Opinion issued April 22, 2014.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-13-00617-CV
                           ———————————
                        SIMON RAMIREZ, Appellant
                                       V.
         COLONIAL FREIGHT WAREHOUSE CO. INC., Appellee


                   On Appeal from the 113th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-20238


                                 OPINION

      Simon Ramirez appeals a no-evidence summary judgment granted to

Colonial Freight Warehouse Co., Inc. on his personal injury suit. In two issues,

Ramirez contends that the trial court erred in granting summary judgment because

Ramirez produced evidence sufficient to raise a genuine issue of material fact on
each challenged element of his negligence claim. We conclude that Ramirez has

raised a genuine issue of material fact on each element, precluding summary

disposition of his claim. We, therefore, reverse and remand.

                                   Background

      Ramirez, a truck driver, was struck by a truck while walking across the

fueling area of a truckstop. The truck that struck him was driven by a Colonial

Freight employee, Winnfred Lipsius. Ramirez described the accident in his

deposition, which he attached as evidence to his summary judgment response.

According to Ramirez’s testimony, the Colonial Freight truck sat idling in the

parking lot of the truckstop. Before walking in front of the stopped vehicle,

Ramirez attempted to make eye contact with the truck’s driver, Lipsius, to ensure

Lipsius could see him. Ramirez testified that Lipsius was looking to his left and

never turned forward to see Ramirez standing at the front, passenger side of his

truck. When Ramirez could not get Lipsius’s attention, Ramirez walked in front of

the vehicle, leaving a distance of about five feet between the truck and himself. But

Lipsius’s truck pulled forward before Ramirez made it across. Ramirez heard the

truck “throttle up” and jumped to move out of the way. The truck’s front,

passenger side struck him.

      Ramirez also testified about his injuries. Upon impact, he fell to his knees

then “pulled [him]self up” unassisted. He had been carrying two milkshakes in his



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hands when the accident occurred. The impact and fall did not cause him to drop

either shake. Nonetheless, he said, “I felt hurt.” He lay down in his truck bunk,

“already feeling . . . the pain.” He had a cut on his elbow that was bleeding, and his

left shoulder was red and bruised. He testified that his shoulder hurt immediately:

“[I]t was just hurting, you know, bullets in the back. And my arm was numb.”

Also, his neck hurt. He took ibuprofen and drove from Houston, where the

accident occurred, to Brownsville later that day.

      The next morning, he felt like he “couldn’t get up.” He was examined three

days after the injury by Dr. Orso, who ordered x-rays. Ramirez understood from

his conversation with Dr. Orso that he was hurt, that the discs in his spine were out

of place, and that he would need additional treatment. Though he was told to return

to Dr. Orso’s office in two weeks, he did not. He next saw Dr. Bettencourt who

performed a procedure on his neck. Later he saw Dr. Aggarwal who gave him

injections in his neck. Eventually he had neck surgery and shoulder surgery.

      Lipsius testified in his deposition, which also was attached as summary

judgment evidence, that he had pulled his truck forward from the fueling station to

a yellow line that designates where trucks need to stop to leave room for another

truck to enter the fueling station behind them. He then decided he wanted

something to drink and went inside the store. When he saw the long line, he went

back to his truck, which was still parked in the fueling area. He started the truck,



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released the air brake, and then looked both directions. When he looked left he saw

a truck next to him and waited to see if it was going to exit the fueling area first.

When that truck stopped, Lipsius removed his foot from the brake, and his truck

moved forward one or two feet. Immediately after that, he saw Ramirez “spinning

out from in front of [his] truck . . . .” He had not seen Ramirez before then. Lipsius

admitted that he did not look around again between the time that his attention was

focused on the other truck and the moment he began accelerating. He further

admits that his truck hit Ramirez.

      Lipsius also testified that he had a total of eight “incidents” listed on his

driving report, which details prior incidents, accidents, tickets, and reasons for

leaving various employers. He described four of these incidents, which occurred

over a six-year period. The last involved an accident in which his truck hit a

guardrail, caught on fire, and “burn[ed] to the ground.” According to Lipsius’s

deposition testimony, with eight incidents on his report, “nobody else would

touch” him.

      Lipsius testified that he applied online to drive for Colonial Freight and that

Colonial Freight did not ask for references. No one at Colonial Freight inquired

about his driving history or past accidents. Lipsius testified that he told the

Colonial Freight “safety/recruiting” employee about the guardrail accident and that

he was fired as a result, and she told him “not to say anything” about that accident



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to anybody else in the company. He eventually told the company owner about the

incident and was told “not to worry about it.”

