                             Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-14-00124-CV

                               WESTFREIGHT SYSTEMS, INC.,
                                  Appellant/Cross-Appellee

                                          v.
                                         John
 John Michael HEUSTON, Individually and as Dependent Administrator of the Estate of Juana
                 Garza, Deceased, and Geronimo Rodriguez, Individually,
                              Appellees/Cross-Appellants

                   From the 79th Judicial District Court, Jim Wells County, Texas
                                 Trial Court No. 12-03-50966-CV
                          Honorable Richard C. Terrell, Judge Presiding

Opinion by:      Rebeca C. Martinez, Justice

Sitting:         Karen Angelini, Justice
                 Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice

Delivered and Filed: June 17, 2015

AFFIRMED

           Westfreight Systems, Inc. appeals a judgment awarding damages to the heirs of Juana

Garza, who died after colliding with an 18-wheel tractor-trailer. Westfreight contends the evidence

is legally insufficient to support proximate causation. Cross-appellants maintain the evidence is

factually insufficient to support the jury’s attribution of twenty percent of the responsibility for the

accident to Garza. We affirm the judgment of the trial court.
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                                                    BACKGROUND

           On the evening of February 20, 2012, Westfreight truck driver Jeffrey Bailey, who was

accompanied by Wayne Johnston, delivered equipment to National Oilwell Varco L.P. on

Highway 281 North in Alice, Texas. Two driveways connect National’s yard to Highway 281.

One is marked as an entrance, and the other is marked as an exit. Because they were making an

after-hours delivery, Bailey and Johnston called National to make sure the gate would be open for

them. National employee Xavier Ramirez met Bailey and Johnston at the entrance gate to unlock

it. Bailey pulled the truck in and Ramirez unloaded the equipment with a forklift. As the truck

prepared to leave, Ramirez did not unlock the exit gate, although he testified that he offered to do

so. Bailey and Johnston testified that Ramirez never offered to open the exit gate. 1 In any event,

Bailey chose to back the truck out onto Highway 281 through the entrance gate. Johnston spotted

Bailey as he reversed, standing three feet behind the trailer, on the driver’s side, as the rig moved

backward.         Johnston was eventually standing on the double yellow line that separated the

northbound lanes of Highway 281 from the center turn lane. When the backing was complete,

Bailey moved the rig forward very slowly as Johnston walked to the cab. After Johnston entered

the cab, Ramirez stopped them to ask a question about billing paperwork; Johnston testified the

conversation only took a couple of seconds.

           Bailey then drove the rig forward about 75-111 feet. The truck was still diagonally

straddling both northbound lanes, with the rear end of the trailer across the left lane and the rig in

the right lane, when Garza’s minivan struck the trailer from behind. The left front of the minivan

struck the right rear of the trailer. Garza suffered severe injuries, including a partially torn aorta,

and died ten to fifteen minutes after the collision.



1
    As the driver of the truck, Bailey acknowledged that it was his obligation to ask Ramirez to open the gate.

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           The accident occurred on a clear night, at approximately 7:42 p.m. The road approaching

south of the accident site “is a straight level road.” About 800 feet south of the accident site, the

speed limit increases from 60 miles per hour to 70 miles per hour. Johnston estimated that he

could see a mile down Highway 281 as he was spotting the rig’s exit from National’s yard. An

investigating officer testified that there was nothing obstructing or blocking Garza’s vision as she

approached the 18-wheeler. Only a small hill about one-half mile south of the accident site

changes the road’s elevation. Assuming the small hill affected Garza’s view of the rig, she still

would have traveled one-half mile, or approximately 25-30 seconds at the speed limit, with the

rig’s lights visible to her before reaching the rig. There was no evidence that Garza was speeding

or using her cellphone. She was most likely traveling 40-52 miles per hour at the moment of

impact; the truck was traveling 5-10 miles per hour. The minivan left no skid marks.

           Garza’s sons, John Michael Heuston, individually and as dependent administrator of her

estate, and Geronimo Rodriguez, brought wrongful death and survival claims against Westfreight,

Bailey, and National. At the close of plaintiffs’ case-in-chief, the trial court granted National’s

motion for directed verdict. The jury found Westfreight 2 and Garza were both negligent, and that

the negligence of both proximately caused the accident.                       The jury apportioned 80 percent

responsibility to Westfreight and 20 percent to Garza. The jury found that Heuston sustained

$900,000 in damages, that Rodriguez sustained $400,000 in damages, and that Garza’s estate

sustained $850,000 in damages.

