                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


  KEVIN D. MURRAY,                               '
                                                                No. 08-18-00187-CV
                              Appellant,         '
                                                                   Appeal from the
  v.                                             '
                                                                 109th District Court
  NABORS WELL SERVICE d/b/a C&J                  '
  ENERGY SERVICES INC., and                                   of Andrews County, Texas
                                                 '
  TIMOTHY M. WHITE,
                                                 '                  (TC# 20,463)
                              Appellees.
                                           OPINION

       Appellant Kevin D. Murray (“Murray”) asks this Court to reverse the trial court’s order

granting summary judgment in favor of Appellees Nabors Well Service d/b/a C&J Energy Services

Inc. (“Nabors”) and Timothy M. White (“White”). Murray argues that genuine issues of material

fact exist regarding whether Nabors and White owed Murray a duty to warn of the presence of a

disabled vehicle on the shoulder of a highway on which Murray was traveling; whether White had

a duty to warn regarding the presence of the Nabors vehicle after he pulled over to assist Gomez;

and whether Nabors and White were negligent per se for violating two sections of the Texas

Transportation Code regarding parking on a traveled roadway.
         We find no genuine issues of material fact exist pertaining to Murray’s claims against

Nabors and White and affirm the decision of the trial court granting summary judgment in their

favor.

                                               BACKGROUND

                                             Factual Background

         In January 2015, a Dodge Ram pickup truck with attached trailer owned and operated by

Martin A. Gomez, Jr. (“Gomez”) experienced sudden electrical failure while traveling northbound

on FM 181. He pulled the vehicle onto the improved shoulder of FM 181 North. The lights on

Gomez’s truck and trailer were non-operational due to the electrical failure. It was night and the

area was completely dark. At some point after Gomez pulled his vehicle and the attached trailer

onto the improved shoulder of FM 181, Timothy M. White (“White”), who was also traveling

northbound on FM 181, came upon the area where Gomez’s vehicle was disabled. The pickup

truck White drove was owned by his employer, Nabors Well Service d/b/a C&J Energy Services

Inc. (“Nabors”). 1 The area where Gomez pulled his vehicle over was along a flat stretch of

roadway. The area is visible to approaching traffic at a distance of approximately one and a half

miles. A short distance north of the area where Gomez’s vehicle was disabled, the roadway went

up a hill. As he approached Gomez, White observed that there were no operational lights or flares

on Gomez’s vehicle and trailer. Despite it lacking operational lights or flares, White was able to

see Gomez’s trailer and vehicle as he approached them. Observing Gomez to be a young person


1
  The parties do not dispute that White was an employee of Nabors at the time of the accident, and that the truck he
was driving was owned by Nabors. There is no discussion in either Murray’s Petition or White and Nabors’ Amended
Motion for Summary Judgment about what theory of liability would be attributable to Nabors under the facts of this
case. However, for purposes of this appeal, we will assume that any liability attributed to White would be imputed
to Nabors under a theory of respondeat superior. See Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754, 757
(Tex. 2007)(holding an employer vicariously liable for the negligent acts of its employee when such acts occur during
the course and scope of the employee’s employment).
                                                         2
who appeared in need of assistance, White pulled over to help him. After pulling over behind

Gomez’s trailer and discussing the situation with Gomez, White agreed to help Gomez jumpstart

his battery. White got back into the Nabors vehicle, drove to the top of the hill just past Gomez’s

location, turned around, and parked facing southbound on the east improved shoulder such that the

Nabors vehicle and Gomez’s vehicle were hood to hood. White testified that he had his flashers

on and was facing Gomez’s vehicle and trailer. White gave Gomez a flashlight and told him to

stand at the rear of the trailer waving the flashlight. White was carrying triangles in the Nabors

vehicle but did not use them. After trying unsuccessfully to jumpstart Gomez’s truck, White

agreed that he would help tow Gomez’s vehicle off the road. White got back into the Nabors

truck and waited for the oncoming headlights to pass so he could turn his truck around.