      Ramirez sued Colonial Freight, alleging that the accident caused his personal

injuries and required subsequent surgical procedures to his neck and shoulder.

Colonial Freight moved for no-evidence summary judgment, contending that

Ramirez had no evidence of the breach and causation elements of his negligence

claim and, therefore, also had no evidence on two elements of his negligent

entrustment and negligent hiring claims. Ramirez responded, attaching as evidence

his and Lipsius’s depositions. Ramirez did not file his own affidavit or an affidavit

from any physician in response to the summary judgment motion. The trial court

granted Colonial Freight’s motion without specifying the element for which

Ramirez failed to produce evidence. Ramirez appealed.

                               Standard of Review

      In a Rule 166a(i) no-evidence summary judgment, the movant contends that

no evidence exists as to one or more essential elements of the nonmovant’s claims,

upon which the nonmovant would have the burden of proof at trial. TEX. R. CIV. P.

166a(i). The nonmovant has the burden to present evidence raising a genuine issue

of material fact on the challenged elements. Id. A no-evidence summary judgment

is essentially a pre-trial directed verdict. Bendigo v. City of Houston, 178 S.W.3d

112, 113–14 (Tex. App.—Houston [1st Dist.] 2005, no pet.).



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      On review, we ascertain whether the nonmovant produced more than a

scintilla of probative evidence to raise a genuine issue of material fact. Aleman v.

Ben E. Keith Co., 227 S.W.3d 304, 308 (Tex. App.—Houston [1st Dist.] 2007, no

pet.). More than a scintilla exists if the evidence “‘rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.’” King Ranch,

Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharm.,

Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). If the evidence does no more

than create a mere surmise or suspicion of fact, less than a scintilla of evidence

exists. Havner, 953 S.W.2d at 711–12. To defeat a no-evidence motion for

summary judgment, the nonmovant is not required to marshal its proof; his

response need only point out evidence that raises a fact issue on the challenged

elements. TEX. R. CIV. P. 166a(i) cmt.; Saenz v. S. Union Gas Co., 999 S.W.2d

490, 493–94 (Tex. App.—El Paso 1999, pet. denied).

                    Ramirez’s Summary Judgment Evidence

      Colonial Freight’s motion focused on the breach and proximate cause

elements of negligence. In response, Ramirez attached Lipsius’s deposition

transcript and his own deposition transcript, contending that Lipsius’s testimony

raised an issue of material fact on the breach element while his testimony raised an

issue on causation by establishing the nature and extent of his injuries and that the

“onset of painful symptoms began at the moment of the incident.” We must



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determine whether Ramirez’s summary judgment evidence raised an issue of

material fact on each of the challenged elements of his negligence claim.

                                  Breach Element

      Colonial Freight moved for no-evidence summary judgment on the breach

element of the negligence claim, arguing that there was no evidence that Lipsius’s

conduct fell below the standard of care of a driver or violated a statute.

      A negligence cause of action has three elements: (1) a legal duty, (2) breach

of that duty, and (3) damages proximately resulting from the breach. See Praesel v.

Johnson, 967 S.W.2d 391, 394 (Tex. 1998). A person owes another the duty to act

as a reasonably prudent person would act under the same or similar circumstances

regarding a reasonably foreseeable risk. Colvin v. Red Steel Co., 682 S.W.2d 243,

245 (Tex. 1984).

      Colonial Freight challenges the second element of Ramirez’s negligence

claim: breach of the duty of reasonable care. Ramirez’s summary judgment

response identified specific portions of Lipsius’s deposition testimony that he

claims raised a fact issue. Lipsius testified that he looked both directions before

attempting to drive away from the truckstop. When he looked left, he saw a truck

next to him and waited to see if it was going to exit the fueling area first. When

that truck did not go, Lipsius removed his foot from the brake, and his truck moved

forward one or two feet. Lipsius admitted that he did not look around again



                                           7
between the time that his attention was focused on the other truck and the moment

he began accelerating.

         Viewing this evidence in the light most favorable to the nonmovant,

reasonable and fair-minded people could differ in their conclusions about whether

Lipsius was negligent in failing to look out for pedestrians near his truck before

accelerating. See City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)

(stating that evidence is to be viewed in light most favorable to nonmovant).

Accordingly, we conclude that Ramirez raised a genuine issue of material fact on

the breach element of his negligence claim to avoid summary judgment on that

issue.

                                  Causation Element

         To establish causation in a personal injury case, a plaintiff must prove that

the defendant’s conduct caused an event and that the event caused the plaintiff to

suffer compensable injuries. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497,

499 (Tex. 1995).

