                                      NO. 12-16-00038-CV

                             IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

JUSTINE INGELS,                                        §       APPEAL FROM THE
APPELLANT

V.                                                     §       COUNTY COURT AT LAW NO. 1

DIANE R. EARNEST,
APPELLEE                                               §       DALLAS COUNTY, TEXAS

                                      MEMORANDUM OPINION
        Justine Ingels appeals the trial court’s judgment that she take nothing in her personal
injury lawsuit against Diane R. Earnest. In one issue, Ingels contends that the evidence is
factually insufficient to support the trial court’s judgment. We affirm.


                                               BACKGROUND
        While driving on the freeway, Ingels had to come to a complete stop due to road
construction. Moments later, Earnest drove her vehicle into the rear of Ingels’s vehicle. After
the accident, neither Ingels nor Earnest felt they needed medical attention or police assistance, so
they both drove away and continued on their business.
        A couple of weeks later, Ingels contacted Dr. Wayne Burkhead because she was
experiencing pain in her shoulder.1 Dr. Burkhead saw Ingels several weeks later. He diagnosed
Ingels with a torn rotator cuff and recommended surgery.                   Ingels agreed to the surgery.
However, Ingels’s shoulder continues to cause her pain, and Dr. Burkhead believes that Ingels
will require additional surgeries in the future.




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         Dr. Burkhead previously had performed surgery on Ingels’s shoulder after she had torn her rotator cuff
while moving a potted plant.
        Ingels believed that her shoulder injury was caused by the automobile accident with
Earnest, so she sued Earnest on negligence grounds. The matter proceeded to a jury trial. At
trial, Ingels sought damages for past and future physical pain and mental anguish, medical care,
physical impairment, and disfigurement. Earnest argued that the jury should not award damages
to Ingels unless the jury determined by a preponderance of the evidence that Ingels’s shoulder
injury was caused by her accident with Earnest. The jury declined to award damages to Ingels,
and the trial court signed a judgment in accordance with the jury’s verdict. Ingels filed a motion
for new trial, which was overruled by operation of law. See TEX. R. CIV. P. 329b(c). This appeal
followed.


                                       FACTUAL SUFFICIENCY
        In her sole issue, Ingels argues that the evidence is factually insufficient to support the
jury’s findings that Ingels suffered zero dollars in damages for past and future physical pain and
mental anguish, medical care, physical impairment, and disfigurement. She contends that, in
response to the impact, her shoulder was injured when she reached out to restrain her dog. That
injury, she asserts, led to surgery.
Standard of Review
        When a party attacks the factual sufficiency of an adverse finding on an issue on which it
has the burden of proof, it must establish that the adverse finding is against the great weight and
preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In
making that determination, we consider and weigh all the evidence, not just the evidence that
supports the verdict.     Id.   We can set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986).
        When reviewing factual sufficiency issues, we are mindful that the factfinder is the sole
judge of the credibility of the witnesses. See Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 557
(Tex. App.—Tyler 2007, pet. denied) (op. on reh’g). Accordingly, we may not pass on the
witnesses’ credibility or substitute our judgment for that of the jury. See Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). A jury can disregard evidence, but cannot
take evidence out of context. City of Keller v. Wilson, 168 S.W.3d 802, 812 (Tex. 2005) (if




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witness testifies, “I did not do that,” jury can disregard whole statement but cannot rewrite by
disregarding just the middle word).
       The burden of proof may be satisfied by direct or circumstantial evidence. See Havner v.
E–Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex. 1992). But the plaintiff's evidence must be
more than “mere conjecture, guess, or speculation.” Doe v. Boys Clubs of Greater Dallas, Inc.,
907 S.W.2d 472, 477 (Tex. 1995). Where circumstances give rise to more than one inference,
none more probable than the other, those circumstances are the equivalent of no evidence.
Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003) (per curiam).
Applicable Law
       To establish negligence, the plaintiff must produce evidence that the defendant owed the
plaintiff a legal duty, that duty was breached, and the breach proximately caused the plaintiff's
damages. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). Proximate
cause is comprised of cause in fact and foreseeability. Excel Corp. v. Apodaca, 81 S.W.3d 817,
820 (Tex. 2002).
       Cause in fact requires the act or omission to be a substantial factor in causing the injury
“without which the harm would not have occurred.”           Doe, 907 S.W.2d at 477.        To be a
substantial factor, the act or omission must have “such an effect in producing the harm as to lead
reasonable men to regard it as a cause, using that word in the popular sense, in which there
always lurks the idea of responsibility,” instead of simply the “so-called ‘philosophic sense,’
which includes every one of the great number of events without which any happening would not
have occurred.” Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995) (quoting
RESTATEMENT (SECOND) OF TORTS § 431 cmt. a (1965)).
       Foreseeability requires that the negligent actor anticipated, or should have anticipated, the
danger his or her negligence creates. See Excel Corp., 81 S.W.3d at 820. The exact injury need
not be foreseen, but instead, foreseeability is satisfied when the injury is of a general character
that could reasonably be anticipated. See Lee Lewis Constr., Inc., 70 S.W.3d at 785.
Analysis