       As White sat in his truck waiting, another vehicle was traveling northbound on FM 181

toward the area where Gomez and White’s vehicles were parked on the east shoulder. That

vehicle was operated by James R. Seymour (“Seymour”), and Kevin D. Murray (“Murray”) was

the front-seat passenger. Murray did not exercise any control over Seymour’s vehicle. Murray

testified that he was not looking at the roadway; he was looking out his window into the field to

his right. As Seymour’s vehicle approached the area where Gomez’s vehicle was parked on the

shoulder, Seymour’s vehicle veered outside the lane of travel and onto the improved shoulder and

collided with Gomez’s trailer. Seymour failed to apply his brakes at any point prior to the

collision. The force of the impact pushed Gomez’s trailer and truck into White’s parked vehicle,

which was then pushed backwards approximately thirty feet. A photograph taken after the

accident shows Gomez’s trailer and the Nabors vehicle partially on the roadway.

                                       Procedural History


                                                3
         Murray sued Seymour, Gomez, White, and Nabors for negligence. 2 Against Gomez,

White, and Nabors, Murray also alleged negligence per se for violations of Sections 545.301(a)

and 545.303(a) of the Texas Transportation Code. The court entered an Order of Dismissal with

prejudice as to Seymour on February 2, 2017.

         On July 21, 2017, White and Nabors moved for summary judgment for the first time.

Their original motion for summary judgment was based on no-evidence and traditional grounds.

Murray filed his First Amended Original Petition on September 7, 2017, which contained nearly

identical factual allegations and causes of action as those in his Original Petition.3 The trial court

denied White and Nabors’ original motion for summary judgment on December 4, 2017.

         After conducting further discovery, White and Nabors filed their amended motion for

summary judgment (the “Amended Motion”) alleging, primarily, they did not owe a duty as a

matter of law to warn other drivers on the road, including the driver of the car Murray was riding

in, of the presence of the disabled vehicle on the shoulder. They argued that if the trial court

determined they owed a duty to Murray, that duty was not breached based on the facts presented

in the summary judgment evidence. White and Nabors also argued that Murray could not prove

proximate cause since the incident occurred on the shoulder of the road between Seymour’s vehicle




2
  Although Murray did not explicitly plead premises liability as the basis for his claims against White and Nabors, his
allegations that they owed him a duty to warn of a dangerous condition on the shoulder of the roadway implicates
premises liability rather than negligent activity. See, e.g., City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986)(a
person who creates a dangerous condition on a public road has a duty to warn the public of the condition); Strakos v.
Gehring, 360 S.W.2d 787, 795-96 (Tex. 1962). Additionally, there was no activity occurring concurrently at the time
of the accident that is alleged to have been the cause of the incident; it was simply the presence of the vehicles on the
shoulder of the road that Murray claims constituted a dangerous condition. It is therefore a premises defect case and
not a negligent activity case. See Keetch v. Kroger, Co., 845 S.W.2d 262, 264 (Tex. 1992).
3
  Plaintiff’s First Amended Original Petition lists Seymour as a defendant in the suit, but acknowledges Seymour’s
dismissal from the case and states he is no longer pursuing his claims against Seymour.
                                                           4
and Gomez’s vehicle. Finally, they argued that no evidence existed to prove they violated

Sections 545.301(a) and 545.303(a) of the Texas Transportation Code.

       The trial court granted the Amended Motion on October 11, 2018, finding there were no

genuine issues of material fact and as a matter of law Murray’s claims against White and Nabors

were without merit, and dismissed Murray’s claims against them with prejudice.

       Contemporaneous with the filing of the order granting the Amended Motion, the trial court

entered a default judgment against Gomez on October 11, 2018. It thus appears that as of that

time, all outstanding parties and claims had been disposed of. Murray filed notice of his appeal

on October 25, 2018.

                                          DISCUSSION

       Murray raises two issues on appeal: (1) the trial court erred in granting White and Nabor’s

Amended Motion because Murray presented sufficient summary judgment evidence to raise a

genuine issue of material fact regarding their negligence; and (2) the trial court erred in granting

White and Nabor’s Amended Motion because Murray presented sufficient summary judgment

evidence to raise a genuine issue of material fact regarding their alleged violations of Texas

Transportation Code Sections 545.301(a) and 545.303(a).

