

COURT OF APPEALS
EIGHTH DISTRICT OF
TEXAS
EL PASO, TEXAS
 
 



RUBEN VASQUEZ,
 
                            Appellant,
 
v.
 
SOUTHERN TIRE MART, LLC,
 
                           
  Appellee.


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 § 
 


 
No. 08-12-00091-CV
 
Appeal from the
 
143rd
  Judicial District Court 
 
of Ward
  County, Texas 
 
(TC#12-02-22755-CVW)
 



 
 
O
P I N I O N
            Appellant
Ruben Vasquez (“Vasquez”) appeals the trial court’s grant of a no-evidence
summary judgment in favor of Southern Tire Mart, LLC (“Southern Tire”),
asserting that more than a scintilla of evidence exists raising a genuine issue
of material fact supporting his claims.  We
affirm.
BACKGROUND
            On
June 11, 2010, Vasquez was involved in a single vehicle accident in Ward
County, Texas.  At the time of the
accident, he was acting within the course and scope of his employment with
Republic Services, Inc., d/b/a Duncan Disposal (“Republic”), driving a garbage truck.  Vasquez alleged that, while operating the
vehicle, the front passenger tire blew out and the brakes were no longer
operating.  As a result, the truck
crossed the right shoulder and both lanes of the service road, climbed the
embankment and eventually came to rest on the main railroad track.  Vasquez injured his neck, lower back, left
shoulder, right arm and head, and suffered a disc protrusion.  Vasquez claims that the tire had been
retreaded and that the tread separated, causing the accident, and that the tire
was supplied to Republic by Southern Tire. 
Vasquez filed suit alleging negligence on the part of Southern Tire and
Republic contending that a defective tire, sold and installed on the vehicle by
Southern Tire, blew out and caused the crash. 
Vasquez alleged that Southern Tire installed a retread tire on the
vehicle in spite of an admonition made by Republic not to install retread
tires, and that a vehicle with a retread tire was not capable of ordinary
use.  Vasquez further alleged that “[a]t the time and on the occasion in
question, Defendant was negligent of various acts and omissions, which
negligence was the proximate cause of the occurrence in question.”
            Southern Tire filed a no-evidence summary judgment motion,
following which Vasquez filed an
amended petition, alleging a per se
violation of the Federal Motor Carrier Safety Regulations, 49 C.F.R. § 393.75
(2005).  Vasquez filed a response to the summary judgment
motion, attaching three affidavits.  The
first affidavit was his own and Vasquez repeated the information in his amended petition, although he included photographs
of the truck and tire taken after the accident. 
Vasquez’s affidavit
stated that after the accident, he was advised by Republic’s area manager that Southern
Tire installed a retread tire on the vehicle despite being told not to use retreads
because they were unsafe.  Vasquez asserted in his summary judgment response
that Republic’s statement is admissible as a statement by a party opponent
under Texas Rule of Evidence 801(e)(2).  Vasquez’s affidavit also included a statement that
“[r]e-tread tires are not safe for trucks as large as the one I was operating
or for loads that heavy as are found in the Federal Motor Carrier Safety
regulations.”  In his response to the motion
for summary judgment, Vasquez
argued that Southern Tire breached its duty to him to install new tires rather
than retread tires.  The second and third
affidavits concerned Vasquez’s
injuries.  No additional evidence was
attached.  The trial court asked that the
parties provide letter briefs and only Southern Tire did so.
            The trial court
conducted a hearing.  However, no record
of the hearing was filed with this court. 
Ultimately, the trial court granted Southern Tire’s summary judgment
motion and severed the cause of action against Republic, thereby rendering a
final judgment in favor of Southern Tire. 
Vasquez timely appealed.
DISCUSSION
            Vasquez’s
sole issue is that the trial court erred in granting the no-evidence summary
judgment motion and that there is more than a scintilla of evidence raising a
genuine issue of material fact to support his claim of negligence.
            We review a
