Opinion filed February 21, 2014




                                        In The


        Eleventh Court of Appeals
                                     __________

                                  No. 11-12-00017-CV
                                      __________

                 CRAIG HOFFMAN ET AL., Appellants
                             V.
                 AMY CATHERINE WRIGHT, Appellee


                     On Appeal from the Probate Court No. 1
                              Travis County, Texas
                     Trial Court Cause No. C-1-PB-08-011659


                     MEMORANDUM OPINION
      This appeal involves wrongful death claims made by Craig and Lydia
Hoffman that arose in connection with the death of their daughter, Lauren, age
seventeen. It also involves wrongful death claims brought by Lester and Ellen
Ducote for the wrongful death of their daughter, Audrey, age sixteen. Lauren and
Audrey both died from injuries received in the same vehicle collision. The trial
court granted a summary judgment in favor of Amy Catherine Wright, the driver of
the vehicle in which Lauren and Audrey were passengers. This appeal is from that
ruling. We affirm.
                    I. Background Facts and Procedural History
      Lauren, Audrey, Wright, Wright’s stepdaughter, and one other passenger
traveled west on State Highway 71 near Bee Cave Road in Wright’s sedan.
Tammy Goodman was the driver of a pickup and traveled east on the same rain-
swept road. About a mile west of the Bee Cave Road intersection, Goodman’s
pickup lost traction, and she lost control of her pickup. It “fishtailed” across traffic
lanes. Goodman’s pickup slid across the descending roadway into the westbound
lanes and oncoming traffic. Her pickup collided with Wright’s sedan in the right
outside lane as the sedan traveled westbound.           Everyone in Wright’s sedan
sustained serious injuries; Lauren and Audrey died at the scene.
      The summary judgment evidence showed that Lauren was wearing her seat
belt and that she was either seated in the middle or right rear seat at the time of the
collision. She sustained various injuries, including blunt force trauma to her head.
Testimony revealed that Audrey may have been in the left rear or middle rear seat
and showed that she also sustained injuries, including blunt force trauma to her
head. Both Lauren and Audrey died from their blunt force trauma injuries. The
evidence did not indicate that Audrey was wearing her seat belt.
      Audrey’s parents filed a wrongful death suit against Goodman and other
defendants and later added Wright as an additional defendant. Lauren’s parents
filed a separate wrongful death suit against Goodman and Wright and other
defendants. Wright moved for summary judgment as a matter of law that she owed
no duty and that Appellants had no evidence that her actions were a breach of a
duty that proximately caused Lauren’s and Audrey’s deaths.
      Lauren’s and Audrey’s parents filed a unified response and argued that
Wright had both a statutory duty under Section 545.413(b) of the Texas




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Transportation Code 1 to ensure that her passengers under the age of seventeen
were seat belted and a duty under Section 545.351 of the same Code 2 to control her
speed, as well as a common-law duty of reasonable care to avoid the accident. The
trial court heard Wright’s no-evidence motion for summary judgment, granted it,
and entered an order consolidating Appellants’ suits under one cause number. The
trial court then severed its summary judgment order in favor of Wright in the
consolidated cases into a separate case. That summary judgment is the subject of
this appeal.
      Appellants argued that they presented summary judgment evidence that
raised a material fact question on both breach and proximate cause. Appellants
included, as evidence, deposition excerpts of Wright; Trooper Ricardo Lomas, who
investigated the accident; and Daphne Kay Thomas, a witness to the accident.
Appellants included an affidavit from another witness, Leland Shane Floyd.
Appellants also submitted the death certificates, the autopsy and postmortem
reports for Lauren and Audrey, and the accident reports from the Texas
Department of Public Safety and the Travis County Sheriff’s Department.
                                    II. Issue Presented
      Appellants assert that they presented more than a scintilla of evidence of
Wright’s failure to ensure that Audrey wore her seat belt.       Appellants claim
Wright’s actions constituted negligence per se under Section 545.413(b) of the
Texas Transportation Code. Appellants also claimed Wright’s failure to control
her speed, brake properly, or swerve to avoid the accident was a breach of her duty
of reasonable care under common law. Appellants further assert that her failure to
control her speed was a violation of Section 545.351 of the Texas Transportation


      1
       TEX. TRANSP. CODE ANN. § 545.413(b) (West Supp. 2013).
      2
       Id. § 545.351 (West 2011).

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Code. Appellants contend Wright’s actions proximately caused their daughters’
deaths.
                              III. Standard of Review
      The summary judgment order of the trial court does not specify the grounds
upon which the trial court relied. When a trial court’s order granting summary
judgment does not specify the ground or grounds relied upon for its ruling,
summary judgment will be affirmed on appeal if any of the summary judgment
grounds advanced by the movant are meritorious. Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 601 (Tex. 2004); Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242
(Tex. 2001); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
      A trial court must grant a 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). A no-evidence summary judgment is
essentially a pretrial directed verdict, and we apply the same legal sufficiency
standard in reviewing a no-evidence summary judgment as we apply in reviewing
a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex.
2003). We review the evidence in the light most favorable to the nonmovant,
disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997).
      Both direct and circumstantial evidence may establish any material fact.
Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001); Browning-Ferris, Inc. v.
Reyna, 865 S.W.2d 925, 928 (Tex. 1993). A plaintiff produces more than a scin-
tilla of evidence if the evidence “rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions.” Ford Motor Co., 135 S.W.3d at
601 (quoting Havner, 953 S.W.2d at 711, and Burroughs Wellcome Co. v.


