                                                               WITHDRAWN 8/27/15
                                                               REISSUED 8/27/15




                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-14-00349-CV

ROBERT WILLIAMS,
                                                              Appellant
v.

RUSSELL PARKER, INDIVIDUALLY AND
HEIR OF LAWANNA KEETH,
                                                              Appellee



                            From the 249th District Court
                               Johnson County, Texas
                             Trial Court No. C201100640


                                      OPINION


       Our opinion and judgment in this appeal dated June 25, 2015 are withdrawn.

This opinion and judgment are substituted in its place.

       Lawanna Keeth was killed in a car accident. She crossed into oncoming traffic

and struck a tractor-trailer, head-on. Keeth had diabetes, and her blood sugar was low

at the scene of the accident. She died later at a hospital. The driver of the tractor-trailer,
Robert Williams, was injured in the accident. He sued Russell Parker, individually and

as Keeth’s heir, for negligence, negligence per se, and negligent entrustment. Parker

filed a combined traditional and no-evidence motion for summary judgment which the

trial court granted. Because the trial court erred in granting the motion, the trial court’s

judgment is reversed; and this case is remanded for further proceedings.

SUMMARY JUDGMENT REVIEW

       We review a grant of a motion for summary judgment de novo. KCM Fin. LLC v.

Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015); Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013).

In a traditional motion for summary judgment, a movant must state specific grounds,

and a defendant who conclusively negates at least one essential element of a cause of

action or conclusively establishes all the elements of an affirmative defense is entitled to

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Id. In a no-evidence motion for

summary judgment, the movant contends that no evidence supports one or more

essential elements of a claim for which the nonmovant would bear the burden of proof

at trial. TEX. R. CIV. P. 166a(i); KCM Fin. LLC, 457 S.W.3d at 79. The trial court must

grant the motion unless the nonmovant raises a genuine issue of material fact on each

challenged element. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing TEX. R.

CIV. P. 166a(i)). If the order granting the motion for summary judgment, such as the one

in this case, does not specify the grounds upon which judgment was rendered, we must

affirm the judgment if any of the grounds in the motion for summary judgment is

meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000);

Williams v. Parker                                                                    Page 2
Lotito v. Knife River Corporation-South, 391 S.W.3d 226, 227 (Tex. App.—Waco 2012, no

pet.).

         Further, if a no-evidence motion for summary judgment and a traditional motion

for summary judgment are filed which respectively asserts the plaintiff has no evidence

of an element of its claim and alternatively asserts that the movant has conclusively

negated that same element of the claim, we address the no-evidence motion for

summary judgment first. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004);

Lotito, 391 S.W.3d at 227. The amended motion for summary judgment filed by Parker

addressed the three causes of action raised by Williams’ petition: ordinary negligence,

negligence per se, and negligent entrustment. Parker asserts a traditional motion for

summary judgment as to the ordinary negligence claim, a no-evidence and a traditional

motion for summary judgment as to the negligence per se claim, and a no-evidence

motion for summary judgment as to the negligent entrustment claim.             Only the

traditional and no-evidence motion for summary judgment as to the negligence per se

claim addresses the same element. Thus, we will consider the motion for summary

judgment as to each cause of action, separately; and, while considering the negligence

per se cause of action, we will discuss the no-evidence motion for summary judgment

first.

Negligence

         Williams alleged in his first amended petition that Keeth failed to use ordinary

care while operating a motor vehicle which was a proximate cause of the accident. The

Williams v. Parker                                                                 Page 3
elements of a negligence cause of action are the existence of a legal duty, a breach of

that duty, and damages proximately caused by the breach. IHS Cedars Treatment Ctr. of

Desoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).       The components of

proximate cause are cause-in-fact and foreseeability. See Western Invs. v. Urena, 162

S.W.3d 547, 551 (Tex. 2005); Mason, 143 S.W.3d at 798.

       Parker contends he conclusively established the defense of “unforeseeable

incapacity,” and thus, summary judgment was proper. In support of this defense,

Parker cites to two cases which state:

       Unforeseeable incapacity as a bar to liability in negligence is based
       upon the principle that one is not negligent if an unforeseeable
       occurrence causes an injury. Under traditional negligence theory, it
       follows that [the defendant] was not negligent if he were incapacitated
       before the collision, the incapacity caused the collision, and his
       incapacitation was not foreseeable.

Piatt v. Welch, 974 S.W.2d 786, 788 (Tex. App.—El Paso 1998, no pet.); Harvey v.

Culpepper, 801 S.W.2d 596, 598 (Tex. App.—Corpus Christi 1990, no writ).

       Parker contends that there is no more than a scintilla of evidence to defeat his

motion for summary judgment because the evidence presented shows that Keeth “lost

conscious control” over her vehicle. In his brief, Parker scoffs at Williams for confusing

loss of conscious control with unconsciousness. However, Parker misunderstands the

defense of unforeseeable incapacity. The cases Parker cites, and those authorities relied

upon by those cases, are premised on whether or not the person causing the accident

lost consciousness at the time of the accident, not whether the person lost “conscious


Williams v. Parker                                                                  Page 4
control” of the vehicle at the time of the accident. See Piatt v. Welch, 974 S.W.2d 786, 795

(Tex. App.—El Paso 1998, no pet.); Harvey v. Culpepper, 801 S.W.2d 596, 597-598 (Tex.