                                       Standard of Review

       We review de novo a trial court’s granting of a motion for summary judgment. Merriman

v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). A motion for summary judgment must

state specific grounds upon which it is based. See TEX.R.CIV.P. 166a(c), (i). When, as here, the

trial court does not specify the grounds for its ruling, a summary judgment must be affirmed if any

of the grounds on which judgment was sought are meritorious. Merriman, 407 S.W.3d at 248.


                                                 5
All grounds raised at the trial court level and preserved on appeal are reviewed by the appellate

court in the interest of judicial economy. Neely v. Wilson, 418 S.W.3d 52, 60 (Tex. 2013).

       We must decide the nature of Murray’s Amended Motion in order to apply the proper

summary judgment standard. See Rodgers v. Weatherspoon, 141 S.W.3d 342, 344 (Tex.App.—

Dallas 2004, no pet.). The “nature of a motion is determined by its substance,” not its title. In

re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008). This same is true in determining

whether a motion for summary judgment is no-evidence or traditional. See Rodgers, 141 S.W.3d

at 344 (citing State Bar v. Heard, 603 S.W.2d 829, 833 (Tex. 1980)). When both parties offer

evidence at the summary judgment phase, the ultimate question is whether a fact issue exists.

Neely, 418 S.W.3d at 59.

       Although not explicitly titled as such, White and Nabor’s Amended Motion purports to be

based on the traditional standard by citing to Rule 166a(b). Their arguments concerning duty and

proximate cause on Murray’s negligence cause of action follows the traditional standard.

However, the Amended Motion makes repeated references that Murray has no evidence to support

one or more elements of his claim for negligence per se for violations of the Texas Transportation

Code. Accordingly, we analyze Murray’s negligence claim under a traditional standard, and the

negligence per se claims regarding Texas Transportation Code Sections 545.301(a) and 545.303(a)

under first a no-evidence and then, if necessary, a traditional standard. See Cmty. Health Sys.

Prof’l Services Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017); Lightning Oil Co. v. Anadarko

E & P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).

                                           Negligence

       A.      Traditional Motion for Summary Judgment


                                                6
        In a traditional motion for summary judgment, summary judgment is appropriate when the

movant shows that there is no genuine issue of material fact and that it is entitled to judgment as a

matter of law. TEX.R.CIV.P. 166a. In deciding whether a genuine issue precludes summary

judgment, we must treat all evidence favorable to the non-movant as true and indulge every

reasonable inference and resolve all doubts in its favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d

211, 215 (Tex. 2002). When a defendant conclusively negates at least one element of the

plaintiff’s cause of action or conclusively establishes all elements of an affirmative defense, the

defendant is entitled to summary judgment. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347,

355 (Tex. 1995). Upon such showing, the non-movant bears the burden to present evidence

raising an issue of material fact as to each of the elements challenged. Rodriguez v. Cemex, Inc.,

579 S.W.3d 152, 160 (Tex.App.—El Paso 2019, no pet.). The nonmoving party is not required

to marshal all its proof in response to a summary judgment motion, but must present evidence that

raises a genuine issue of material fact on each of the challenged elements. Stierwalt v. FFE

Transp. Services, Inc., 499 S.W.3d 181, 194 (Tex.App.—El Paso 2016, no pet.). If a plaintiff

fails to raise a genuine issue of material fact as to any challenged element, the trial court must grant

the motion. See Stierwalt, 499 S.W.3d at 194.

        B.      Summary Judgment Evidence

        As an initial matter, we find it worthwhile to address conflicting evidence offered by

Murray in his deposition testimony and subsequent summary judgment affidavit. Plaintiff’s

deposition testimony on April 25, 2018, was that he was not looking forward in the moments

preceding the accident and would not have been able to see whether Gomez’s vehicle or Nabors’




                                                   7
vehicle had lights, reflectors or other visible warning signs on it. He confirmed that he had no

knowledge of whether either vehicle was marked or lighted.