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Crye, 907 S.W.2d 497, 499 (Tex. 1995)); see Morgan v. Anthony, 27 S.W.3d 928,
929 (Tex. 2000).
        But to raise a genuine issue of material fact, the evidence must transcend
mere suspicion. Ford Motor Co., 135 S.W.3d at 601. If the evidence offered to
prove a vital fact does nothing more “than create a mere surmise or suspicion of its
existence, then the evidence is no more than a scintilla and, in legal effect, is no
evidence.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.
1983)). Evidence that is so slight as to make any inference a guess is no evidence.
Id. (citing Lozano, 52 S.W.3d at 148, and Browning-Ferris, 865 S.W.2d at 928).
                                   IV. Discussion and Analysis
        Automobile drivers have a common-law duty to exercise ordinary care as
would a reasonably prudent motorist acting under the same or similar
circumstances. Hatcher v. Mewbourn, 457 S.W.2d 151, 152 (Tex. Civ. App.—
Texarkana 1970, writ ref’d n.r.e.). Appellants argue that Section 545.413(b)
created a statutory duty upon the driver of a vehicle to ensure that passengers under
the age of seventeen wear seat belts and that a violation of this statute constitutes
negligence per se. Appellants also argue that Section 545.351 created a statutory
duty for Wright to drive at a safe speed under the conditions presented.
        If we assume, without deciding, that Wright had a duty under
Section 545.413(b) in addition to a common-law duty of reasonable care 3 and if we
further assume, without deciding, that Wright breached either one of those duties,
then the question that remains for consideration is the following: Did Appellants
present competent summary judgment evidence to raise an issue of material fact as


        3
         Because Section 545.351 outlines a reasonable-person standard, it does not support a negligence
per se cause of action. “[A] statute that requires a driver proceed safely imposes on the driver a duty of
reasonable care, thus precluding a negligence per se instruction.” Gore v. Gore, 233 S.W.3d 911, 913
(Tex. App.—Beaumont 2007, pet. denied) (quoting La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 675
(Tex. 1998)).

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to whether Wright’s actions proximately caused Lauren’s and Audrey’s deaths?
As we explain below, we hold they did not.
      The elements of a negligence cause of action are the existence of a legal
duty, a breach of that duty, and damages proximately caused by the breach. D.
Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Proximate cause is
generally a question of fact for the jury, but proximate cause may be established as
a matter of law if the circumstances are such that reasonable minds could not arrive
at a different conclusion. Boyd v. Fuel Distribs., Inc., 795 S.W.2d 266, 272 (Tex.
App.—Austin 1990, writ denied) (citing Mo. Pac. R.R. Co. v. Am. Statesman, 552
S.W.2d 99, 104–05 (Tex. 1977)). The two elements of proximate cause are “cause
in fact” and “foreseeability.” IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v.
Mason, 143 S.W.3d 794, 798 (Tex. 2004) (citing Travis v. City of Mesquite, 830
S.W.2d 94, 98 (Tex. 1992)).
      “Cause in fact” means that the act or omission was a substantial factor in
bringing about the injury, and without it harm would not have occurred. Travis,
830 S.W.2d at 98 (citing Kerby v. Abilene Christian Coll., 503 S.W.2d 526, 528
(Tex. 1973)). “‘Foreseeability’ means that the actor, as a person of ordinary intel-
ligence, should have anticipated the dangers that his negligent act created for
others.” Id. (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549–50 (Tex.
1985), and Mo. Pac. R.R. Co., 552 S.W.2d at 103). Because injuries to Wright’s
passengers would have been a foreseeable consequence if Wright had failed to act
with reasonable care while driving, we focus our analysis on whether any action by
Wright proximately caused or was a “cause in fact” of Lauren’s and Audrey’s
injuries and deaths.
      Appellants argue that the medical evidence, to the effect that Audrey died
from blunt force trauma to the head sustained during the accident, raised an
inference that she would not have sustained a head injury if she had worn her seat
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belt. But neither the medical examiner nor anyone else opined that Wright’s
alleged failure to ensure that Audrey wore her seat belt or that any of Wright’s
other actions or inactions caused Audrey’s head injuries. And “cause in fact” is
not established if the defendant’s negligence does no more than furnish a condition
that makes the injuries possible. Doe v. Boys Clubs of Greater Dallas, Inc., 907
S.W.2d 472, 477 (Tex. 1995) (citing Bell v. Campbell, 434 S.W.2d 117, 120 (Tex.
1968)).
      In other words, Wright’s conduct may be too attenuated from the resulting
injuries to Audrey and Lauren to be a substantial factor in bringing about the harm.
IHS Cedars, 143 S.W.3d at 799 (citing Boys Clubs, 907 S.W.2d at 477).
Appellants’ argument regarding Audrey’s lack of use of a seat belt is actually an
argument relative to a condition, not a cause. In Bell, the facts showed that, while
two men were cleaning debris from a previous accident, they were struck by a car
and injured. Bell, 434 S.W.2d at 120. The supreme court held that the previous
accident simply created a condition that made the men’s injuries possible, but was
not a proximate cause of the men's injuries. Id. at 120–22. Similarly, Audrey’s
failure to wear a seat belt was just a condition because no one would have been
injured had Goodman not struck Wright’s sedan with her pickup. Appellants’ seat
belt argument is mere speculation because Hoffman was wearing a seat belt and
sustained a fatal head injury; proof of causation cannot “turn upon speculation or
conjecture.”   Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996) (quoting
Lenger v. Physicians Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970)).
      Appellants also contend that Trooper Lomas’s deposition testimony that he
found no skid marks from Wright’s sedan raises an inference that Wright failed to
properly brake or act to avoid the accident. Appellants also argue that Thomas’s
statement about Goodman’s movement on the road and the statement that the