           Plaintiffs moved to disregard the jury’s negligence finding against Garza and, alternatively,

for a new trial. Westfreight moved for judgment notwithstanding the verdict on the entire case

and, alternatively, on portions of the damage findings. The trial court denied the post-trial motions.



2
    The jury was instructed that the negligence, if any, of Bailey and Johnston was attributable to Westfreight.

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The trial court rendered judgment on the verdict by reducing the jury’s damage findings to account

for the jury’s attribution of 20 percent responsibility to Garza. After adding prejudgment interest,

Heuston was awarded $752,347.36, Rodriguez was awarded $334,372.96, and Garza’s estate was

awarded $741,106.40.

       Westfreight timely appealed, and now contends that the evidence is legally insufficient to

support proximate causation. Heuston also filed a notice of cross-appeal, and maintains that the

jury’s apportionment of responsibility is not supported by factually sufficient evidence.

                                     STANDARDS OF REVIEW

       In reviewing the record for legally sufficient evidence, we must view the evidence “in the

light most favorable to the verdict, and indulge every reasonable inference that would support it.”

City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The evidence is legally sufficient if

“more than a scintilla of evidence exists.” Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928

(Tex. 1993); Cumpian v. Pan Am. Express, Inc., 147 S.W.3d 515, 516-17 (Tex. App.—San

Antonio 2004, no pet.). “More than a scintilla of evidence exists if the evidence furnishes some

reasonable basis for differing conclusions by reasonable minds about a vital fact’s existence.”

Cumpian, 147 S.W.3d at 517. “The final test for legal sufficiency must always be whether the

evidence at trial would enable reasonable and fair-minded people to reach the verdict under

review.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 770 (Tex. 2010) (quoting City of

Keller, 168 S.W.3d at 827).

       In reviewing a factual sufficiency challenge, we “must consider and weigh all the evidence,

and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence

as to be clearly wrong and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).




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                                             DISCUSSION

                                            Main Appeal

        “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.” IHS Cedars Treatment Ctr. of DeSoto,

Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004) (citation omitted). On appeal, Westfreight

only challenges the proximate cause element.            Proximate cause requires cause-in-fact and

foreseeability. Id. As with the other elements of a negligence claim, proximate causation must be

supported by evidence that goes beyond mere conjecture, guess, or speculation. Id. at 798-99.

“But a plaintiff is not required to exclude the possibility that the event that caused damage was

brought about by some factor other than the defendant’s conduct, as long as the plaintiff shows

that it is more probable than not that the defendant’s conduct was a cause of the injury.” Cowboys

Concert Hall-Arlington, Inc. v. Jones, No. 02-12-00518-CV, 2014 WL 1713472, at *7 (Tex.

App.—Fort Worth May 1, 2014, pet. denied) (mem. op.) (citing 1 J. Hadley Edgar, Jr. et al., TEXAS

TORTS & REMEDIES § 1.04[2][a] (2013)); see also El Chico Corp. v. Poole, 732 S.W.2d 306, 313

(Tex. 1987) (noting that in proving cause-in-fact, plaintiff need not “exclude all possibility that the

accident occurred other than how he alleges, but instead must only prove the greater probability is

that the defendant’s conduct was a cause of the accident”).

        Cause-in-fact includes a “but-for” element and a “substantial-factor” element: Cause-in-

fact is present if the defendant’s negligence was a substantial factor in bringing about the plaintiff’s

injury, without which the harm would not have occurred. See Rodriguez-Escobar v. Goss, 392

S.W.3d 109, 113 (Tex. 2013). Cause-in-fact is not established where the actor’s negligence does

no more than furnish a condition which makes the injuries possible. IHS Cedars, 143 S.W.3d at

799. In other words, the actor’s conduct may be too attenuated from the resulting injuries to the

plaintiff to be a substantial factor in bringing about the harm. Id. A defendant’s conduct is
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considered a substantial factor in causing the event if the conduct had such an effect in producing

the harm as to lead reasonable people to regard it as a cause. Lear Siegler, Inc. v. Perez, 819

S.W.2d 470, 472 (Tex. 1991) (internal citation omitted).

         Westfreight essentially argues that its negligence was not a cause-in-fact of the collision

because the danger caused by “blindside backing” 3 the 18-wheeler onto Highway 281 had “come

to rest” before Garza rear-ended the trailer. To wit, the collision occurred when the rig was moving

forward. Westfreight asserts its negligence furnished, at most, a condition that made the collision

possible. Westfreight argues:

         The process of backing the rig onto the roadway did not itself cause the collision
         because that process had already ended. The effect of that process was to put the
         rig in a position where it was temporarily occupying two northbound lanes while
         the rig slowly moved forward. . . . The decision to back the rig out of National’s
         yard therefore provided nothing more than a condition that was necessary for the
         accident to occur.