       Subsequently, on August 23, 2018, Murray executed an affidavit stating that he had

personal knowledge that Gomez’s truck did not have any operational lights or other warning

signals prior to the incident occurring. He further swore that the vehicle White was driving “had

no flag or other signals to warn the oncoming traffic of its presence on the roadway.” These

statements directly contradict his sworn deposition testimony taken four months earlier where he

explicitly stated that he did not have any knowledge of whether either vehicle was lit or marked.

It also contradicts White’s testimony that the Nabors truck had its hazard flashers on. It is

undisputed that Gomez’s truck did not have any operational lights at the time of the incident.

However, there is evidence that Gomez’s trailer had reflective markers on the rear.

       Where the content of an affidavit offered as summary judgment evidence contradicts sworn

deposition testimony taken previously by the same witness without any explanation, and the

affidavit is offered as summary judgment evidence, the affidavit is considered a sham and cannot

be used to create a fact issue to defeat summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d

79, 88 (Tex. 2018). However, objections to the form or contents of an affidavit as summary

judgment evidence must be made in writing and ruled upon by the trial court in order to preserve

the issue for appeal. See TEX.R.CIV.P. 166a(c).

       Although White and Nabors pointed out the contradiction in their reply in support of

summary judgment, they did not file written objections to the affidavit or move to strike it from

the summary judgment evidence, and the trial court did not enter an order regarding any objections.

A review of the clerk’s record and the reporter’s record from the hearing on the amended motion


                                                8
for summary judgment reveals that White and Nabors filed written objections to the content of

Murray’s affidavit in response to their first motion for summary judgment, but the court never

entered an order ruling on those objections and “overruled” White and Nabors’ first motion for

summary judgment on December 4, 2017. Accordingly, there is a fact issue as to whether

Gomez’s trailer had reflective markers, or the hazard flashers were in use on the Nabors truck.

Whether that fact issue is a material issue of fact to preclude summary judgment will be addressed

subsequently in our opinion.

         C.       Legal Duty

         In his first issue, Appellant argues that the trial court erred in granting summary judgment

because a genuine issue of fact exists regarding whether White and Nabors owed Murray a duty

to warn of Nabors’ and Gomez’s vehicles on the highway shoulder. In a negligence cause of

action, duty is a “threshold inquiry” that must be answered at the outset before liability can be

imposed. Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017). Whether a duty

exists is a question of law decided by the court after considering the facts in the case. See id.

         Murray alleges that White and Nabors owed a duty to Murray to “put[] up a triangle, lights,

flagman, and any other communications and notices of a potential danger.” This statement

implies that White and Nabors owed a duty to warn the public of the presence of not only the

Nabors vehicle’s presence on the shoulder, but Gomez’s disabled vehicle on the shoulder as well.

White and Nabors’ Amended Motion and Murray’s response refer multiple times to White and

Nabors’ alleged duty to warn regarding the presence of the “vehicles” on the shoulder, presumably

referring to both the Nabors truck and Gomez’s truck and attached trailer. 4 Accordingly, we


4
  Murray’s Petition alleges that White had a “duty to give visible signals to warn oncoming traffic” of the presence of
the truck-trailer. It also alleges that White “was negligent in failing to flag or otherwise warn oncoming traffic of the
                                                           9
address only whether White and Nabors owed Murray, a member of the general public, a duty to

warn of the two vehicles on the shoulder.

        In considering whether a duty should be imposed on a defendant, a court considers a

number of factors including “risk, foreseeability, and likelihood of injury weighed against the

social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury,

and the consequences of placing the burden on the defendant.” [Internal quotations omitted].

Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 710 (Tex. 2003). A defendant

assumes a duty of care to a plaintiff to warn of and remedy any dangerous condition he creates.

See SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex. 1995); Buchanan v. Rose, 159

S.W.2d 109, 110 (Tex. 1942). However, where a bystander did not create the situation that caused

the incident, the bystander is not obligated as a matter of law to undertake any action to prevent

injury to others, even when he or she is aware of the risk. See Buchanan, 159 S.W.2d at 110.

