Opinion issued August 20, 2019




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-17-00913-CV
                           ———————————
                       REFUGIO SANCHEZ, Appellant
                                        V.
             PRECISION DRILLING COMPANY, LP, Appellee


                   On Appeal from the 151st District Court
                            Harris County, Texas
                      Trial Court Case No. 2015-77477


                         MEMORANDUM OPINION

      Refugio Sanchez was injured on a jobsite while working for independent

contractor Precision Drilling Holdings Company (Holdings). He sued Precision

Drilling Company, LP (Precision), another independent contractor working at the

jobsite, for negligence in failing to ensure a safe work environment. In one issue,
Sanchez challenges the trial court’s rendition of summary judgment in favor of

Precision on both matter-of-law and no-evidence grounds.

      We affirm.

                                    Background

      COG Operating LLC, an exploration and production company, contracted

with Precision to drill several oil and gas wells. As part of the contract, COG

agreed to pay Precision for “mobilization,” which included “move in, rig up, [and]

rig down.”

      COG contracted separately with Holdings to transport oil and gas rigs at its

well sites. Sanchez worked as a “swamper” for Holdings, mainly assisting

Holdings’ truck drivers in moving the rigs.

      On April 30, 2013, Sanchez and fellow Holdings employees Ivan Torres and

Austin Matejowsky were working to transport Precision’s Rig 105 to a COG well

site. As part of this project, the three men were tasked with loading a portable

generator onto a pole truck and moving it to another position at the site.

      Pursuant to Torres’s instructions, Sanchez used chains and rope to secure the

generator to the truck. Once the generator was loaded, Torres got behind the wheel

of the pole truck. Sanchez and Matejowsky remained outside of the truck, and

Matejowsky began flagging Torres to back it up. While he was directing Torres,

Matejowsky radioed Precision’s rig manager, Ricky Menard—the only Precision


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employee involved in the accident—to ask him where they should place the

generator. At that moment, the generator began to swing to the drivers’ side,

causing Torres to lose control of it. In an effort to gain control of the generator,

Sanchez held onto the tag line with two hands and followed it to the rear of the

truck. Matejowsky saw neither the load begin to swing nor Sanchez’s position

behind the truck, and continued flagging Torres to back up. As Sanchez stepped

between the generator and the pole truck, the pole truck ran over his right foot and

leg. Sanchez suffered severe injuries, and as a result, had to have his leg

amputated.

      Sanchez sued Precision for negligence, alleging that it breached its duty to

maintain a safe work environment for the mobilization work he was performing

when he was injured.

      Precision moved for both traditional and no-evidence summary judgment.

The trial court granted Precision’s motion and dismissed Sanchez’s suit.

                               Summary Judgment

A.    Standard of Review

      We review 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). In conducting our review, we take

as true all evidence favorable to the nonmovant, and we indulge every reasonable


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inference and resolve any doubts in the nonmovant’s favor. Valence Operating,

164 S.W.3d at 661; Provident Life, 128 S.W.3d at 215.

      Following an adequate time for discovery, a party may move for summary

judgment on the basis that there is no evidence of one or more essential elements

of a claim on which the adverse party would have the burden of proof at trial. TEX.

R. CIV. P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (per

curiam). To defeat a no-evidence motion, the nonmovant must produce at least a

scintilla of evidence raising a genuine issue of material fact as to the challenged

elements. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45

(Tex. 2017). “More than a scintilla of evidence exists if the evidence ‘rises to a

level that would enable reasonable and fair-minded people to differ in their

conclusions.’” Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 376 (Tex.

App.—Houston [1st Dist.] 2012, pet denied) (quoting Merrell Dow Pharms., Inc.

v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). We consider the evidence in the

light most favorable to the nonmovant and indulge every reasonable inference from

the evidence in the nonmovant’s favor. Lightning Oil, 520 S.W.3d at 45.