App.—Corpus Christi 1990, no writ) First City Nat’l Bank v. Japhet, 390 S.W.2d 70, 74-75

(Tex. Civ. App.—Houston 1965, writ dism’d w.o.j.). See also ANNOTATION, Liability for

Automobile Accident Allegedly Caused by Driver's Blackout, Sudden Unconsciousness, or the

Like, 93 A.L.R. 3d 326, n. 3 (1979) (“Cases within the scope of this annotation are limited

to those in which it was established or hypothesized that a driver lost consciousness

prior to the occurrence of the accident.…”).1                  Generally, if the person causing the

accident lost consciousness and that loss of consciousness was unforeseeable, the

defense would apply. See id.

           There is some evidence in this case that Keeth did not lose consciousness before

the accident.        Williams stated in his affidavit and deposition that right before the

impact, Keeth’s head was positioned straight toward him and her eyes were open.

Also, Williams stated he could see Keeth maneuvering her steering wheel to keep her

vehicle headed straight. Peter Hardy stated in a witness statement given to Cleburne

police that Keeth was in the car in front of him; that she was weaving from one

shoulder of the roadway to the other, but going the normal rate of speed; and that when

Hardy tried to get closer to Keeth to get a license plate number, Keeth’s vehicle speed

up. Further, even if Keeth lost consciousness, there is some evidence that Keeth’s loss of

consciousness was foreseeable. Parker stated in his deposition that he did not know if


1   This particular annotation was cited by the court in Harvey v. Culpepper.

Williams v. Parker                                                                           Page 5
Keeth took her insulin regularly; Keeth previously had diabetic episodes due to low

blood sugar on at least three occasions in the two years before the accident where she

either lost consciousness or was immobile but with her eyes open; and Keeth had candy

with her to be prepared for such events. This evidence is enough to raise a fact question

as to whether Parker conclusively established his defense. Thus, the trial court erred in

granting Parker’s traditional motion for summary judgment regarding Williams’

ordinary negligence cause of action on the defense as alleged.

Negligence per se

       Williams also alleged in his first amended petition that Keeth was negligent per

se in violating a traffic statute, and such negligence was a proximate cause of the

accident.    Under the common law, one person owes another the duty to act as a

reasonably prudent person would act under the same or similar circumstances

regarding any reasonably foreseeable risk. Colvin v. Red Steel Co., 682 S.W.2d 243, 245

(Tex. 1984); Great Atl. & Pac. Tea Co. v. Evans, 175 S.W.2d 249, 250-51 (1943); Kelly v.

Brown, 260 S.W.3d 212, 218 (Tex. App.—Dallas 2008, pet. dism’d). However, "[w]here

the Legislature has declared that a particular act shall not be done, it fixes a standard of

reasonable care, and an unexcused violation of the statute constitutes negligence or

contributory negligence as a matter of law." Mo. Pac. R.R. Co. v. Am. Statesman, 552

S.W.2d 99, 103 (Tex. 1977); Kelly, 260 S.W.3d at 218. The doctrine under which courts

rely on a penal statute to define a reasonably prudent person's standard of care is

referred to as negligence per se. Reeder v. Daniel, 61 S.W.3d 359, 361-62 (Tex. 2001).

Williams v. Parker                                                                       Page 6
       Generally, the litigant alleging negligence per se as a ground of recovery must

assume the burden of proving a statutory violation. Moughon v. Wolf, 576 S.W.2d 603,

604 (Tex. 1978); Missouri P. R. R. Co. v. American Statesman, 552 S.W.2d 99, 102

(Tex.1977); L. M. B. Corporation v. Gurecky, 501 S.W.2d 300 (Tex.1973). The typical

submission of such a case includes an issue inquiring whether the party charged is

actually guilty of legislatively proscribed conduct along with an issue inquiring

whether the violative conduct was the proximate cause of the accident. Moughon v.

Wolf, 576 S.W.2d at 604. The violator may excuse his conduct, but he must produce

some evidence of a legally acceptable excuse.        Id. at 604-605.   Based upon the

Restatement of Torts, Second (1965), section 288A, the Texas Supreme Court has

recognized an actor’s incapacity as a legally acceptable excuse. Impson v. Structural

Metals, Inc., 487 S.W.2d 694, 696 (Tex. 1972). Such "incapacity" could be a driver who is

rendered physically incapable because of a health issue. Id.

       Prior to asserting the grounds for his no-evidence and traditional motion for

summary judgment as to Williams’ negligence per se cause of action, Parker, relying on

the Amarillo Court of Appeals’ opinion in Hoppe v. Hughes, 577 S.W.2d 773, 775 (Tex.

Civ. App.—Amarillo 1979, writ ref’d n.r.e.), placed the burden on Williams, as an

element of Williams’ case, to prove the alleged statutory violation was “unexcused.”