trial court’s summary judgment de novo.  Mann Frankfort Stein & Lipp Advisors,
Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).  When a summary judgment fails to specify the
grounds that the trial court relied upon for its ruling, we may affirm the
judgment if any of the grounds advanced is meritorious.  Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Trinh v. Campero, 372 S.W.3d 741, 743 (Tex.App.--El Paso 2012, no
pet.).
When conducting a de novo review of a no-evidence summary
judgment, we must determine whether the non-movant produced summary judgment
evidence raising a genuine issue of fact as to the essential elements attacked
in the no-evidence motion.  Johnson v. Brewer & Pritchard, P.C.,
73 S.W.3d 193, 206-08 (Tex. 2002).  We review
the evidence presented in the light most favorable to the non-movant, crediting
evidence favorable to the non-movant if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not.  Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).  When the nonmovant presents more than a
scintilla of probative evidence that raises a genuine issue of material fact, a
no-evidence summary judgment is improper.  Smith v.
O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).  Summary-judgment evidence raises a genuine
issue of fact if reasonable and fair-minded jurors could differ in their
conclusions in light of all of the summary-judgment evidence.  Goodyear
Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
A cause of action
for negligence has three elements:  (1) a
legal duty; (2) a breach of that duty; and (3) damages proximately resulting
from the breach.  Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998); Salazar v. Ramos, 361 S.W.3d 739, 747
(Tex.App.--El Paso 2012, pet. denied).  Whether
the duty exists under a given set of circumstances is a question of law for the
court.  Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
 No legal liability arises if no duty
exists.  Strunk v. Belt Line Road Realty Co., 225 S.W.3d 91, 99 (Tex.App.--El
Paso 2005, no pet.).
In his affidavit,
Vasquez stated that on the Monday following the accident, he was told by Steve
Todd, the area manager for Republic, that the tire blew out because it was a
retread and that Republic had instructed Southern Tire not to use retread
tires.  Vasquez further testified that
the retread tire was unsafe for trucks as large as the one he was driving, in
violation of the Federal Motor Carrier Safety Administration (“FMCSA”)
regulations.[1]
Vasquez first
asserts that the relevant statutory provisions support his claim.  The parties both argue over the definition
and application of the terms “retreaded” and “regrooved” in their briefs, a
distinction that Southern Tire brought up in its letter brief following the summary
judgment hearing.  Vasquez argues that
the terms “retreaded” and “regrooved” are “treated the same for the purposes of
this hearing . . . .”
The FMCSA
regulations relating to “Parts and Accessories Necessary for Safe Operation” are
found at 49 C.F.R. § 393 et seq, with
tires specifically discussed in 49 C.F.R. § 393.75.  A review of 49 C.F.R. § 393.75 does not
restrict the use of retreaded tires, save on the front wheels of a bus.  See 49
C.F.R. § 393.75(e).  This is further
supported in guidance from the FMCSA regarding the interpretation of 49 C.F.R. §
393.75.  See
http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.aspx?reg=393.75
(last visited September 26, 2012).  The
FMCSA, in answering a question regarding the transportation of hazardous
materials by a vehicle with retreaded tires, states “[T]he only Commercial
Motor Carrier (CMV) that may not utilize retreaded tires is a bus, and then
only on its front wheels.”  See http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.aspx?reg=393.75&guidence=Y.  There is a restriction on using regrooved
tires on the front wheels of a truck if the vehicle in question has a
load-carrying capacity of 4,920 pounds or more. 
See 49 C.F.R. § 393.75(c).  However, no evidence appears indicating that
the tires were regrooved or that the garbage truck had a load-carrying capacity
which would have made it subject to this regulation.
Based on the plain
language of the regulation and its intended interpretation as provided by the
