
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-06-00405-CV


AnnaMarie Sherbin, Appellant

v.

Carmen Laverne Wunsch, Appellee




FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. C2003-0058A, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

	Appellant AnnaMarie Sherbin sued appellee Carmen Laverne Wunsch and several
others for negligence, complaining of injuries she suffered in a traffic accident.  Wunsch filed a
motion for no-evidence summary judgment, which the trial court granted, severing Sherbin's claims
against Wunsch into a separate cause.  Sherbin appeals, asserting that she produced evidence raising
a fact question as to the essential elements of her claim.  We affirm the trial court's judgment.
	A defendant seeking a no-evidence summary judgment must assert that there is
no evidence of at least one essential element of the plaintiff's claim, specifying the elements under
attack. (1)  Tex. R. Civ. P. 166a(i).  "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).  Thus, we will affirm a no-evidence summary judgment if (a) there is a
complete absence of evidence of a material fact; (b) the trial court was barred by statute or rules of
evidence from giving weight to the only evidence proving a material fact; (c) the evidence offered
to prove a material fact amounts to no more than a mere scintilla; or (d) the evidence conclusively
establishes the opposite of the material fact.  See City of Keller v. Wilson, 168 S.W.3d 802, 810
(Tex. 2005) (discussing "no-evidence points" and quoting Robert W. Calvert, "No Evidence"
& "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361 (1960)).  We view the evidence in
the light most favorable to the non-movant, disregarding all contrary evidence and inferences unless
a reasonable fact finder could not.  See id. at 827.  Evidence amounts to more than a scintilla if it
rises to a level that would allow reasonable and fair-minded people to differ in their conclusions. 
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).  Evidence amounts to no more than
a scintilla if it is "so weak as to do no more than create a mere surmise or suspicion" of a fact. 
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
	On the morning of January 21, 2003, a thick cloud of dust suddenly obstructed the
vision of drivers along I-35 in New Braunfels, leading to a pileup of thirty vehicles.  The dust cloud
apparently was caused by a construction company working with lime dust on the roadside. 
According to Sherbin's original petition, the cloud made "visibility all but non-existent," and
three vehicles, which she alleged were driven by Wunsch and two others, collided and struck the
back of the van in which Sherbin was a passenger.  She alleged that Wunsch had operated her car
at an excessive rate of speed for the conditions and failed to keep a proper lookout, turn her steering
wheel to avoid a collision, maintain a reasonable distance between vehicles, or apply her brakes to
avoid a collision.  In her motion for summary judgment, Wunsch asserted that Sherbin could not
show that Wunsch breached a duty that she owed to Sherbin.  Sherbin responded that there was a
question of fact as to whether Wunsch acted reasonably and prudently in the moments before the
accident and produced the police reports from the day of the accident, a transcript of a telephone
conversation between Wunsch and someone named Doug Knoll, and medical records showing
Sherbin's injuries.
	In her conversation with Knoll, (2) Wunsch said she was driving on the highway when
the dust cloud "just blinded everybody."  She said that she slowed down and that it "was just
fortunate there was nobody really like right in front of me."  Wunsch said, "[W]hen I slowed down
a little bit, the person behind me hit me and just kinda rammed me into, rammed me, and then, that's
all I remember.  Then I remember other cars hitting me and, you know, pushing me."  She said "we
were just like all really going slow," "[c]reeping forward," when she was rear-ended and pushed into
the car in front of her.  Someone else hit the vehicle behind her, "somebody else hit me again," and
"then a semi-truck hit me in the side, on my side and from then on I don't remember."  She said that
being struck from behind "caused me to hit the front, the person in front of me because I was, at this
point I had my brakes on" and "had no control over anything."
	The police reports list all thirty vehicles involved in the accident and include a
diagram of the accident scene drawn by a police officer.  Wunsch's vehicle, which is designated
#11 on the diagram and reports, is shown on the diagram as being positioned between the two lanes
of traffic.  Sherbin's van, #10, is shown angled sharply to the right between the right lane and the
concrete side barrier of the highway.  Vehicle #12, a red pickup truck, is immediately behind
Sherbin's van and touching the back right corner of the van, and Wunsch's car is sandwiched
between vehicle #12 on her passenger side and a tractor-trailer on her driver's side.
	Wunsch told Knoll that she struck a vehicle in front of her, but she did not describe
the vehicle she struck in any way.  She said she was struck from behind when she slowed down to
a crawl, causing her to be pushed into the vehicle in front, despite the fact that she was applying her
brakes.  The police diagram shows Wunsch's car pinned between a pickup truck (vehicle #12) on
her passenger side and a tractor-trailer on her driver's side.  It does not show that Wunsch's car made
contact with Sherbin's van and instead shows that vehicle #12 was immediately behind and touching
Sherbin's van.  Sherbin did not produce deposition testimony by Wunsch, affidavits or statements
by police officers, or any other evidence raising a fact issue as to whether Wunsch's car contacted
Sherbin's vehicle at all, much less whether her conduct was negligent.  Considering the police
diagram and Wunsch's conversation with Knoll, Sherbin did not raise a fact issue as to whether
Wunsch breached any duty she owed to Sherbin or was a proximate cause of her injuries.  We affirm
the trial court's granting of summary judgment in Wunsch's favor.
 

					__________________________________________
					David Puryear,  Justice
Before Chief Justice Jones, Justices Puryear and Henson
Affirmed
Filed:   June 3, 2009
1.   The elements of a negligence claim are:  (1) breach of (2) a legal duty owed to another, and
(3) damages proximately caused by the breach.  D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.
2002).  Proximate cause requires cause in fact and foreseeability; harm is foreseeable if a person of
ordinary intelligence should have anticipated the danger her negligence created for others.  Id.
(quoting El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987)).   
2.   The transcript of this telephone conversation was attached without explanation to Sherbin's
response to Wunsch's motion for summary judgment.  The transcript opens with Knoll introducing
himself and Wunsch and stating that the conversation was taking place at about 6:00 p.m. on the day
of the accident and was being recorded.  The record does not explain who Doug Knoll is or why he
called Wunsch to question her about the accident.
