

safe and adequate implements or tools with which she could perform her duties for her

employers without exposing herself to an unreasonable risk of accidental personal

injuries and disabling injuries.”        Appellees’ negligence, “individually and/or

collectively, jointly and severally,” was a proximate cause of Haferkamp’s injuries and

resulting damages.

       Appellees filed a traditional motion for summary judgment on Haverkamp’s

negligence claim, arguing that:     (1) Haferkamp’s deposition testimony conclusively

established that Appellees’ alleged negligence was not the proximate cause of her

injuries; (2) the summary-judgment evidence established that Appellees exercised

ordinary care and thus did not breach their duty to Haferkamp; and (3) SSC Waco

Greenview Operating Company LP, SSC Pasadena Vista Operating Company,

SavaSeniorCare, LLC, and SavaSeniorCare Administrative Services, LLC, were not

Haverkamp’s employers on the date in question and thus cannot be liable.

       Haverkamp subsequently filed her third amended petition and asserted two

additional theories of how Appellees allegedly breached their duty to her: (1) “in

Haferkamp v. SSC Waco Greenview Operating Co.                                    Page 2
failing to have sufficient staff on duty on the occasion in question” and (2) “in violating

the terms, provisions and mandates of Chapter 411 of the Texas Labor Code” (i.e.,

negligence per se).1 See Thomas v. Uzoka, 290 S.W.3d 437, 445 (Tex. App.—Houston [14th

Dist.] 2009, pet. denied) (“Negligence per se is not a separate cause of action that exists

independently of a common-law negligence cause of action. Rather, negligence per se is

merely one method of proving a breach of duty, a requisite element of any negligence

cause of action.”) (citations omitted). Haverkamp also added individual defendants

Leonard Grunstein and Murray Forman.2

          After Haferkamp filed her third amended petition, Appellees did not amend or

supplement their summary-judgment motion. The trial court severed Haverkamp’s

claims against Grunstein and Forman, granted Appellees’ motion for summary

judgment, and dismissed with prejudice Haferkamp’s claims against Appellees in their

entirety.


1   As laid out in the third amended petition, section 411.103 of the Labor Code states:

          Each employer shall:
              (1) provide and maintain employment and a place of employment that is reasonably
          safe and healthful for employees;
              (2) install, maintain, and use methods, processes, devices, and safeguards, including
          methods of sanitation and hygiene, that are reasonably necessary to protect the life,
          health, and safety of the employer’s employees; and
              (3) take all other actions reasonably necessary to make the employment and place
          of employment safe.

TEX. LAB. CODE ANN. § 411.103 (West 2006) (emphasis added where emphasis indicated in Haferkamp’s
petition).

2 Haverkamp alleged that Grunstein and Forman participated in a conspiracy in which they created
multiple layers of corporate ownership and then used the corporate ownership to hide or obscure their
true identity as the owners and operators of the Greenview Manor nursing home. Haverkamp alleged
that the corporate defendants were thus “sham entities which serve[d] no legitimate business purpose
other than to further the conspiracy of the individual defendants,” and, therefore, liability should be
imposed on Grunstein and Forman.

Haferkamp v. SSC Waco Greenview Operating Co.                                                         Page 3
       In her sole issue, Haferkamp contends that the trial court erred in granting

Appellees’ motion for summary judgment.            We review a trial court’s summary

judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003). In reviewing a traditional motion for summary judgment, we must consider

whether reasonable and fair-minded jurors could differ in their conclusions in light of

all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,

755 (Tex. 2007). The movant carries the burden of establishing that no material fact

issue exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);

M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam).

The nonmovant has no burden to respond to a summary-judgment motion unless the

movant conclusively establishes its cause of action or defense. M.D. Anderson Hosp. &

Tumor Inst., 28 S.W.3d at 23.         Once the movant produces sufficient evidence

conclusively establishing its right to summary judgment, however, the burden shifts to

the nonmovant to present evidence sufficient to raise a fact issue. Centeq Realty, Inc. v.

Siegler, 899 S.W.2d 195, 197 (Tex. 1995). In reviewing a traditional summary judgment,

we must consider all the evidence in the light most favorable to the nonmovant,

indulging every reasonable inference in favor of the nonmovant and resolving any

doubts against the motion. See Goodyear Tire & Rubber Co., 236 S.W.3d at 756.

       Haferkamp first argues that the trial court erred in granting summary judgment

to Appellees because their motion for summary judgment was directed to her second

amended petition rather than her third amended petition, which was the live pleading

at the time of the summary-judgment hearing. We disagree.

Haferkamp v. SSC Waco Greenview Operating Co.                                          Page 4
       Generally, a movant who does not amend or supplement its pending motion for

summary judgment to address newly added claims in a subsequent petition is not

entitled to summary judgment on those claims. Wilson v. Davis, 305 S.W.3d 57, 73 (Tex.