        We look first at what unreasonably dangerous condition allegedly caused the accident to

determine whether White or Nabors created it. Murray alleges that, despite being located on the

shoulder, both Gomez’s truck and trailer and the Nabors truck constituted dangerous conditions

because neither was marked or readily visible. There is no disagreement that the vehicle in which

Murray was a passenger veered off the road and onto the shoulder in the instant preceding the

incident. There is also no disagreement that the vehicle Murray rode in struck only Gomez’s

trailer, and at no point made any contact with the Nabors truck. There is thus no reasonable

inference we can draw that would lead to concluding the Nabors truck was the alleged dangerous

condition since it played no role in either the occurrence of the accident nor the injuries to Murray.



presence of [the Nabors vehicle] on the roadway and creates [sic] a dangerous condition on highway.”
                                                       10
We thus proceed in our duty analysis operating under the only reasonable factual inference we can

draw from Murray’s allegations and the summary judgment evidence—that Gomez’s vehicle, not

the Nabors truck driven by White, constituted the alleged unreasonably dangerous condition.5

        Neither White nor Nabors played any role in causing Gomez’s vehicle to become disabled

on the shoulder of the road and thus create the allegedly dangerous condition. Gomez’s vehicle

became disabled and Gomez pulled it onto the shoulder at some point before White came upon

Gomez’s location. Thus, it appears White was simply a bystander who had no duty to undertake

any action to prevent the incident from occurring. See Buchanan, 159 S.W.2d at 110.

        We must consider whether White’s decision to pull over and assist Gomez imposed upon

him some duty to act. Once a third party, although not legally obligated to do so, undertakes a

course of action in another’s interest, he then assumes a duty to act and do so with reasonable care.

See Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983)(citing Colonial Savings

Ass’n v. Taylor, 544 S.W.2d 116, 119-20 (Tex. 1976)). This tenet of law adopted by the courts

in Texas is based upon the Second Restatement of Torts, Sections 323 and 324A. See Colonial

Sav. Ass’n, 544 S.W.2d at 119-20 (discussing Section 323); Fort Bend County Drainage Dist. v.

Sbrusch, 818 S.W.2d 392, 395-96 (Tex. 1991)(discussing Section 324A). Section 323 states that

one who undertakes the rendition of services necessary to protect the other’s person or things may

be liable for resulting physical harm from a failure to exercise reasonable care to perform those

services, if (a) the failure to exercise reasonable care increases the risk of harm, or (b) the harm is

suffered because the other relied upon the defendant’s undertaking of the services. RESTATEMENT

(SECOND)     OF   TORTS § 323 (Am. Law Inst. 1965).                 Section 324A states that a defendant


5
  We make no finding on whether the presence of Gomez’s truck and trailer on the shoulder of the highway constituted
an unreasonably dangerous condition as a matter of law.
                                                        11
undertaking to render services to another that the defendant should recognize as necessary to

protect a third person or the third person’s things is liable to the third person for physical injury

for failing to exercise reasonable care if (a) the risk of harm to the third person is increased, or (b)

the defendant undertakes to perform a duty owed by the assisted person to the third person, or (c)

the third person is harmed because he relied upon the defendant’s undertaking.                      See

RESTATEMENT (SECOND)        OF   TORTS § 324A (Am. Law Inst. 1965); see also Golden Spread

Council, Inc. No. 562 of Boy Scouts of America v. Akins, 926 S.W.2d 287, 291 (Tex. 1996)(stating

that persons have a duty to avoid undertaking an action that might worsen a situation or increase

the risk of harm to others).