         Ramirez contends that he properly defeated Colonial Freight’s summary

judgment motion challenging his evidence on the causation element because his

deposition established the nature and extent of his injuries and the “onset of painful

symptoms began at the moment of the incident.” Ramirez referred to his attached

deposition in his summary judgment response; however, he did not refer to any



                                           8
portion of the deposition with specificity. He also did not rely on expert testimony

to establish causation.

      We consider first whether Ramirez’s nonspecific reference to his deposition,

attached in its entirety as summary judgment evidence, adequately pointed out that

evidence to the trial court for consideration in ruling on the summary judgment

motion.

A.    Whether Ramirez’s reference to evidence was adequate

      A general reference to a voluminous summary judgment record is

inadequate to meet the evidentiary burden in a summary judgment. See Rogers v.

Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989) (“Such a general reference to

a voluminous record which does not direct the trial court and parties to the

evidence on which the movant relies is insufficient.”); Eaton Metal Prods., L.L.C.

v. U.S. Denro Steels, Inc., No. 14-09-00757-CV, 2010 WL 3795192, *6 (Tex.

App.—Houston [14th Dist.] Sept. 30, 2010, no pet.) (holding that “[b]lanket

citation to voluminous records” of approximately 700 pages was improper and did

not raise a fact issue). This Court similarly has held that a trial court did not abuse

its discretion in refusing to consider summary judgment evidence attached to a

summary judgment response when the nonmovant attached a complete deposition

transcript that was over 500 pages in length without referring the trial court to any

specific portion of the deposition. Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex.



                                          9
App.—Houston [1st Dist.] 1996, no writ); cf. Nicholson v. Naficy, 747 S.W.2d 3, 4

n.1 (Tex. App.—Houston [1st Dist.] 1987, no writ) (refusing to consider testimony

from deposition in appellate record that “was not cited, quoted, [or] attached to any

motion or response” as summary judgment evidence).

      The deposition here, however, was attached and was not voluminous. It

consisted of 110 total pages of testimony. Ramirez’s testimony about his injuries

began on page 56 and concluded by page 102.

      We have previously noted that when a party attaches as summary judgment

evidence a complete deposition transcript that is brief and provides a description of

the facts sufficient to “connect . . . the facts to the challenged elements of the

cause,” the party has met its burden to point the trial court to evidence raising a

fact issue. See Aleman, 227 S.W.3d at 309–10 (stating that “sheer brevity of the

evidence cited served to adequately ‘connect . . . the facts to the challenged

elements of the causes of action’” and, therefore, holding that party met “minimum

requirements” of Rule 166a(i) to point out evidence that raises fact issue on

challenged elements) (quoting Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d

862, 869 (Tex. App.—Houston [1st Dist.] 1999), aff’d, 73 S.W.3d 193 (Tex.

2002)). Similarly, in Stephens v. Precision Drilling Oilfield Servs. Corp., No. 01-

11-00326-CV, 2013 WL 1928797, at *7 (Tex. App.—Houston [1st Dist.] May 9,

2013, no pet.) (mem. op.), this Court held that a general reference to all unattached



                                         10
pleadings, arguments, and evidence is insufficient to invoke particular evidence for

summary-judgment purposes but an express reference to a short affidavit is

sufficient to point out that piece of evidence and have it considered. Id. (citing

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207–08 (Tex. 2002)); see

also Barraza v. Eureka Co., a Div. of White Consol. Indus., Inc., 25 S.W.3d 225,

229–30 (Tex. App.—El Paso 2000, pet. denied) (holding that general reference to

non-voluminous deposition transcripts and other evidence of less than 300 pages

attached as summary judgment evidence was adequate); Gallegos v. Johnson, No.

13-07-00603-CV, 2010 WL 672934, at *6 (Tex. App.—Corpus Christi Feb. 25,

2010, no pet.) (mem. op.) (holding that nonspecific reference to 185 pages of

deposition transcripts in summary judgment response was sufficient because record

was not voluminous and a “mere cursory review of the deposition testimony . . .

raised issues of material fact regarding the underlying” claim).

      Ramirez attached his own deposition as summary judgment evidence and

referred the trial court to it, stating that it contained evidence of the nature and

extent of his injuries and that his symptoms began with this accident. Ramirez

testified that he suffered back and shoulder pain immediately after the impact and

that it continued until he sought medical attention from Dr. Orso three days later.

Ramirez’s testimony on these issues begins on the 56th page of his deposition.