App.—Houston [1st Dist.] 2009, no pet.); Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d

584, 592 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In such a case, the portion of the

summary judgment purporting to be final must generally be reversed because the

judgment grants more relief than requested in the motion. See Wilson, 305 S.W.3d at 73;

Blancett, 177 S.W.3d at 592. Limited exceptions apply to this rule: when the movant has

conclusively proved or disproved a matter (usually corresponding to a claim’s element

or to an affirmative defense) that would also preclude the unaddressed claim as a

matter of law or when the unaddressed claim is derivative of the addressed claim, and

the movant proved its entitlement to summary judgment on that addressed claim.

Wilson, 305 S.W.3d at 73 & n.13.

       In her second amended petition, Haferkamp’s sole cause of action against

Appellees was common-law negligence, which consists of three elements: (1) a legal

duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) damages

proximately caused by that breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.

2002). Appellees moved for summary judgment in part on the third element—that the

summary-judgment evidence conclusively established that Appellees’ alleged breach of

duty was not the proximate cause of Haferkamp’s injuries.

       In her third amended petition, Haferkamp did not add any additional

independently viable causes of action to the lawsuit. Instead, she added two additional

Haferkamp v. SSC Waco Greenview Operating Co.                                       Page 5
theories of how Appellees allegedly breached their duty to her.3 To succeed on her

negligence claim as alleged in her third amended petition, however, Haferkamp still

had to establish that Appellees’ alleged breach of duty was the proximate cause of her

injuries. Because we conclude below that Appellees conclusively established that their

alleged breach was not the proximate cause of Haferkamp’s injuries, Haferkamp cannot

establish her negligence claim as alleged in her third amended petition. Thus, the trial

court did not err by granting Appellees’ motion for summary judgment and dismissing

with prejudice Haferkamp’s claims against Appellees in their entirety.

       Haferkamp next argues that the trial court erred in granting summary judgment

to Appellees because the summary-judgment evidence establishes a genuine issue of

material fact.    But, as just stated, we conclude that Appellees have conclusively

established that their alleged breach of duty was not the proximate cause of

Haverkamp’s injuries.

       Proximate cause is generally a fact question. Ambrosio v. Carter’s Shooting Ctr.,

Inc., 20 S.W.3d 262, 266 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). A lack of

proximate cause may be established as a matter of law, however, where the evidence is

without material dispute and the circumstances are such that reasonable minds could

not arrive at a different conclusion. Id. It may also be a question of law when the

relationship between the plaintiff’s injuries and the defendant’s negligence is attenuated

or remote. Id.



3 She also added Grunstein and Forman as individual defendants and alleged conspiracy and alter ego
claims against them as theories of recovery. But, as stated above, these claims were severed.

Haferkamp v. SSC Waco Greenview Operating Co.                                               Page 6
          Proximate cause requires both cause in fact and foreseeability. D. Houston, Inc.,

92 S.W.3d at 454. These elements cannot be satisfied by mere conjecture, guess, or

speculation. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798-

99 (Tex. 2003). The test for cause in fact is whether the act or omission was a substantial

factor in bringing about the injury, without which the injury would not have occurred.

Id. at 799; Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Cause

in fact is not established where the defendant’s negligence does no more than furnish a

condition that makes the injuries possible. IHS Cedars Treatment Ctr., 143 S.W.3d at 799;

Doe, 907 S.W.2d at 477. In other words, the conduct of the defendant may be too

attenuated from the resulting injuries to the plaintiff to be a substantial factor in

bringing about the harm. IHS Cedars Treatment Ctr., 143 S.W.3d at 799; Doe, 907 S.W.2d

at 477.

          Foreseeability requires that a person of ordinary intelligence should have

anticipated the danger created by the negligent act or omission. Doe, 907 S.W.2d at 478.

The particular accident or injury need not be foreseen. Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 551 (Tex. 1985). Foreseeability requires only that the injury be of a general

character that might reasonably have been anticipated and that the injured party be

situated in relation to the wrongful act so that the injury to her or to someone similarly

situated might reasonably have been foreseen. Id.

          Appellees attempted to conclusively establish that the alleged negligence was not

the cause in fact of Haferkamp’s injury by relying on Haferkamp’s deposition

testimony. Haferkamp testified in her deposition that she was injured when she, a

Haferkamp v. SSC Waco Greenview Operating Co.                                          Page 7
licensed vocational nurse, reached out to assist a nursing-home resident who was

standing and then suddenly sat down on the floor.             Haferkamp stated that the

resident’s act of sitting down was unexpected and sudden. When asked if there was

any way that she could think of to have prevented the resident from doing what she

did, Haferkamp replied, “I can’t think of anything,” and agreed that it was

unpreventable.

