                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-08-00022-CV

JAMES DEWBRE,
                                                             Appellant
    v.

ANHEUSER-BUSCH, INC.,
                                                             Appellee



                               From the 220th District Court
                                 Hamilton County, Texas
                                 Trial Court No. CV50372


                              MEMORANDUM OPINION


         James Dewbre was transporting beer for Anheuser-Busch, Inc.1 when the load

shifted and his truck rolled over. Dewbre sued Anheuser-Busch, alleging that the

trailer was improperly loaded. The trial court granted Anheuser-Busch’s no-evidence

motion for summary judgment. In a single point, Dewbre appeals the granting of this

motion, arguing that the evidence raises a genuine issue of material fact as to whether




1        Dewbre is not an employee of Anheuser-Busch, Inc.
the accident was proximately caused by Anheuser-Busch’s negligence in loading the

trailer. We reverse and remand.

                                 STANDARD OF REVIEW

       We review a no-evidence summary judgment under the same standard of review

as a directed verdict. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006).

“We review the evidence presented by the motion and response in the light most

favorable to the party against whom the summary judgment was rendered, crediting

evidence favorable to that party if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not.” Id. at 582. A no-evidence summary

judgment will be defeated if the non-movant produces some evidence “raising an issue

of material fact” on the elements challenged by the movant. Id.

                            NO-EVIDENCE SUMMARY JUDGMENT

       Dewbre contends that he provided expert testimony, via the deposition

testimony of both himself and DPS Trooper Steven Schwartz, sufficient to raise a

genuine issue of material fact and survive summary judgment. Anheuser-Busch argues

that Dewbre failed to: (1) properly designate experts; and (2) designate an expert who is

qualified to testify to whether Anheuser-Busch was negligent in loading the trailer or

that such negligence caused the roll-over.2          Anheuser-Busch raised the improper

designation argument in both its no-evidence motion and a separate motion to strike,

but did not obtain a specific ruling on the issue. Accordingly, the issue is not preserved


2      To establish negligence, a party must establish a duty, a breach of that duty, and damages
proximately caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006).



Dewbre v. Anheuser-Busch, Inc.                                                            Page 2
for our review. See Page v. State Farm Lloyds, 259 S.W.3d 257, 265-66 (Tex. App.—Waco

2008, pet. filed). We may only consider whether Schwartz and Debrew were qualified

as experts. Id. at 266.

       Because the parties do not dispute that expert testimony is required, we will

assume without deciding that Dewbre was required to present expert testimony to

establish whether Anheuser-Busch was negligent. See Tamez, 206 S.W.3d at 583 (“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. Expert testimony is required when

an issue involves matters beyond jurors’ common understanding.”).

                                 Dewbre’s Deposition Testimony

       Dewbre testified that he has a commercial driver’s license, has driven

commercial vehicles for about twenty years, and previously owned his own trucking

company. He has both classroom and on-the-job training regarding accepting, securing,

and driving loads. He has no formal training on weight distribution or requirements.

       Dewbre hauled numerous loads for Anheuser-Busch in the two and a half years

preceding the accident.      He is familiar with Anheuser-Busch’s load configurations.

Most loads are a “double 11” configuration: “[e]leven pallets from where it starts to the

end would be 22 pallets.” He has had one “double 11” load shift, causing a pallet to fall

over. Depending on the type of load, the manner of driving may need to be modified.




Dewbre v. Anheuser-Busch, Inc.                                                     Page 3
       In the past, cargo was “live-loaded”; drivers actually helped load the cargo and

gave instructions. Dewbre has supervised approximately twenty loads. He typically

loads the pallets “[s]ide to side with void fillers,” a “piece of cardboard that unfolds and

[] makes a mesh” to “hold[] the pallets in place so they can’t leap, they can’t move.”

Most cargo is now pre-loaded. Dewbre secures the load to the “best of [his] ability.”

This includes installing load locks, which “go[] against the sides and you jack it up, and

it has got pads on each end of it, keep it from slipping.”

       At some point, Anheuser-Busch stopped using void fillers and began stacking

pallets seven or eight layers high, causing them to fall or turn over. On the day of the

accident, Dewbre did not inspect the load. However, he was certain that there were no

void fillers because they are always listed on the bill of lading, but were not listed on

the day of the accident. He observed that the load was shrink-wrapped and the pallets

were stacked about seven feet high. He installed load locks.

       At some point during transport, the truck left the lane of traffic and crossed onto

the shoulder. When Dewbre attempted to correct, the “beer hit the side of the trailer so

hard that it slapped the truck down,” like “being at the end of a bullwhip.” He testified

that he has “pulled enough loads, [to] know when something is moving or something is

-- something is moving around, and it definitely got all shifted up against the side.”

       Dewbre opined that the lack of void fillers caused the pallets to shift to the side,

which caused the roll-over. Void fillers would have prevented both the shifting and the

roll-over. Because the truck contained thirty feet of “open space,” Dewbre believed that

Anheuser-Busch should have “set the load down” instead of stacking the pallets so


Dewbre v. Anheuser-Busch, Inc.                                                        Page 4
high. He concluded that Anheuser-Busch negligently loaded the beer by failing to use

void fillers and by stacking the pallets too high.