        The facts of this case do not support a claim for negligent undertaking. Murray’s pleading

makes no reference to negligent undertaking explicitly or impliedly. Additionally, we are not

convinced that offering to assist a person whose vehicle is disabled outside of the lane of travel is

considered undertaking services “necessary for the protection of [another’s] person or things” as

set forth in the Restatement as much as it is a kind deed to lessen the inconvenience of a stranded

motorist. See Colonial Sav. Ass’n, 544 S.W.2d at 120 (citing RESTATEMENT (SECOND) OF TORTS

§ 323 (Am. Law Inst. 1965)). Texas law is clear that to succeed in a negligent undertaking claim,

the services the defendant undertakes to perform are for the benefit of the plaintiff, whether the

plaintiff is the person being assisted or a third party. See Torrington Co. v. Stutzman, 46 S.W.3d

829, 838 (Tex. 2000); Sbrusch, 818 S.W.2d at 395-96. There is no evidence that White sought to

assist Gomez in jumping his vehicle for the benefit of Murray. The evidence instead shows that

White pulled over to assist Gomez because he was a “kid” who appeared in need of help, and




                                                  12
White was worried after he observed Gomez walking between his vehicle and the solid white lane

marker on the right shoulder, instead of on the side of his truck further away from traffic.

       There is likewise no evidence that White’s assistance to Gomez increased the likelihood of

harm to Murray. Gomez’s vehicle and trailer were in an identical state after White tried to help

when the incident occurred as they were before White pulled over. If, as Murray alleges in his

affidavit, neither Gomez’s truck nor trailer had any operational lights or other warning signal to

notify approaching motorists of its presence on the shoulder, then White’s presence on the shoulder

in the Nabors truck in front of Gomez’s vehicle neither worsened nor bettered visibility of Gomez’s

truck to others on the road. There is no evidence that White undertook any duty owed by Gomez

to Murray because at the time of the accident, White merely sought to assist Gomez in getting his

vehicle operational, which is not a duty that Gomez owed to Murray as a member of the public.

Finally, there is no evidence that Murray’s injuries resulted from his reliance upon White’s

assistance to Gomez. Murray testified at his deposition that he did not have any knowledge that

any vehicles were present on the shoulder prior to the incident. Accordingly, there is no evidence

suggesting Murray knew White was trying to help Gomez restart his vehicle or that his reliance on

that fact resulted in his injuries. We therefore find no basis to impose a duty on White or Nabors

under a negligent undertaking cause of action.

       Finally, we consider the “risk, foreseeability, and likelihood of injury weighed against the

social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury,

and the consequences of placing the burden on the defendant” to determine whether there is any

other basis to impute a duty to White to warn of Gomez’s truck and trailer. [Internal quotations

omitted]. Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 710 (Tex. 2003).


                                                 13
Foreseeability of the risk is the primary factor to consider. Greater Hous. Transp. Co. v. Phillips,

801 S.W.2d 523, 525 (Tex. 1990). Harm is foreseeable if a person with average intelligence

should have appreciated the danger created by the act complained of. See Bos v. Smith, 556

S.W.3d 293, 303 (Tex. 2018).

        Driving at night in the dark on remote Texas highways carries a certain inherent risk.

When a vehicle becomes disabled, even when pulled completely off the roadway as was the case

here, the risk to the occupants of that vehicle increases. It is foreseeable that inattentive, impaired,

or otherwise unwary drivers could drift off the roadway and strike a vehicle on the shoulder.

However, the risk is the driver traveling outside of the roadway, not the presence of a vehicle on

the side of the road, whether lit or unlit. Absent the negligence or recklessness of another--or a

wholly unforeseeable act of God--a stranded motorist outside the lane of travel would remain safe

from most forms of peril presented by the traveled roadway. However, the risk posed to stranded

operators would only increase if courts began imposing liability on benevolent persons who,

without creating or exacerbating the conditions leading to an accident, sought to assist those in

need.

        There is little doubt that if White had carried on his way and not stopped to assist Gomez,

neither he nor his employer would be named in this lawsuit. Indeed, White testified that he

witnessed at least two other vehicles pass Gomez’s stalled truck who did not stop and assist, and

neither was made a party to Murray’s lawsuit. Texas law would not impute any duty to White or

Nabors to warn other motorists of the presence of Gomez’s truck on the shoulder simply because

he was aware of the potential danger posed by it being there. See Buchanan, 159 S.W.2d at 110.