FMCSA, it is clear that the restriction on retreaded tires set forth in the
regulations would not apply to a garbage truck, particularly in light of the
fact that the only allegation was that the tires were retreaded.  Vasquez produced no evidence establishing a
duty under this federal regulation, or establishing that the tires on the truck
were regrooved.  Vasquez’s response to
the summary judgment motion failed to raise a scintilla of evidence in support
of his claim.  There is no genuine issue
of material fact in relation to any alleged violation of 49 C.F.R. § 393.75 to
suggest that a per se violation
occurred.  Compare Strunk, 225 S.W.3d at 101 (finding scintilla of evidence as
to issue of fact where expert report explained violation, and building codes
were attached to summary judgment affidavit).
Vasquez’s next
argument is that as a result of the admission by a party-opponent, there exists
more than a scintilla of evidence of both duty and breach.  He contends that the admission of a
party-opponent is not hearsay, as set out in Tex.R.Evid.
801(e)(2), specifically under subsection (D), which provides:  “[a] statement is not hearsay if . . . [t]he
statement is offered against a party and is . . . a statement by the party's
agent or servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship . . . .”  Tex.R.Evid.
801(e)(2)(D).  Vasquez argues that the
statement of an area manager for Republic is admissible and is evidence that
Southern Tire breached a duty it owed to Vasquez to install new tires, rather
than retreads.
Southern Tire
argues that the statement is first inadmissible hearsay, and second, that even
if it is admissible, Vasquez provided no proof to establish the existence of an
agreement or employment relationship between Republic and Southern Tire.
The evidence
offered in support of a motion for summary judgment must be admissible. Tex.R.Civ.P. 166a(f).  However, “[d]efects in the form of affidavits
or attachments will not be grounds for reversal unless specifically pointed out
by objection by an opposing party with opportunity, but refusal, to
amend.”  Id.  Evidence that contains
hearsay is defective as to form and defects in form must be raised in the trial
court, the opposing party must be given an opportunity to amend, and the trial
court must rule upon the objection or the objection is waived.  S &
I Mgmt., Inc. v. Choi, 331 S.W.3d 849, 855 (Tex.App.--Dallas 2011, no
pet.).  The record does not reflect that Southern
Tire objected to the statement as hearsay, and there is nothing in the record
before us indicating that a written ruling was obtained regarding the
hearsay.  Therefore, Southern Tire may not
raise this argument for the first time on appeal.
However,
substantive defects may be raised for the first time on appeal, and have been
held to include defects that leave the evidence legally insufficient or that
include affidavits containing nothing more than legal or factual
conclusions.  Rockwall Commons Associates, Ltd. v. MRC Mortg. Grantor Trust I,
331 S.W.3d 500, 507 (Tex.App.--El Paso 2010, no pet.), citing Stewart v. Sanmina Tex., L.P., 156 S.W.3d 198, 207 (Tex.App.--Dallas
2005, no pet.).
Southern Tire
argues that even if the statement were admissible, it would not establish a
duty of care for a tort claim, implying that such a statement would give rise
to a breach of contract claim.  Southern
Tire cites Southwestern Bell Telephone
Co. v. DeLanney, 809 S.W.2d 493 (Tex. 1991) in support of its position that
tort obligations are generally imposed by law and are distinct from a party’s
promises or intent.  While this may be
true, DeLanney does not support the
limited interpretation proposed by Southern Tire as to the statement made by
the area manager.  The DeLanney court, citing previous Texas
Supreme Court decisions,[2]
recognized that there are circumstances where a defendant’s conduct might give
rise to tort liability independent of the fact that a contract existed between
the parties.  DeLanney, 809 S.W.2d at 494. 
In fact, the principle recognized in DeLanney
is that “[t]he acts of a party may breach duties in tort or contract alone or
simultaneously in both.”  DeLanney, 809 S.W.2d at 495, citing Jim Walter Homes, Inc. v. Reed,
711 S.W.2d 617, 618 (Tex. 1986).  We do