                                         11
      We conclude that Ramirez’s nonspecific reference to his deposition

testimony was adequate, given the brevity of the deposition and lack of complexity

of issues raised and addressed in the deposition. Aleman, 227 S.W.3d at 309–10.

      Ramirez also relied on medical records to demonstrate his injuries. Ramirez

did not attach these records to his summary judgment response. Instead, he referred

to the records previously filed with the trial court as attachments to Texas Civil

Practice and Remedies Code section 18.001 affidavits. TEX. CIV. PRAC. & REM.

CODE ANN. § 18.001 (allowing uncontroverted affidavits of medical expenses to

support finding of fact by judge or jury that amount charged was reasonable and

service was necessary). In total, there were 27 pages of medical records from four

doctors.

      Colonial Freight contends that the medical records were not part of the

summary judgment record and, therefore, could not be used as evidence to defeat

its motion when the trial court made its ruling. Colonial Freight further contends

that Ramirez waived any argument that the records can be considered on appeal

because he did not challenge the trial court’s denial of his motion to reconsider the

grant of summary judgment to Colonial Freight.

      A nonmovant responding to a summary judgment motion is not required to

“needlessly duplicate evidence [that is] already found in the court’s file.” Saenz,

999 S.W.2d at 494. Instead, he can request in his motion that the trial court take



                                         12
judicial notice of evidence already in the record or, alternatively, incorporate that

evidence in his motion by reference. Steinkamp v. Caremark, 3 S.W.3d 191, 194–

95 (Tex. App.—El Paso 1999, pet. denied); Fears v. Tex. Bank, 247 S.W.3d 729,

734–35 (Tex. App.—Texarkana 2008, pet. denied); Sadler v. Tex. Farm Bureau

Mut. Ins. Cos., No. 04-12-00789-CV, 2013 WL 4736392, at *3 (Tex. App.—San

Antonio Sept. 4, 2013, no pet.) (mem. op.).

      Incorporating by reference does not require “magic language”; instead, the

nonmovant simply must alert the court that previously filed documents are being

relied upon and make the court aware of which ones are to be considered.

Steinkamp, 3 S.W.3d at 194; see Saenz, 999 S.W.2d at 494. Ramirez stated in his

summary judgment response that “Plaintiff[’s] medical and billing records . . . have

been produced to all Defendants and have been on file with this Court pursuant to

TEX. CIV. PRAC. & REM. CODE ANN. § 18.001.” Ramirez argued that these records

raised an issue of material fact on proximate cause. That reference was adequate to

include the medical records in Ramirez’s summary judgment evidence that was

before the trial court when it ruled. Because the records were incorporated in

Ramirez’s summary judgment response, Colonial Freight’s waiver argument is

overruled.

      Having concluded that the references to the deposition testimony and the

medical records were adequate to bring them within the summary judgment



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evidence, we consider next whether Ramirez’s evidence raised an issue of material

fact to defeat Colonial Freight’s no-evidence summary judgment motion on

causation absent expert testimony.

B.    Causal link between incident and injuries

      Non-expert evidence can be sufficient to support a finding of causation “in

limited circumstances where both the occurrence and conditions complained of are

such that the general experience and common sense of laypersons are sufficient to

evaluate the conditions and whether they were probably caused by the occurrence.”

Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007); see also Figueroa v. Davis,

318 S.W.3d 53, 60–61 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (holding

that, in some circumstances, lay testimony can establish logically traceable

connection between event and condition and be sufficient proof of causation). The

evidence must be adequate to allow a layperson, using general experience and

common sense, to determine the causal relationship with reasonable probability.

Guevara, 247 S.W.3d at 668.“[L]ay testimony establishing a sequence of events

which provides a strong, logically traceable connection between the event and the

condition is sufficient proof of causation.” Morgan v. Compugraphic Corp., 675

S.W.2d 729, 733 (Tex. 1984); Guevara, 247 S.W.3d at 669 (holding that lay

testimony was legally sufficient to support jury’s finding that at least some of

medical expenses were causally related to automobile accident that same day); see



                                       14
also Sw. Bell Tel., L.P. v. Valadez, No. 2-07-129-CV, 2008 WL 425746, at *3

(Tex. App.—Fort Worth Feb. 14, 2008, no pet.) (holding that plaintiff’s testimony

was legally sufficient evidence of causation to support jury’s verdict given that

type and extent of injuries suffered were within layperson’s common knowledge

and expectation).