Murray would have us place a duty on White and his employer to warn of a condition he neither


                                                  14
created nor worsened, when he did not undertake to assume any such duty, simply because he

chose to help a person in need. We decline to do so.

       As it pertains to Murray’s allegations that White owed a duty to warn of the presence of

the Nabors vehicle on the shoulder of the road, there may be some factual circumstances that would

warrant such a finding. See Reinicke v. Aeroground, Inc., 167 S.W.3d 385, 388 (Tex.App.—

Houston [14th Dist.] 2005, pet. denied)(discussing statutory duty to warn regarding disabled

commercial vehicles). As previously discussed, there is no reasonable inference to be made from

the facts in this case that the Nabors vehicle was the dangerous condition that allegedly caused the

incident to occur. We are not aware of any case law in Texas or any other jurisdiction that

imposes a duty on a person to warn about a benign condition that plays no role in an accident.

However, without deciding whether White owed a duty to warn the public of the Nabors vehicles’

presence on the shoulder, we find that the Nabors vehicle’s location was not the proximate cause

of the incident and thus any duty White may have had to warn of its location is rendered

inconsequential.

       We make no determination as to whether Gomez’s truck and trailer constituted an

unreasonably dangerous condition, nor do we make any finding as to the proximate cause of the

accident that resulted in Murray’s injuries. We find only that (1) White did not owe a duty to

warn Murray or anyone else of the presence of Gomez’s vehicle on the roadway, and (2) even if

White owed a duty to warn regarding his own vehicle, the alleged breach of that duty is immaterial

because White’s vehicle was not the condition that made the accident possible. The factual

dispute over whether the Nabors truck used flashers to alert of its location is not a material fact

issue since we find any failure on White’s part to be inconsequential in causing the incident. The


                                                15
trial court properly granted summary judgment against Murray on his claims for negligence against

White and Nabors because there is no material issue of fact to preclude summary judgment. We

therefore overrule Appellant’s fist issue.

                                         Negligence Per Se

A.     No-Evidence Summary Judgment

       A no-evidence motion for summary judgment asserts there is no evidence of one or more

essential elements of the claims for which the nonmovant bears the burden of proof at trial.

TEX.R.CIV.P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). When (1)

there is a complete lack of evidence of a vital fact, (2) the court is barred from giving weight to

the only evidence offered to prove a vital fact, (3) the evidence offered by the nonmovant to prove

a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite

of the vital fact, a court should grant a no-evidence motion for summary judgment. See City of

Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). A no-evidence summary judgment is

improperly granted if the nonmovant brings forth more than a scintilla of probative evidence to

raise a genuine issue of material fact as to the challenged cause of action. See King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). When the evidence exceeds the level at which

reasonable persons could arrive at differing conclusions, more than a scintilla of evidence exists.

       In his second issue, Murray argues the trial court erred in finding no genuine issues of

material fact exist regarding White and Nabors’ alleged violations of the Texas Transportation

Code. Murray alleges that White and Nabors violated Sections 545.301(a) and 545.303(a) of the

Texas Transportation Code and that such violations proximately caused the injuries suffered by

Murray. Although he does not plead so explicitly, we construe Murray’s pleadings to mean that


                                                  16
liability should be imposed to White and Nabors under a negligence per se theory for violation of

the referenced statutes.

         Negligence per se is proven by showing, among other things, that the defendant violated a

statute for which tort liability may be imposed, without excuse, and that the act in violation of the

statute proximately caused the plaintiff’s injury. See Perry v. S.N., 973 S.W.2d 301, 305 (Tex.

1998).

B.       Texas Transportation Code Section 545.301(a)

Section 545.301(a) of the Texas Transportation Code reads,

         An operator may not stop, park, or leave standing an attended or unattended vehicle
         on the main traveled part of a highway outside a business or residence district
         unless:

         (1) stopping, parking, or leaving the vehicle off the main traveled part of the
         highway is not practicable;

         (2) a width of highway beside the vehicle is unobstructed and open for the passage
         of other vehicles; and

         (3) the vehicle is in clear view for at least 200 feet in each direction on the highway.