not find Southern Tire’s limited view of DeLanney
compelling.
However, even
assuming that the statement in the affidavit would otherwise be admissible
under a hearsay exception, the statement does not establish the requisite duty
of care.  Southern Tire’s duty was to act
as a reasonably prudent person would act under the same or similar
circumstances regarding any reasonably foreseeable risk.  Colvin
v. Red Steel Co., 682 S.W.2d 243, 245 (Tex. 1984).  There is no duty to Vasquez in such a statement;
only a duty to Republic.
There is no
evidence of actual or alleged negligence in the installation of the tire; no
evidence that Southern Tire knew of any damage or condition of the tire which
would make it unsuitable or dangerous to use; no evidence that Southern Tire
knew the tire was inappropriate or not capable of “ordinary use” on a garbage
truck; no evidence that Southern Tire knew the tire was retreaded; and indeed,
no evidence that Southern Tire actually even sold and/or installed the tire.  In essence, there is no evidence of a duty.  The only evidence is that Southern Tire installed
a retread tire when it was allegedly told not to do so.  Vasquez did not introduce any evidence
showing that Southern Tire breached its duty of ordinary care to him.  Because there is not even a scintilla of
evidence establishing either a duty or a breach, we find no error in the trial
court’s grant of summary judgment.  C.f. Cumpian v. Pan American Exp., Inc.,
147 S.W.3d 515, 517 (Tex.App.--San Antonio 2004, no pet.)(reversing trial court
finding of negligence where plaintiff failed to introduce any evidence of breach
of duty of ordinary care).
Assuming, arguendo, that a duty and a breach had
been established, the summary judgment proof does not establish the requisite
proximate causation.  To establish
proximate causation in a negligence claim, a party must prove both
“cause-in-fact” and foreseeability.  See Western Investments, Inc. v. Urena,
162 S.W.3d 547, 551 (Tex. 2005).  These
elements of proximate causation “cannot be established by mere conjecture,
guess, or speculation.”  Id., citing
Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). 
The test for cause in fact is whether the act or omission was a substantial
factor in causing the injury without which the harm would not have occurred.  Marathon
Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003).  If the defendant’s negligence merely furnished
a condition that made the injuries possible, there can be no cause in fact.  See IHS
Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799
(Tex. 2003); Urena, 162.S.W.3d at 551
(citing same).  Foreseeability requires
that a person of ordinary intelligence should have anticipated the danger
created by a negligent act or omission.  Doe, 907 S.W.2d at 478.  The danger of injury is foreseeable if its
“general character . . . might reasonably have been anticipated.”  Id.
The summary
judgment evidence presented by Vasquez is that the tire installed on the
garbage truck was a retread tire, which blew out and caused him to lose control
of the truck.  No evidence was presented
as to the course of the blow-out or whether the cause was because the tire was
a retread tire.  No evidence was
presented to indicate that another factor may have precipitated the
blow-out.  Essentially, the only evidence
produced by Vasquez is that the tire was a retread tire.
The undisputed summary
judgment proof, taken in a light most favorable to Vasquez, establishes that
there was no basis for Southern Tire to have foreseen that the installation of
the retread tire was the cause-in-fact of the accident.  See
Todd v. Pin Oak Green, 75 S.W.3d 658, 661 (Tex.App.--Texarkana 2002, no
pet.).  Vasquez failed to raise even a
scintilla of evidence establishing causation.
CONCLUSION
            Having
overruled Vasquez’ issue on appeal, the judgment of the trial court is
affirmed.
 
 
November
7, 2012
                                                                        CHRISTOPHER
ANTCLIFF, Justice
 
Before
McClure, C.J., Rivera, and Antcliff, JJ.




[1]
Vasquez was driving a garbage truck.


[2]
Montgomery Ward & Co. v. Scharrenbeck,
146 Tex. 153, 157, 204 S.W.2d 508, 510 (1947); Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986).


