                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-17-00573-CV

                                        Amelia SKRZYCKI,
                                             Appellant

                                                  v.

                                        Shirley B. WRIGHT,
                                              Appellee

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 14-2419-CV
                              Honorable William Old, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 27, 2018

AFFIRMED

           Amelia Skrzycki filed the underlying wrongful death action asserting Shirley B. Wright’s

negligence was a proximate cause of her husband’s death in an automobile accident. In this appeal,

Skrzycki contends the trial court erred in granting a no-evidence summary judgment in favor of

Wright because Skrzycki presented more than a scintilla of evidence to raise a genuine issue of

material fact on the breach and causation elements of her claim. We affirm the trial court’s

judgment.
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                                          BACKGROUND

       Skrzycki’s husband was driving a propane tank truck traveling north on a farm-to-market

road. Leigh Ann Sumners ran a stop sign at an intersection and collided with the propane tank

truck, causing the truck to roll onto its left side and eject Skrzycki’s husband. The impact of the

collision caused the truck to continue rotating on its side in a clockwise direction into the

southbound lane of the farm-to-market road where an SUV being driven by Wright collided with

the roof of the truck. After Wright’s SUV collided with the truck, the truck continued spinning

clockwise on its side before coming to rest in a ditch. In the DPS crash report, Sumners was

charged with criminally negligent homicide. The crash report did not attribute any fault to Wright.

       Skrzycki sued Wright alleging she was negligent in failing to keep a proper lookout, failing

to timely or properly apply her brakes, and failing to turn or swerve to avoid the collision. Wright

filed a no-evidence motion for summary judgment asserting Skrzycki had “no evidence Mrs.

Wright’s conduct breached a duty of care owed or, assuming arguendo that she breached a duty

of care, that her conduct was the proximate cause of Mr. Skrzycki’s tragic and untimely death.”

Skrzycki filed a response to the motion. After considering the motion and response, the trial court

signed an order granting Wright’s motion. Skrzycki appeals.

                                     STANDARD OF REVIEW

       We review a trial court’s granting of a summary judgment de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A no-evidence summary judgment is essentially

a directed verdict granted before trial, to which we apply a legal sufficiency standard of review.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). “A no-evidence motion for

summary judgment must be granted if, after an adequate time for discovery, the moving party

asserts there is no evidence of one or more essential elements of a claim or defense on which an

adverse party has the burden of proof at trial and the nonmovant fails to produce more than a
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scintilla of summary judgment evidence raising a genuine issue of material fact on those elements.”

Medistar Corp. v. Schmidt, 267 S.W.3d 150, 157 (Tex. App.—San Antonio 2008, pet. denied); see

also TEX. R. CIV. P. 166a(i). “Less than a scintilla of evidence exists when the evidence is so weak

as to do no more than create a mere surmise or suspicion of a fact.” King Ranch, Inc., 118 S.W.3d

at 751 (internal quotation marks omitted). “More than a scintilla of evidence exists when the

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

conclusions.” Id. (internal quotation marks omitted). When reviewing a no-evidence summary

judgment, “we examine the entire record in the light most favorable to the nonmovant, indulging

every reasonable inference and resolving any doubts against the motion.” Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006) (per curiam) (internal quotation marks omitted).

                                 GENERAL DUTY OF MOTORISTS

       “A driver has a general duty to exercise the ordinary care a reasonably prudent person

would exercise under the same circumstances to avoid a foreseeable risk of harm to others.”

Ciguero v. Lara, 455 S.W.3d 744, 748 (Tex. App.—El Paso 2015, no pet.) .         “Motorists [also]

have a general duty to keep a proper lookout.” Montes v. Pendergrass, 61 S.W.3d 505, 509 (Tex.

App.—San Antonio 2001, no pet.). The duty to keep “[a] proper lookout encompasses the duty to

observe, in a careful and intelligent manner, traffic and the general situation in the vicinity,

including speed and proximity of other vehicles as well as rules of the road and common

experience.” Id. (quoting Carney v. Roberts Inv. Co., 837 S.W.2d 206, 210 (Tex. App.—Tyler

1992, writ denied)). “The failure to keep a proper lookout can be a proximate cause of an accident

where the motorist should have seen something in time to have avoided the accident by evasive

action and but for such failure the collision could have been avoided.” Ciguero, 455 S.W.3d at

748 (quoting Montes, 61 S.W.3d at 510).



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                                                      ANALYSIS

           In response to Wright’s no-evidence motion for summary judgment, Skrzycki presented

the following summary judgment evidence: (1) the crash report; (2) Wright’s voluntary sworn

statement; and (3) Mr. Skrzycki’s death certificate. 1 In her brief, Skrzycki asserts this evidence,

considered in the light most favorable to her, demonstrated that Wright breached the duty she owed

to Mr. Skrzycki “by failing to take appropriate evasive action in order to avoid slamming her

vehicle into the cab of the overturned propane truck.” Skrzycki specifically relies on: (1) a forensic

map attached to the crash report which Skrzycki believes “reflects a considerable distance between

the areas of impact (AOI) of each collision;” (2) the absence of any indication in the crash report

that Wright attempted to decelerate or take any evasion action or maneuvers; 2 and (3) no skid

marks from Wright’s vehicle being noted on the forensic map. Skrzycki also relies on Wright’s

sworn statement in which Wright stated she saw Sumners’s vehicle traveling fast on the side road

and was watching “to be sure [Wright] would not be in the way in case [Sumners] did not stop” at

the intersection and that she “saw the propane truck in the same area.”