TEX.TRANSP.CODE ANN. § 545.301(a).

         We find there is no evidence to suggest that White and Nabors violated Section 545.301(a)

of the Texas Transportation Code. Although a photograph from the scene after the incident shows

that a portion of the Nabors truck is in the traveled lane of the highway, White’s uncontroverted

testimony is that he pulled completely off the traveled roadway and onto the shoulder of the road

to assist Gomez prior to the incident occurring. This testimony is corroborated by the narrative

in the police report on the accident. White also testified that the force of Seymour’s vehicle

impacting Gomez’s trailer pushed Gomez’s truck into the Nabors truck and moved the vehicle

backwards approximately thirty feet.
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       Furthermore, even if White violated Section 545.301(a), there is no evidence of proximate

cause, which is a requirement to succeed in a claim of negligence per se. See Mo. Pac. R.R. Co.

v. Am. Statesman, 552 S.W.2d 99, 103 (Tex. 1977). Since Seymour’s vehicle did not make

contact with the Nabors truck and, rather, traveled outside the designated lane of travel onto the

shoulder of the road and struck Gomez’s trailer, we find there is no evidence that any alleged

violation of Section 545.301(a) by White caused or contributed in any way to the accident

occurring. We find there is no evidence of a violation of the statute in question or proximate

cause, and affirm summary judgment in favor of White and Nabors on this claim.

C.     Texas Transportation Code Section 545.303(a)

       Section 545.303(a) of the Texas Transportation Code states, “[a]n operator who stops or

parks on a two-way roadway shall do so with the right-hand wheels of the vehicle parallel to and

within 18 inches of the right-hand curb or edge of the roadway.” TEX.TRANSP.CODE ANN.

§ 545.303(a). As discussed at length previously, there is no evidence that White parked on the

traveled portion of the roadway of FM 181 at all, let alone in violation of Section 545.303(a). If

he had parked on the roadway in accordance with this section, he would have been completely

blocking the lane of travel which undoubtedly would have been more dangerous than his actual

location on the shoulder of the road. Moreover, regardless of how the Nabors vehicle was

positioned on the roadway or the shoulder, it was not a factor in causing the incident between

Seymour’s vehicle and Gomez’s trailer. Thus, to the extent there was any violation of Section

545.303(a), Murray cannot and has not shown that such violation, if any, proximately caused the

accident. We find there is no evidence of a violation of the statute in question or proximate cause




                                                18
and affirm summary judgment in favor of White and Nabors on this claim. We therefore overrule

Appellant’s second issue.

                                         CONCLUSION

         There is no legal basis to impute a duty to warn on a bystander who did not create the

condition that contributed to the accident, did not exacerbate that condition, did not agree to

assume a duty owed by the person who did create the condition, and in no way caused or

contributed to causing the accident that forms the basis of the suit. White and Nabors did not owe

a duty to warn the public about the presence of Gomez’s truck or trailer on the shoulder.

Furthermore, without deciding whether White and Nabors owed a duty to warn regarding the

presence of the Nabors vehicle on the shoulder, any alleged breach of that duty is immaterial

because the Nabors vehicle was a benign condition that did not contribute to causing the incident.

We find that White and Nabors did not undertake a duty to third persons to warn about the presence

of Gomez’s truck and trailer by agreeing to assist Gomez in restarting his vehicle. We find that

there is no issue of material fact concerning Murray’s claim of negligence and summary judgment

was properly rendered in favor of White and Nabors.

         We further find that there is no evidence that White and Nabors violated either Section

545.301(a) or 545.303(a) of the Texas Transportation Code; and, even if such violation occurred,

it did not proximately cause the accident that injured Murray. Therefore, summary judgment was

properly rendered on Murray’s claims of negligence per se.

         Having overruled both of Appellant’s issues on appeal, we affirm the judgment of the trial

court.




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January 24, 2020
                                             YVONNE T. RODRIGUEZ, Justice

Before Alley, C.J., Rodriguez, and Palafox, JJ.




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