      A party moving for traditional summary judgment bears the burden of

proving that no genuine issues of material fact exist on at least one essential

element of the cause of action asserted and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Lightning Oil, 520 S.W.3d at 45. A matter


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is conclusively established if reasonable people could not differ as to the

conclusions to be drawn from the evidence. See City of Keller v. Wilson, 168

S.W.3d 802, 816 (Tex. 2005). If the movant meets its burden, the burden then

shifts to the non-movant to raise a fact issue precluding summary judgment. See

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

      When, as here, the summary judgment order does not specify the grounds on

which it was granted, the appealing party must demonstrate that none of the

proposed grounds are sufficient to support the judgment. West v. SMG, 318 S.W.3d

430, 437 (Tex. App.—Houston [1st Dist.] 2010, no pet.). We will affirm a

summary judgment ruling if any of the grounds asserted in the motion are

meritorious. Lightning Oil, 520 S.W.3d at 45; Beverick v. Koch Power, Inc., 186

S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

B.    Analysis

      In his sole issue on appeal, Sanchez argues that the trial court erred by

granting Precision’s summary-judgment motion on both traditional and no-

evidence grounds. We begin with the no-evidence motion. See Lightning Oil, 520

S.W.3d at 45 (“If a party moves for summary judgment on both traditional and no-

evidence grounds, as the parties did here, we first consider the no-evidence

motion.”).




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      In its no-evidence motion, Precision challenged each of the elements of

Sanchez’s negligence claim, including duty, breach of that duty, and damages

proximately caused by the breach. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794

(Tex. 2006) (per curiam). If the trial court could have properly granted summary

judgment based on a lack of evidence of proximate cause, we must affirm. See Doe

v. Messina, 349 S.W.3d 797, 804 & n.6 (Tex. App.—Houston [14th Dist.] 2011,

pet. denied) (upholding summary judgment based on proximate cause without

reaching question of duty). Accordingly, we consider whether Sanchez produced at

least a scintilla of evidence raising a genuine issue of material fact as to whether

Precision proximately caused his injuries. See Lightning Oil, 520 S.W.3d at 45

(“When a trial court does not specify the grounds it relied upon in making its

determination, reviewing courts must affirm summary judgment if any of the

grounds asserted are meritorious.”).

      The components of proximate cause are cause in fact and foreseeability.

Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, No. 17-0730, — S.W.3d —

2019 WL 2710037, at *8 (Tex. June 28, 2019); Rampersad v. CenterPoint Energy

Houston Elec., LLC, 554 S.W.3d 29, 33 (Tex. App.—Houston [1st Dist.] 2017, no

pet.). “The cause-in-fact element is satisfied by proof that (1) the act was a

substantial factor in bringing about the harm at issue, and (2) absent the act . . . the

harm would not have occurred.” HMC Hotel Props. II Ltd. P’ship v. Keystone-Tex.


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Prop. Holding Corp., 439 S.W.3d 910, 913 (Tex. 2014). Even if a plaintiff’s

injuries would not have occurred in its absence, a defendant’s conduct may be too

attenuated from the resulting injuries to be a substantial factor in bringing about the

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

799 (Tex. 2004). For example, merely furnishing a condition which makes the

injuries possible, see id., or placing a person in a particular place at a particular

time, do not, without more, amount to cause in fact. See Lear Siegler, Inc. v. Perez,

819 S.W.2d 470, 472 (Tex. 1991). Foreseeability means that the actor, as a person

of ordinary intelligence, should have anticipated the dangers that his negligent act

created for others. McKenzie, 2019 WL 2710037, at *9; Travis v. City of Mesquite,

830 S.W.2d 94, 98 (Tex. 1992). “These elements cannot be established by mere

conjecture, guess, or speculation.” HMC Hotel Props., 439 S.W.3d at 913.

      On this record, we begin and end with cause in fact, which asks whether

Precision’s (allegedly) negligent act or omission was “a substantial factor in

bringing about” the injury, without which the harm would not have occurred. See

IHS Cedars Treatment Ctr., 143 S.W.3d at 799. “A substantial factor is one that

reasonable people would regard as a cause in the popular sense of the word, in

which there lurks the idea of responsibility.” Critical Path Res., Inc. v. Cuevas, 561

S.W.3d 523, 545–46 (Tex. App.—Houston [14th Dist.] 2018, pet. filed) (citing

Lear Siegler, 819 S.W.2d at 472)).