           Even if we were to agree that the foregoing raised a fact issue on whether Wright failed to

keep a proper lookout, the evidence does not raise a genuine issue of material fact on proximate

cause, “i.e. that [Wright] could have avoided colliding with [Mr. Skrzycki] if [Wright] fulfilled

[her] general duties as a driver.” See Ciguero, 455 S.W.3d at 748. “A driver’s testimony that a




1
  Skrzycki also presented her pleadings and an unsigned, unsworn statement by a witness to the accident; however,
neither of these documents constitutes competent summary judgment evidence. See Hidalgo v. Sur. Sav. & Loan
Ass’n, 462 S.W.2d 540, 543 (Tex. 1971) (“Pleadings simply outline the issues; they are not evidence, even for
summary judgment purposes.”); Weyel v. Hopson, No. 04-14-00085-CV, 2015 WL 505078, at *4 (Tex. App.—San
Antonio Feb. 4, 2015, no pet.) (mem. op.) (“In general, pleadings do not constitute competent summary judgment
evidence.”); Ex parte Karedia, No. 03-11-00831-CR, 2013 WL 599555, at *4 (Tex. App.—Austin Feb. 15, 2013, pet.
ref’d) (mem. op.) (noting unsworn statement “is not proper summary-judgment proof”); Coastal Cement Sand Inc. v.
First Interstate Credit All., Inc., 956 S.W.2d 562, 567 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (same).
2
    We question how the absence of such an indication would constitute evidence that Wright did not take such actions.

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collision occurred concurrent with or immediately preceding his recognition of a road hazard,

standing alone, constitutes no evidence on the issue of proximate cause because it does not raise a

fact issue on whether the accident could have been avoided.” Id. at 749. The absence of evidence

on this issue makes this case similar to the El Paso court’s decision in Ciguero and this court’s

decision in Turner v. Cruz, No. 04-10-00313-CV, 2010 WL 5545392 (Tex. App.—San Antonio

Dec. 29, 2010, no pet.) (mem. op.).

       In Ciguero, a motorist struck a pedestrian who was running alongside a highway while

being pursued by United States Customs and Border Protection (“CBP”) officers. 455 S.W.3d at

746. The motorist did not see the CBP vehicles until seconds after the collision. Id. In his

deposition, the motorist stated: (1) he did not remember how fast he was driving but ordinarily

drove at or under the speed limit; (2) he did not remember whether he applied his brakes before

the impact; and (3) “the collision happened so quickly that he did not have a chance to do anything

to avoid it.” Id. at 746. In affirming a no-evidence summary judgment in favor of the motorist,

the El Paso court asserted the motorist’s “deposition testimony alone create[d] no more than

surmise or suspicion that any breach of the duty to maintain speed or keep a proper lookout was

the proximate cause of the collision. As such, it is no evidence on proximate cause.” Id. at 749.

The court held, “Because Appellant failed to proffer any additional, competent, timely summary

judgment evidence showing [the motorist] could have avoided colliding with [the pedestrian], the

trial court’s ruling was proper.” Id.

       Similarly, in Turner, Geraldine Turner was a passenger in a car being driven by John Gray.

2010 WL 5545392, at *1. “Gray, who was intoxicated and speeding, hydroplaned on the wet

roadway, crossed over into oncoming traffic, and hit a vehicle driven by [Santiago] Cruz.” Id.

Turner died in the accident, and her beneficiaries sued Gray and Turner, alleging they were both

negligent in causing Turner’s death. Id. In response to Cruz’s no-evidence motion for summary
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judgment, Turner’s beneficiaries “claimed that a fact issue existed as to Cruz’s negligence in

causing the accident because the evidence showed that Cruz was aware of Gray’s vehicle, but was

unable to stop in time to avoid the collision.” Id. at *2. The trial court granted Cruz’s motion, and

this court affirmed the trial court’s judgment on appeal reasoning:

         The mere fact that Cruz saw Gray swerve into Cruz’s lane of traffic but was not
         able to stop in time to avoid a collision is simply no evidence that Cruz breached
         any duty to Turner or that his acts and/or omissions were a proximate cause of the
         collision. The Turners’ argument assumes, without evidentiary support, that Cruz
         had time to see Gray’s vehicle and to take evasive action.

Id. at *4.

         Similarly, Skrzycki assumes, without evidentiary support, that Wright had time to take

evasive action after she saw Sumners’s vehicle collide with the propane tank truck being driven

by Mr. Skrzycki. 3 See id. “Because [Skrzycki] failed to proffer any additional, competent, timely

summary judgment evidence showing [Wright] could have avoided colliding with [the propane

truck], the trial court’s ruling was proper.” 4 Ciguero, 455 S.W.3d at 749.

                                                   CONCLUSION

         The trial court’s judgment is affirmed.

                                                           Luz Elena D. Chapa, Justice




3
  Any inference that Wright had time to take evasive action based on the forensic map which Skrzycki asserts “reflects
a considerable distance between the areas of impact (AOI) of each collision” would be based on mere surmise or
suspicion. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (“[Summary judgment] evidence must
transcend mere suspicion. Evidence that is so slight as to make any inference a guess is in legal effect no evidence.”).
4
  We also question whether Skrzycki proffered any summary judgment evidence to show Wright’s alleged negligent
acts were a proximate cause of Mr. Skrzycki’s death since the crash report states Mr. Skrzycki was ejected when his
truck collided with Sumners, and the truck remained on its left side with Mr. Skrzycki pinned underneath as it slid
down the highway.

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