       Haferkamp was asked what, if anything, those at the nursing home should have

done differently that day. Haferkamp replied that she could not think of anything they

could have done differently except have gait belts available. Haferkamp was also asked

separately if there was any equipment that would have made a difference that night,

and she replied, “Well, possibly if I had been wearing a gait belt, if I had had a gait belt

there.”   Despite her suggestions that she should have had access to a gait belt,

Haferkamp repeatedly said that even if she had had a gait belt on the night that she was

injured, she would not have used it:

              Q. And did you ever think that night, “Well, I need a gait belt”?

              A. No, sir.

              ....

              Q. Sure. From the time Mr. Shelton waved you down or flagged
       you down and you went into Mrs. Shelton’s room until this incident
       occurred there was nothing going on that made you think you needed a
       gait belt?

              A. No, sir.

              ....


Haferkamp v. SSC Waco Greenview Operating Co.                                         Page 8
              Q. And one thing you do know is that from what you saw in
       dealing with Ms. Shelton that evening on April 13, 2005, you didn’t see
       anything when you went in there to assist her and her son that made you
       thing you needed a gait belt?

              A. No, sir.

              ....

              Q. . . . .
              My question is during that minute or so that you were with Ms.
       Shelton prior to her suddenly sitting down, you didn’t see any reason to
       get a gait belt or any assistive device, did you?

              A. No, sir.

Haferkamp was also asked, “And in looking back in hindsight, can you see anything

now that you would have done any different if that same situation were to develop?”

Haferkamp replied, “No, I can’t.”

       Haferkamp also stated in her deposition that she never thought that she needed

assistance on the night that she was injured:

            Q. And you didn’t see anything that made you think you needed
       somebody else in there with you and her son, did you?

              A. No, sir, not at that time.

              Q. As far as dealing with what you dealt with there with Ms.
       Shelton, you thought with you and her son and her in her physical
       condition, that that was all of the folks that needed to be there, true?

              A. Yes, sir.

              ....

               Q. In fact, you didn’t see a reason to call out for anybody else to
       assist you, did you?

              A. No, sir.

Haferkamp v. SSC Waco Greenview Operating Co.                                        Page 9
She confirmed that she thought she and the patient’s son had the situation well in hand.

Haferkamp was asked, “But other than letting them fall, Ms. Haferkamp, there was

nothing you could have done different that night, was there?” She replied, “Not at that

time, no, sir.”

          This summary-judgment evidence conclusively established that Appellees’

alleged breach of duty was not the cause in fact of Haferkamp’s injury. Appellees

therefore satisfied their initial burden and shifted the burden to Haferkamp to present

evidence sufficient to raise a fact issue. See Centeq Realty, Inc., 899 S.W.2d at 197.

          In support of her argument that the summary-judgment evidence raises a fact

issue, Haferkamp points to an affidavit that she made after her deposition in which she

stated:

          Gait belts were not kept at the Nurses Station before my injury. If a gait
          belt had been available to me I would have had it with me at all times
          when I was on duty.

                  ....

                . . . If my employer had issued me a gait belt before the injury
          causing event I would have used it to ease the patient to the floor,
          wheelchair or bed in a manner that would not have caused the injury to
          my back.

But the trial court expressly sustained Appellees’ objections to these statements in

Haferkamp’s affidavit and ordered that the statements be inadmissible and stricken.

Haferkamp does not challenge this ruling. Therefore, these statements in Haferkamp’s

affidavit cannot raise a fact issue.




Haferkamp v. SSC Waco Greenview Operating Co.                                            Page 10
       Haferkamp also contends that Appellees should not have been granted summary

judgment because section 406.033 of the Labor Code provides that contributory

negligence, assumed risk, and negligence of a fellow employee are not defenses in a suit

such as this. See TEX. LAB. CODE ANN. § 406.033(a) (West Supp. 2011). Appellees did not

assert these defenses, however. Appellees did not assert that Haferkamp was negligent.

Rather, Appellees asserted that their alleged breach of duty could not have caused

Haferkamp’s injuries because she testified that the patient’s act of sitting down was

unexpected and sudden and, in hindsight, there is nothing that she would have done

differently.   To the extent that Haferkamp is complaining about the overruling of

objections she made based on this argument, we conclude that the objections were

properly overruled.

       Haferkamp failed to produce evidence raising a fact issue as to whether

Appellees’ alleged breach of duty was the cause in fact of her injury. Thus, the trial

court did not err in granting Appellees’ motion for summary judgment. See Frost Nat’l

Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010) (“A defendant who conclusively

negates at least one of the essential elements of a cause of action . . . is entitled to

summary judgment.”). We overrule Haferkamp’s sole issue and affirm the trial court’s

judgment.



                                                REX D. DAVIS
                                                Justice




Haferkamp v. SSC Waco Greenview Operating Co.                                    Page 11
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 14, 2012
[CV06]




Haferkamp v. SSC Waco Greenview Operating Co.   Page 12