                        Trooper Schwartz’s Deposition Testimony

          Schwartz testified that he has been a trooper for over five years and has

completed Level 2 accident reconstruction training. He is not trained on loading a

tractor-trailer, does not have a commercial driver’s license, has never driven a

commercial vehicle, is not familiar with the standards for loading commercial vehicles,

and does not know about void fillers. Although he did not actually load the trucks,

Schwartz grew up working at a grocery store unloading trailers and is familiar with

“how loads can shift and how they are normally loaded.” He further testified that he

has “practical hands-on knowledge” about the affects of a shifting load. He testified

that cattle must be “blocked correctly” or “can cause the trailer to jerk or the whole

thing to jerk because you got too much weight on the back end, not enough weight on

the tongue.” As for flat-beds, “if you put too much weight on the one side [] the trailer

will whip.” He testified that either a load shift or road conditions can cause a roll-over.

He has seen four accidents, two of which he investigated, where a tractor-trailer rig

tipped over because of a load shift.

       At the scene of Dewbre’s accident, Schwartz observed several pallets of beer

lying on the side of the trailer. Some beer had fallen out of the truck when the door was

opened. He believed that this occurred because the beer had shifted. He could not tell

whether the pallets had been secured and the condition of the cargo made it difficult to

assess how it had been loaded. Schwartz opined that the truck “drifted off the roadway


Dewbre v. Anheuser-Busch, Inc.                                                       Page 5
and then attempted to correct itself,” but rolled over because of a “steep incline in the

bar ditch and a shift in its load.” He gave no opinion as to what caused the truck to

drift off the roadway. Nor could he provide an opinion as to whether the cargo was

either properly or improperly loaded.

                                          Analysis

       An expert must be qualified and his opinion must be relevant and have a reliable

foundation. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001). An expert is

qualified “by knowledge, skill, experience, training, or education.” TEX. R. EVID. 702

Nonscientific expert testimony may be considered unreliable if “‘there is simply too

great an analytical gap between the data and the opinion proffered.’” Kerr-McGee Corp.

v. Helton, 133 S.W.3d 245, 254 (Tex. 2004) (quoting Gammill v. Jack Williams Chevrolet,

Inc., 972 S.W.2d 713, 726 (Tex. 1998) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146,

118 S. Ct. 512, 519, 139 L. Ed. 2d 508 (1997))).

       There can be no doubt that Schwartz was qualified to give an opinion that the

shifting load caused the truck to roll-over. See Lingafelter v. Shupe, No. 10-03-00113-CV,

2004 Tex. App. LEXIS 10355, at *13-14 (Tex. App.—Waco Nov. 17, 2004) (mem. op), rev’d

on other grounds, 192 S.W.3d 577 (Tex. 2006) (“The opinion of an investigating officer

with level two reconstruction training is admissible”); see also Ter-Vartanyan v. R&R

Freight, Inc., 111 S.W.3d 779, 781-82 (Tex. App.—Dallas 2003, pet. denied) (finding

officer with training in accident investigation qualified to provide an expert opinion as

to the cause of a traffic accident). However, he could not give an opinion as to whether




Dewbre v. Anheuser-Busch, Inc.                                                       Page 6
the load shifted because the cargo was improperly loaded. In fact, he could not even

tell how the cargo had been loaded. His testimony is no evidence of negligence.

       Dewbre, however, possesses sufficient knowledge, skill, and experience to

qualify as an expert in this case. See TEX. R. EVID. 702. He has supervised the loading of

commercial vehicles and is apparently familiar with the standards for doing so. He

observed the load on the day of the accident. Based on his experience, he believed that

the pallets were stacked too high and were not supported by void fillers. He testified

that the purpose of void fillers is to prevent the load from shifting. He felt the load hit

the side of the truck and then felt the truck begin to roll over. He clearly explained the

basis of his conclusion that Anheuser-Busch negligently loaded the cargo: stacking the

pallets too high and failing to use void fillers. See Earle v. Ratliff, 998 S.W.2d 882, 890

(Tex. 1999) (“An expert’s simple ipse dixit is insufficient to establish a matter; rather, the

expert must explain the basis of his statements to link his conclusions to the facts.”). He

also explained what he would have done differently. His testimony is sufficiently

reliable because there does not appear to be any significant “analytical gap” between his

opinions and the bases for those opinions. See Kerr-McGee, 133 S.W.3d at 254.

       We, therefore, conclude that Dewbre’s testimony was sufficient to raise a

genuine issue of material fact as to whether the accident was proximately caused by

Anheuser-Busch’s negligence in loading the trailer. The trial court improperly granted

Anheuser-Busch’s no-evidence motion for summary judgment. We sustain Dewbre’s

sole issue. The trial court’s judgment is reversed and this cause is remanded for further

proceedings consistent with this opinion.


Dewbre v. Anheuser-Busch, Inc.                                                          Page 7
                                                    FELIPE REYNA
                                                    Justice
Before Chief Justice Gray,
        Justice Vance, and
        Justice Reyna
        (Chief Justice Gray concurs only in the judgment. A separate opinion will not
issue.)
Reversed and remanded
Opinion delivered and filed November 26, 2008
[CV06]




Dewbre v. Anheuser-Busch, Inc.                                                 Page 8