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“Honda should do something”4 reinforced that inference and presented a fact
question on proximate cause.
       To establish a fact by circumstantial evidence, the circumstances
       relied on must have probative force sufficient to constitute a basis of
       legal inference; it is not enough that they raise a mere surmise or
       suspicion of the existence of the fact or permit a purely speculative
       conclusion. The circumstances relied on must be of such a character
       as to be reasonably satisfactory and convincing. At all events they
       must not be equally consistent with the non-existence of the ultimate
       fact.

Polasek v. Quinius, 438 S.W.2d 828, 837 (Tex. Civ. App.—Austin 1969, writ ref’d
n.r.e.) (quoting Bledsoe v. Yarborough, 422 S.W.2d 222, 227 (Tex. Civ. App.—
Tyler 1967, no writ)). Appellants adduced no evidence that the accident could
have been avoided had Wright braked or taken such evasive action that would have
left skid marks on the roadway. Appellants also adduced no medical evidence that,
had Wright done anything to create skid marks, the result would have been that
Audrey and Lauren would not have suffered head injuries. It is equally plausible
that such action would have had no effect in light of the undisputed evidence of
Goodman’s actions.
       Thomas testified at her deposition that, just before the accident, as she
traveled eastward and moved to the right lane to avoid Goodman, who had
approached her from behind and “got on her bumper,” Goodman gunned her
engine and tried to pass Thomas. Then Goodman lost control of her pickup,
fishtailed through traffic lanes, and moved into oncoming traffic where she struck
Wright’s sedan. Thomas stated that Wright was driving slower than a normal rate




       4
        The questions and answers reference a Honda vehicle, but both the deponent and the lawyer
asking questions meant Wright’s Acura sedan.

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of speed,5 that everything happened in “seconds,” and that there was nothing
Wright could have done to avoid the accident. Another witness to the accident,
Floyd, recalled that Goodman had hydroplaned her pickup and had moved into the
oncoming lane where she struck Wright’s sedan. Appellants’ summary judgment
evidence indicated that Trooper Lomas investigated the accident and cited
Goodman’s failure to control speed and her driving on the wrong side, not passing,
as the cause of the accident. Trooper Lomas cited no action by Wright as a cause
of the accident.
       Because Appellants presented no evidence that Wright’s actions or inactions
proximately caused the accident or Lauren’s or Audrey’s death, we cannot say that
the trial court erred when it granted summary judgment.

                                           V. Conclusion
        Lauren’s and Audrey’s deaths were tragic, and nothing can assuage the grief
suffered by her parents, family, and friends. But before Wright can be held liable
for their deaths, Appellants must adduce more than a scintilla of evidence that an
act or omission by Wright was a proximate cause of the accident or of Lauren’s
and Audrey’s deaths. Because Appellants have not met this burden, we overrule
their sole issue on appeal.
                                       This Court’s Ruling
        We affirm the judgment of the trial court.




February 21, 2014                                              MIKE WILLSON
Panel consists of: Wright, C.J.,                               JUSTICE
Willson, J., and Bailey, J.
       5
         Wright testified that her speed was 45 to 50 miles per hour prior to the accident and that she
turned the wheel to the right and tried to brake prior to the collision. Trooper Lomas said he could not
determine the speed of the sedan at the point Goodman’s pickup struck the sedan.

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