Westfreight relies on Bell v. Campbell, 434 S.W.2d 117 (Tex. 1968), in support of its argument

that its negligence was not a cause-in-fact of the collision. In Bell, a vehicle pulling a trailer on a

highway rear-ended another vehicle. Id. at 119. In the accident, the trailer broke off and came to

rest on the highway. Id. People stopped to help move the trailer off the highway. Id. As they

were doing so, another vehicle struck three of the people, killing two of them. Id. at 118-19. The

people struck in the second accident sued the drivers in the first accident. Id. at 118. Because the

vehicles and unhooked trailer had come to rest before a passing car struck the people helping to

move the trailer out of the roadway, the supreme court determined the defendants’ negligence was




3
  Bailey described the process he used to maneuver the truck that evening as “blindside backing” because the only
things he could see as he reversed the rig onto the highway was the side of the trailer in his right-hand mirror and his
spotter in his left-hand mirror. Plaintiffs’ expert David Stopper testified that when blindside backing, “there’s a point
in time where you just don’t see anything behind you.”

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not a proximate cause because the forces generated by their negligence had come to rest when the

plaintiffs’ injuries occurred. Id. at 122.

        Here, however, the “forces” generated by Westfreight’s negligence had not come to rest

before the collision occurred. The potential danger created by Westfreight’s negligence in backing

the truck onto Highway 281 remained active in the form of diagonally blocking both northbound

lanes of travel even after the rig began to travel forward. At trial, Bailey testified that at the time

of the collision, his tractor, or rig, was on the shoulder and he was merging into the nearest right-

hand lane, but he was not sure where his trailer was. He conceded that the trailer could have been

in the left-hand lane. Garza’s expert, James Lock, testified that the truck was at an angle across

both northbound lanes of travel at the time of impact. Lock believed that Garza’s minivan began

approaching as soon as the spotter left his post and that the impact occurred as the rig began moving

forward and the trailer crossed the center line between the two lanes and got half into the right lane

and half into the left lane. Garza was traveling in the right lane, and the truck moved from the left

lane into her lane of travel. Lock stated that this was not a “rear-end” collision, but rather, an

“angle” collision because the rear-end was never in Garza’s lane until right at the moment of

impact. Plaintiffs’ expert David Stopper performed the backing-up maneuver as described by

Bailey and Johnston and concluded that it took one minute and 13 seconds to back the truck onto

the highway and have the spotter enter the cab. In contrast, pulling out cab-first and turning right

would take approximately 11 seconds.

        The El Paso Court of Appeals examined a similar scenario in Homeland Exp., L.L.C. v.

Seale, 420 S.W.3d 145 (Tex. App.—El Paso 2012, no pet.). There, the driver of an 18-wheel

tractor-trailer elected to stop his vehicle on the shoulder of Interstate 10 on a dark morning to

investigate why the “check engine” light had illuminated. Id. at 147. Although the driver

attempted to park on the shoulder, a portion of the trailer remained protruding in the right-hand
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lane of travel on the highway. Id. The driver did not place reflective warning devices behind the

rig. Id. Ten to fifteen minutes later, the driver of a van clipped the left rear of the 18-wheeler with

his right-front bumper, severely injuring a passenger. Id. at 147-48. At trial, the plaintiff’s

accident reconstruction expert testified that, regardless of why the van’s driver drove onto the

shoulder—whether as a result of having evaded a collision with a pick-up truck that suddenly cut

in front of him or having fallen asleep, as alleged by the defendants—the accident would not have

occurred had the driver of the 18-wheeler not parked where he had. Id. at 148. The jury determined

that the driver of the 18-wheeler was negligent and attributed 70 percent of the responsibility for

the accident to him. Id. On appeal, the defendants challenged the sufficiency of the evidence to

support proximate causation. Id. The defendants specifically argued, as Westfreight does here,

that the 18-wheeler’s driver’s acts and omissions did “no more than furnish a condition that made

the accident possible.” Id. at 150. The defendants similarly relied on Bell in support of their

causation argument. Id. at 150-51. The El Paso court rejected the defendants’ argument and held

that the dangerous situation caused by the parking of the 18-wheeler “never abated” and that “the

forces generated by [the driver of the 18-wheeler’s] conduct had not ‘come to rest’” at the time of

the collision. 4 Id. at 151.