      In Figueroa, the plaintiff hit his mouth on the steering wheel during a car

accident. 318 S.W.3d at 58, 61. The plaintiff testified that his mouth hurt, his teeth

were cracked, and, after just a couple of days, his teeth broke into pieces and fell

out. See id. at 61. The defendant argued that there was legally insufficient evidence

that the dental injury was caused by the accident. Id. at 58. This Court concluded

that the plaintiff’s lay testimony was legally sufficient evidence of causation,

stating that the evidence was “akin to the ‘pain, bone fractures, and similar basic

conditions following an automobile collision’ that the Guevara court indicated

would fall within the common experience of lay persons so that causation could

stand on lay testimony.” Id. at 61; see also Valadez, 2008 WL 425746, at *3

(holding that plaintiff’s lay testimony—that he experienced severe pain to shoulder

immediately upon falling into hole, combined with evidence that he had not had

pain before accident—sufficed to show causation).

      Ramirez complained of immediate pain in his back, neck and shoulder. He

testified that he was “already feeling . . . the pain,” which was like “bullets in the



                                         15
back,” as well as numbness in his arm before he left the truckstop. The next

morning was worse; he felt like he “couldn’t get up.” Ramirez’s medical records

corroborate his deposition testimony that he complained of pain in his back and

shoulder immediately after the accident These complaints of pain and general

soreness fall within the general knowledge and experience of lay persons and are

the types of complaints that would be expected following impact with a vehicle.

Guevara, 247 S.W.3d at 668; Figueroa, 318 S.W.3d at 60–61. We conclude that

Ramirez met his burden, through lay testimony, to defeat Colonial Freight’s no-

evidence summary judgment motion on the causation element of negligence.

C.    Causal link between conduct and incident

      Colonial Freight also argues that Ramirez was the sole proximate cause of

the accident because he acted unreasonably by walking in front of Lipsius’s truck

without confirming that Lipsius saw him there. “Sole proximate cause” means the

“only” proximate cause; if there is more than one proximate cause of an event, no

single proximate cause can be considered the sole cause. See First Assembly of

God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 493 (Tex. App.—Dallas 2001,

no pet.) We have already concluded that Ramirez raised an issue of fact as to

whether Lipsius’s negligence caused the accident and whether the accident caused

his injuries; therefore, Colonial Freight could not, as a matter of law, obtain no-

evidence summary judgment on its sole proximate cause theory.



                                        16
      We turn next to the other negligence-based claims Ramirez asserted, which

are negligent entrustment and negligent hiring.

                              Negligent Entrustment

      Ramirez sued Colonial Freight on a negligent entrustment theory in addition

to general negligence. To prevail on a negligent entrustment theory, a plaintiff

must show (1) that the vehicle owner entrusted the vehicle (2) to an unlicensed,

incompetent, or reckless driver, (3) that the owner knew or should have known that

the driver was unlicensed, incompetent, or reckless, (4) that the driver was

negligent on the occasion in question, and (5) that the driver’s negligence

proximately caused the accident. See Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 758 (Tex. 2007); Schneider v. Esperanza Transmission Co., 744

S.W.2d 595, 596 (Tex. 1987).

      Colonial Freight challenges the last two elements of Ramirez’s negligent

entrustment claim. We have already concluded that Ramirez raised an issue of

material fact on each of those issues; therefore, Colonial Freight was not entitled to

no-evidence summary judgment on this claim.

                                 Negligent Hiring

      Ramirez also contended that Colonial Freight was liable for negligently

hiring Lipsius. An employer has a general duty to adequately hire, train, and

supervise its employees. See Houser v. Smith, 968 S.W.2d 542, 544 (Tex. App.—



                                         17
Austin 1998, no pet.) A claim of negligent hiring and supervision is based on the

employer’s direct negligence: an employer who negligently hires an incompetent

or unfit individual may be directly liable to a third party whose injury was

proximately caused by the employee’s negligent or intentional act. Verinakis v.

Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.—Houston [14th Dist.] 1998,

pet. denied) (citing Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v.

Akins, 926 S.W.2d 287, 294 (Tex. 1996). Colonial Freight challenges only those

elements of Ramirez’s negligent hiring cause of action related to its employee’s

negligence and proximate cause. We have determined that Ramirez raised a fact

issue on each element; therefore, Colonial Freight is not entitled to summary

judgment on this claim.

                                  Conclusion

      Having concluded that Ramirez raised a genuine issue of material fact on

each element Colonial Freight challenged in its no-evidence summary judgment

motion, we further conclude that the trial court erred in granting summary

judgment to Colonial Freight.




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      The trial court’s judgment is reversed, and the cause is remanded to the trial

court for further proceedings consistent with this opinion.




                                              Harvey Brown
                                              Justice

Panel consists of Justices Keyes, Bland, and Brown.




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