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        Relying on the report of his expert, Douglas W. Smith, and Holdings’

Serious Incident Investigation Report, which Smith reviewed in forming his

opinions, Sanchez argues that Menard, Precision’s rig manager, caused his injuries

by distracting Matejowski and thus preventing him from seeing that Sanchez was

behind the pole truck as he continued to direct Torres to back it up.

        Smith’s report identifies nine factors—taken almost verbatim from

Holdings’ Incident Report—that he opines contributed to causing Sanchez’s

injuries.1 One of these factors implicated Precision’s involvement in the generator

move:

           [Matejowsky] was distracted by communicating with [Menard,
           Precision’s rig manager], on where to place the load while flagging
           the pole truck operator.

        Smith’s opinion merely lists all nine factors under the heading “Contributing

Factors.” It does not conclude that Matejowsky’s involvement was a substantial

factor in bringing about Sanchez’s injuries. See IHS Cedars Treatment Ctr., 143

S.W.3d at 799 (test for cause in fact is whether negligent “act or omission was a

substantial factor in bringing about the injuries” and without which harm would

1
        The remaining eight factors include (1) the height of the pole truck compared to
        Sanchez’s height; (2) Sanchez’s failure to attend a pre-job safety meeting; (3) the
        manner in which Sanchez installed the tag line; (4) lack of means for Sanchez to
        contact Torres when the load began to shift; (5) Matejowsky’s failure to observe
        both the load rotate and Sanchez’s position behind the pole truck; (6) Sanchez’s
        placement behind and proximity to the pole truck; (7) Sanchez’s attempt to control
        the load when the pole truck was moving; and (8) Torres’s failure to see that
        Sanchez had moved behind the pole truck.

                                             8
not have occurred). Thus, Smith’s opinion falls short of what is required to

demonstrate cause in fact. See Christus St. Mary Hosp. v. O’Banion, 227 S.W.3d

868, 875 (Tex. App.—Beaumont 2007, pet. denied) (holding that testimony that

event “contributed to” patient’s death and decreased patient’s “likelihood of

surviving” was no evidence of proximate cause); Sisters of St. Joseph of Tex., Inc.

v. Cheek, 61 S.W.3d 32, 36–37 (Tex. App.—Amarillo 2001, pet. denied) (holding

that testimony that negligence “caused or contributed to” patient’s death was no

evidence of proximate cause).

      Likewise, Holdings’ Incident Report provides no evidence that Menard’s

involvement was a substantial factor in causing Sanchez’s injuries. The Report

states that Matejowsky “was distracted by communicating with [Precision’s] rig

manager . . . and did not observe when the load began to swing or when [Sanchez]

got positioned behind the truck.” Nothing in the report indicates that Menard was

the cause of Majowsky’s distraction, and Sanchez has not provided any additional

evidence to that effect. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l

Dev. & Research Corp., 299 S.W.3d 106, 122 (Tex. 2009) (“Causation must be

proved, and conjecture, guess, or speculation will not suffice as that proof.”).

Indeed, the Report indicates that Matejowsky—not Menard—initiated the contact

that Sanchez claims caused Matejowsky to be distracted: “[Matejowsky] asked

[Menard] where to put the generator and at the same time . . . [Matejowsky] was


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flagging [Torres].” Even assuming Menard caused Matejowsky to be distracted,

Sanchez has provided no evidence, given the eight other factors listed in the

Incident Report, that Matejowsky’s distraction was a substantial factor in bringing

about his injuries. We therefore hold that, without more, taking Matejowsky’s call

is no evidence of an act or omission by Menard that was a substantial factor in

bringing about Sanchez’s injury. See IHS Cedars Treatment Ctr., 143 S.W.3d at

798–99.

      We conclude that because Sanchez has provided no evidence that Precision

caused Sanchez’s injuries, the trial court properly granted Precision’s no-evidence

motion for summary judgment. Our conclusion makes it unnecessary to address

whether Sanchez presented evidence of duty or breach.2

      We overrule Sanchez’s sole issue.




2
      Because we hold that Precision is entitled to summary judgment on its no-
      evidence motion, we do not address its traditional motion. See Beverick v. Koch
      Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet.
      denied) (“When a trial court does not state the basis for its decision in its summary
      judgment order, as in this case, we must uphold the order if any of the theories
      advanced in the motion is meritorious.”).

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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Peter Kelly
                                             Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




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