         We, too, hold that, based on the evidence presented at trial, the jury could have reasonably

concluded that Westfreight’s initial negligence in backing the truck at an angle across the highway

continued to pose a danger to approaching motorists even after the rig began to move forward. See

id. at 149-51. The jury could have further determined that the placement of the truck in both




4
 Westfreight argues that Homeland is not applicable because the driver of the van in that case was able to relate events
occurring immediately before the accident. It appears, however, that the driver’s observations in that case were
disputed. See Homeland, 420 S.W.3d at 148. Moreover, Westfreight fails to cite any authority standing for the
proposition that in vehicular accidents, there can be no recovery where the deceased driver does not testify as to what
she observed prior to the accident.

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northbound lanes of travel and the shoulder was a substantial factor in causing the collision and

that the collision would not have occurred had Bailey and Johnston not backed the truck onto the

darkened highway. Moreover, the jury could have reasonably determined that Bailey should have

anticipated that backing an 18-wheeler onto a darkened highway involves an extreme degree of

risk that another vehicle might approach. See Ryder Integrated Logistics, Inc. v. Fayette County,

453 S.W.3d 922, 929 (Tex. 2015) (proximate causation consists of cause in fact as well as

foreseeability); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995)

(foreseeability “requires that a person of ordinary intelligence should have anticipated the danger

created by a negligent act or omission”). Westfreight’s company policy prohibits backing out onto

a darkened highway at night. Additionally, experts on both sides agreed that backing out from an

entrance driveway is negligent where an exit driveway allowing a truck to pull out rig-forward is

also available. In fact, by using a spotter to watch for approaching vehicles, Bailey and Johnston

acknowledged the likelihood that a driver such as Garza would approach from the rear.

Accordingly, we hold that the evidence is legally sufficient to support the jury’s negligence finding

as to both cause-in-fact and foreseeability.

       We note that evidence was also presented at trial indicating that the rig, which was located

in the right lane at the time of impact, was not sufficiently visible to Garza. Although the

Westfreight truck was equipped with more lights than were required by federal regulation, and all

lights were functioning and illuminated at the time of the collision, testimony was presented that

the use of retroreflective tape is also required to enhance visibility. Testimony was presented that

the truck’s retroreflective tape had not been sufficiently maintained and was corroded due to dirt,

snow, and salt, causing it to be less reflective. Additionally, the trailer, which was positioned

diagonally across both northbound lanes, would have been difficult to see from Garza’s rear

approach because safety tape is less reflective when viewed from an angle. Westfreight challenges
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the evidence regarding the visibility of the retroreflective tape as conclusory and speculative. We

need not decide, however, whether the jury properly considered this evidence, because we have

already concluded that the backing of the rig and the protracted diagonal position of the trailer

across both northbound lanes at night was a substantial factor in bringing about the collision and

Garza’s death. In sum, after reviewing the evidence in the light most favorable to the finding, we

conclude the evidence presented at trial furnished a reasonable basis for the jury to conclude that

Westfreight’s negligence proximately caused the collision. See City of Keller, 168 S.W.3d at 822;

Cumpian, 147 S.W.3d at 517. Therefore, the record contains more than a scintilla of evidence in

support of the jury’s finding on negligence. See Cumpian, 147 S.W.3d at 517. Accordingly,

Westfreight’s sole issue on appeal is overruled.

                                                   Cross-Appeal

         By way of cross-appeal, Garza complains that the jury’s apportionment of responsibility is

not supported by factually sufficient evidence. Garza makes no argument to explain why the

evidence of apportionment is factually insufficient, other than to claim that both sides challenged

the apportionment in post-trial motions. 5 Our own review of the record, however, leads us to

conclude that the evidence is factually sufficient to support the jury’s negligence finding and

apportionment against Garza. The evidence at trial showed that the collision occurred on a clear

night. Garza was traveling on a flat and straight road for at least 25-30 seconds as she approached

the rig. There was testimony that there was nothing obstructing or blocking Garza’s vision as she

approached. Ramirez, the only witness to observe the accident, testified that the minivan was

coming fast; he assumed 60-70 miles per hour. He could not believe that the minivan hit the truck,

and stated that there was plenty of room for the minivan to pass on the left by using the turn lane


5
 But, as Westfreight points out in its reply/cross-appellee’s brief, the parties’ challenges were different. Westfreight
never raised a factual sufficiency point in post-trial motions and never requested a new trial.

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and two southbound lanes. Ramirez did not hear the screeching of tires breaking, and the minivan

left no skid marks. Given this testimony, we cannot conclude that the jury’s apportionment of

twenty percent of the responsibility to Garza was so contrary to the overwhelming weight of the

evidence as to be clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176. We,

therefore, overrule Garza’s sole issue on cross-appeal.

                                          CONCLUSION

       We affirm the trial court’s judgment.

                                                  Rebeca C. Martinez, Justice




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