The Amarillo Court was incorrect in placing the burden on a plaintiff claiming

negligence per se that the violation was unexcused. The Supreme Court’s opinion in

Wolf places the burden to prove the violation was excused on the violator; in this case,

Williams v. Parker                                                                 Page 7
Parker. Wolf, 576 S.W.2d at 604-605.

       Parker asserted there was no evidence Keeth’s statutory violation was

unexcused. Because Williams did not have the burden to prove this element, the trial

court’s granting of Parker’s no-evidence motion for summary judgment as to this cause

of action was erroneous. See TEX. R. CIV. P. 166a(i); Kelly v. Brown, 260 S.W.3d 212, 218

(Tex. App.—Dallas 2008, pet. dism’d) (“appellees may not obtain summary judgment

under rule 166a(i) based on the elements of their negligence per se affirmative

defense.”).

       Parker also contended that because his expert’s affidavit and the Cleburne Police

Department investigation established Keeth was incapacitated due to her loss of

“conscious control” and that incapacitation was unforeseeable, Parker was entitled to a

judgment as a matter of law on the traditional motion for summary judgment. As

stated previously, Parker incorrectly placed the burden on Williams to prove whether

the violated statute was unexcused. Thus, Parker presumed his evidence conclusively

negated an essential element of Williams’ negligence per se cause of action. Whether

the violated statue was excused or unexcused was not an essential element Williams

had to prove; thus, the trial court erred in granting a traditional motion for summary

judgment on the basis that Parker conclusively negated an essential element of

Williams’ negligence per se cause of action.2



2We do not decide whether Parker conclusively established all the elements of this affirmative defense
because he did not raise this as a ground for summary judgment in this motion. A trial court cannot

Williams v. Parker                                                                             Page 8
Negligent Entrustment

       Lastly, Williams alleged in his first amended petition that Parker was “guilty of

negligent entrustment” because he knew or should have known Keeth was a “negligent

and reckless driver.” The elements of negligent entrustment are: (1) entrustment of a

vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the

owner knew or should have known to be 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. Williams v. Steves Industries, Inc., 699 S.W.2d 570, 571

(Tex. 1985). Parker asserted there was no evidence of the second through the fifth

element.

       Parker submitted evidence with his motion for summary judgment that Keeth

had a valid driver’s license. He then asserted that a valid driver’s license is “prima facie

evidence of [Keeth’s] competence to drive, which negates the entruster’s knowledge of

incompetence or recklessness.” This is only partially correct. The possession of a valid,

unrestricted driver's license is evidence of a driver's competency absent any evidence

to the contrary. Batte v. Hendricks, 137 S.W.3d 790, 791 (Tex. App.—Dallas 2004, pet.

denied); Avalos v. Brown Auto. Ctr., Inc., 63 S.W.3d 42, 48 (Tex. App.—San Antonio 2001,

no pet.); Bartley v. Budget Rent-A-Car Corp., 919 S.W.2d 747, 752 (Tex. App.—Amarillo



grant summary judgment on grounds that were not presented. Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex.
2013).

Williams v. Parker                                                                             Page 9
1996, writ denied).

       Williams attached Parker’s deposition testimony to his response to Parker’s

motion for summary judgment. In that testimony, Parker stated that he did not know if

Keeth took her insulin regularly; Keeth previously had diabetic episodes due to low

blood sugar on at least three occasions in the two years before the accident where she

either lost consciousness or was immobile but with her eyes open, including an incident

one month prior to the accident where she passed out at Parker’s house due to low

blood sugar; and Keeth had candy with her to be prepared for such events. This is

some evidence to rebut the presumption of competency and create a fact question as to

whether Keeth was an incompetent driver and whether Parker knew or should have

known she was an incompetent driver.

       Parker then relied on his arguments attacking Williams’ negligence cause of

action to assert there was no evidence Keeth was negligent because she had lost

conscious control of her actions and that loss of conscious control was unforeseeable.

Parker’s assertion of unforeseeable incapacity is a defense which Williams had no

burden to prove or disprove. Presenting a no-evidence motion for summary judgment

on an element which a nonmovant has no burden to prove is improper. See TEX. R. CIV.

P. 166a(i); Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 838 (Tex. App.—Dallas 2005, no

pet.); The Honorable Judge David Hittner & Lynne Liberato, Summary Judgments in

Texas, 54 BAYLOR L. REV. 1, 62 (2002) (stating that "[a] party may never properly urge

a no-evidence [motion for] summary judgment on the claims or defenses on which it

Williams v. Parker                                                                   Page 10
has the burden of proof").

       Accordingly, because there is a fact question regarding Keeth’s incompetency as

a driver and whether Parker knew or should have known about that incompetency, the

trial court erred in granting Parker’s motion for summary judgment as to Williams’

negligent entrustment cause of action.

CONCLUSION

       Having found that the trial court erred in granting judgment on all grounds

raised by Parker, we sustain Williams’ issues on appeal, reverse the trial court’s

judgment, and remand this case to the trial court for further proceedings.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed July 23, 2015
[CV06]




Williams v. Parker                                                             Page 11