       The only injury that Ingels contended she sustained in the accident was the injury to her
right shoulder. Ingels testified that the accident happened when she made a sudden stop because
the person in front of her had stopped suddenly. She did not see Earnest’s vehicle before the
impact, but once she felt the impact, she extended her arm over and stopped her dog from hitting



                                                 3
the dashboard. Ingels testified that her dog was a Shih Tzu and terrier mix, but she provided no
other information regarding the size of her dog or the nature of the impact between her dog and
her arm.
        After the impact, Ingels did not believe that she needed medical attention. She claimed
that she did not feel “actual severe pain” in the shoulder until a couple of days after the accident.
She further contended that her shoulder was stiff and sore before it turned into actual pain.
However, Ingels did not contact Dr. Burkhead’s office until about two weeks after the accident,
and she did not see a doctor until her visit with Dr. Burkhead approximately six weeks after the
accident.
        Additionally, Ingels did not contact the police. Instead, she drove her vehicle away from
the accident scene and continued with her business. She presented no evidence regarding the
damage sustained by her vehicle in the accident or any other evidence indicating the severity of
the impact. Dr. Burkhead likewise had no history from Ingels providing information regarding
the intensity of the collision.
        Ingels’s ex-husband testified that he was around Ingels shortly after the accident, and he
witnessed her experience shoulder pain. His testimony was not clear as to how soon after the
accident he saw Ingels. Earnest also testified, but she had no evidence regarding Ingels’s
shoulder injuries or the cause of those injuries.
        Both Ingels and Dr. Burkhead contended that Ingels’s act of reaching to stop her dog
from impacting the dashboard caused the tear of Ingels’s rotator cuff. Dr. Burkhead testified that
he saw objective evidence that Ingels sustained a recent tear to her rotator cuff that was more
likely from trauma rather than from a degenerative condition. Based on that objective evidence,
and because of the history that Ingels related regarding the automobile accident, Dr. Burkhead
opined that the accident caused her shoulder injury. Dr. Burkhead admitted that he had no
knowledge of Ingels’s activities between the accident and the first time that he saw her
postaccident approximately six weeks later.
        Ingels contends that the facts of her case mirror Schmeltekopf v. Johnson Well Service
of Luling, 810 S.W.2d 865 (Tex. App.—Austin 1991, no writ). We disagree. In Schmeltekopf,
the plaintiff drove her vehicle into the defendant’s trailer that had been negligently stopped in the
roadway one evening. Id. at 866. The impact was such that the trailer rotated almost ninety
degrees. The plaintiff did not believe that she was injured at the scene of the accident, but by the



                                                    4
next morning, the plaintiff was in pain to the extent that she sought and received medical
attention. Id. at 867. She received more medical attention four days after the accident, and she
was in such pain that she was hospitalized eleven days after the accident. Id. Based on those
facts, the Austin court of appeals determined that the evidence was uncontroverted that the
accident caused the plaintiff some injury and pain, and thus, held that the evidence was factually
insufficient to support the jury’s findings that the plaintiff had sustained zero dollars of damages.
Id. at 870.
         Ingels did not present the same level of evidence regarding the causation of her injuries
that was presented by the plaintiff in Schmeltekopf. See id. at 867. Earnest simply contended to
the jury that Ingels failed to satisfy her burden of proof. The jury agreed. After a review of all
of the evidence, we hold that the jury’s determination is not so contrary to the overwhelming
weight of the evidence that the verdict is clearly wrong and unjust. See Cain, 709 S.W.2d at
176. To the contrary, the jury reasonably could have disbelieved Ingels’s testimony that she
reached out after the impact, but was able to still get her arm in front of her dog before it hit the
dashboard. Once that evidence is disregarded, Ingels’s proof that her shoulder injury was caused
by the accident is not so strong that we can substitute our judgment for that of the jury. See
Golden Eagle Archery, 116 S.W.3d at 761. The jury could have determined that the evidence
did not justify the conclusion that Ingles’s injury was the probable result of the car accident.
Doe, 907 S.W.2d at 477. We therefore overrule Ingels’s sole issue.


                                                   DISPOSITION

         Having overruled Ingels’s sole issue, we affirm the judgment of the trial court.

                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered August 10, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           AUGUST 10, 2016


                                         NO. 12-16-00038-CV


                                         JUSTINE INGELS,
                                             Appellant
                                                V.
                                        DIANE R. EARNEST,
                                             Appellee


                            Appeal from the County Court at Law No 1
                       of Dallas County, Texas (Tr.Ct.No. CC-13-05584-A)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, JUSTINE INGELS, for which execution may issue, and that this decision
be certified to the court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
