REVERSE and REMAND; and Opinion Filed July 31, 2013.




                                           S  In The
                                        Court of Appeals
                                 Fifth District of Texas at Dallas

                                        No. 05-12-01031-CV

                              P.A.M. TRANSPORT, INC., Appellant
                                            V.
                             STEVENS TRANSPORT, INC., Appellee

                          On Appeal from the County Court at Law No. 5
                                      Dallas County, Texas
                              Trial Court Cause No. CC-11-05864-E

                                  MEMORANDUM OPINION
                             Before Justices Moseley, O’Neill, and Lewis
                                     Opinion by Justice O’Neill
           In this vehicular accident case, appellant P.A.M. Transport appeals a summary judgment

granted in favor of Stevens Transport, Inc. In three issues, P.A.M. contends the trial court erred

in granting summary judgment because (1) Stevens failed to conclusively establish negligence,

(2) Stevens failed to conclusively establish damages, and (3) Stevens’ summary judgment relied

on the incorrect measure of damages. Because we conclude Stevens failed to conclusively

establish P.A.M.’s driver’s negligence proximately caused the collision, we reverse the trial

court’s judgment and remand for further proceedings.

           Stevens sued P.A.M. alleging its driver, James Herdo, was negligent in failing to keep a

proper lookout and failing to safely operate his vehicle when Herdo backed into Stevens’ semi-

tractor.     Stevens filed a traditional motion for summary judgment asserting it conclusively
established Herdo’s negligence proximately caused the collision resulting in damages to its semi-

tractor. The trial court granted the motion.

       In its first issue, P.A.M. contends the trial court erred in granting the motion because

Stevens failed to conclusively establish Herdo breached his duty of care. Stevens, as movant for

summary judgment, had the burden of showing there was no genuine issue of material fact, and

that it was entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). As plaintiff moving for

summary judgment on its affirmative claims, Stevens was required to prove all essential

elements of its cause of action as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d

20, 27 (Tex. 1990). A matter is conclusively established if ordinary minds cannot differ as to the

conclusion to be drawn from the evidence. AN Collision Ctr. of Addison, Inc. v. Town of

Addison, 310 S.W.3d 191, 193 (Tex. App.—Dallas 2010, no pet.).

       In its motion for summary judgment, Stevens alleged it had conclusively established

Herdo breached his duty of care by backing into Stevens’ semi- tractor. According to P.A.M.,

this was insufficient to conclusively establish a breach of the duty of care. We agree.

       To establish negligence, a party must establish a duty, a breach of that duty, and damages

proximately caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per

curiam). Every motorist has a duty to keep a proper lookout. Lynch v. Ricketts, 158 Tex. 487,

491-92, 314 S.W.2d 273, 275 (1958). “[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.” Carney v.

Roberts Inv. Co., 837 S.W.2d 206, 210 (Tex. App.—Tyler 1992, writ denied).          To establish a

motorists negligence is a proximate cause of a collision, “there must be facts in the evidence

from which [a fact-finder could infer] that a proper lookout ... would have alerted an ordinary
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prudent person to danger at such time and distance that evasive action could have been taken in

order to prevent the accident.” Fannin v. Hall, 561 S.W.2d 952, 956 (Tex. Civ. App.—Tyler

1978, no writ); see Montes v. Pendergrass, 61 S.W.3d 505, 510 (Tex.App.—San Antonio 2001,

no pet.).

        In its motion for summary judgment, Stevens relied on P.A.M.’s answers to admissions

to prove Herdo breached the duty of care. Specifically, P.A.M. admitted that Herdo backed into

Stevens’ semi-tractor at a truck stop. P.A.M. asserts this evidence is insufficient to prove Herdo

breached his duty of care because Stevens did not establish any specific act of negligence that

caused the collision.    Stevens responds that summary judgment was proper because the

admissions were sufficient to permit the trial court to “find” that Herdo breached his duty by

failing to keep a proper lookout.

        Initially, we note that the issue here is not whether the evidence would be sufficient to

support a finding of negligence following a trial on the merits. Rather, the question is whether

P.A.M.’s summary judgment evidence rises to the level of conclusive evidence that Herdo failed

to keep a proper lookout. There mere occurrence of an accident is no evidence of negligence,

but the character of the accident, and the circumstances of proof attending it, may be such to

support a finding that without negligence the accident would not have occurred. Brinegar v.

Porterfield, 705 S.W.2d 236, 238 (Tex. App.—Texarkana 1986), aff’d, 719 S.W.2d 558 (Tex.

1986). A rear-end collision may be some evidence of negligence of the rear-ending driver, but it

does not constitute conclusive proof. Stone v. Sulak, 994 S.W.2d 348, 351 (Tex. App.—Austin

1999, no pet.); see also Benavente v. Granger, 312 S.W.3d 745, 749 (Tex. App.—Houston [1st

Dist.] 2009, no pet.); Risinger v. Shuemaker, 160 S.W.3d 84, 90 (Tex. App.—Tyler 2004, pet.

denied).



                                               –3–
       Here, Stevens was required to conclusively establish that Herdo failed to keep a proper

lookout and that failure proximately caused the collision.       Instead, Stevens conclusively

established that Herdo backed into Stevens semi-tractor. Just as proof that a driver rear-ended

another vehicle does not constitute conclusive proof of negligence, neither is evidence that a

driver backed into another vehicle. Because Stevens failed to conclusively establish Herdo failed

to keep a proper lookout, we reverse the trial court’s judgment and remand for further

proceedings consistent with this opinion.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O'NEILL
                                                    JUSTICE


121031F.P05




                                              –4–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

P.A.M. TRANSPORT, INC., Appellant                     On Appeal from the County Court at Law
                                                      No. 5, Dallas County, Texas
No. 05-12-01031-CV         V.                         Trial Court Cause No. CC-11-05864-E.
                                                      Opinion delivered by Justice O’Neill.
STEVENS TRANSPORT, INC., Appellee                     Justices Moseley and Lewis participating.

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.

       It is ORDERED that appellant P.A.M. TRANSPORT, INC. recover its costs of this
appeal from appellee STEVENS TRANSPORT, INC.


Judgment entered this 31st day of July, 2013.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O’NEILL
                                                      JUSTICE




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