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finding that the presence of rainwater on a road is a naturally occurring condition that does not create an unreasonable risk of harm
Summary of this case from Estes v. Wal-Mart Stores Tex., L.L.C.Opinion
No. 04-04-00867-CV
Delivered and Filed: May 24, 2006.
Appeal from the 229th Judicial District Court, Duval County, Texas, Trial Court No. DC-03-32, Honorable Alex W. Gabert, Judge Presiding.
Reversed and Rendered.
Sitting: Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
The Texas Department of Transportation ("TxDot") appeals the trial court's judgment in favor of William Nolberto Martinez. Specifically, TxDot contends the trial court erred in denying its motion for judgment notwithstanding the verdict because (1) as a matter of law, it owed no duty to Martinez with respect to the road conditions, and (2) there is no evidence to prove three of the elements of Martinez' premises liability claim. Because we hold the evidence is legally insufficient to establish at least one essential element of Martinez' claim, we reverse and render judgment that Martinez take nothing against TxDot.
Background
This case arises out of a traffic accident which occurred at 1:40 p.m. on February 5, 2003. On that day, William Nolberto Martinez was traveling eastbound at approximately 55 to 60 miles per hour on State Highway 359, a two-lane highway that crosses a portion of Duval County. He was driving an 18-wheel tractor-trailer owned by CC Western and Central Transport International. Martinez picked up the trailer in Laredo with the intention of transporting it to Brownsville on Highway 359, a route he had previously traveled. The trailer Martinez was pulling was empty, and moments before the accident he felt it begin to move from side to side. He took his foot off the accelerator, down-shifted, and attempted to move to the right onto the shoulder. The tractor-trailer moved to the right, then sharply to the left; he lost control of his vehicle and crossed the center lane of traffic, striking a vehicle driven by Emma Garza, who had been driving westbound. Garza was also familiar with the roadway, driving the route regularly. She died as a result of the impact. Martinez suffered injuries to his limbs and torso, incurring $48,000 in medical bills. The police report described the accident as a "jackknife accident." It had been raining all day and the road was wet. It was approximately 55 degrees Fahrenheit at the time of the accident.
The portion of State Highway 359 relevant to this case runs essentially east and west from Laredo to Hebbronville. Martinez's accident occurred on the four mile stretch of the highway that crosses the southwest corner of Duval County, between Webb County to the west and Jim Hogg County to the east. The accident occurred approximately one to two miles east of the Webb/Duval county line. There was testimony that approximately 2,000 vehicles travel that stretch of highway in both directions per day, and more than 50% are 18 wheeler trucks.
Garza's family sued Martinez and CC Western and Central Transport International for wrongful death. All defendants then joined TxDot as a third party defendant seeking contribution. Martinez later amended his pleadings to seek affirmative relief against TxDot for his injuries on the theory of a premises defect. The Garza family's claims against Martinez and the trucking company were settled during trial; however, Martinez continued to prosecute his affirmative claims against TxDot. At the conclusion of the evidence, TxDot moved for a directed verdict, which was denied. The case was then submitted to the jury. The jury found both Martinez and TxDot negligent, attributed 80% of the negligence to TxDot, and awarded Martinez damages. The trial court entered judgment on the jury verdict in favor of Martinez. TxDot now appeals.
The jury awarded Martinez $350,000 in damages, which was reduced by the trial court to $250,000 in accordance with the Texas Tort Claims Act. Tex. Civ. Prac. Rem. Code. Ann. § 101.023 (Vernon 2005).
Analysis
TxDot challenges the trial court's rendition of judgment on the jury's verdict in favor of Martinez. In its first issue, it argues that, as a matter of law, it owed no duty to Martinez with regard to the road condition because it was open and obvious. In its second issue, TxDot argues there is no evidence to support the jury's findings on at least three of the elements of Martinez's premises liability claim as a licensee: (1) a road condition that posed an unreasonable risk of harm; (2) of which Martinez did not have actual knowledge; and (3) which condition proximately caused Martinez's injuries. Because we hold the evidence is legally insufficient to support the jury's finding that the condition of the road posed an unreasonable risk of harm, which is one of the essential elements of Martinez's claim, we need not address the sufficiency of the evidence on the other elements or TxDot's first issue regarding duty.
Standard of Review
When reviewing the legal sufficiency of the evidence to support the jury's verdict, we must determine "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Further, "whether a reviewing court begins by considering all the evidence or only the evidence supporting the verdict, legal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id. When the circumstances are equally consistent with either of two facts, neither fact may be inferred, and we must view each piece of circumstantial evidence not in isolation but in light of all the known circumstances. Id. at 813-14. If reasonable minds can not differ from the conclusion that the evidence lacks probative force, it will be held to constitute no evidence. Id. at 828.
Premises Liability Claim
In a premises liability case where the plaintiff is a licensee, a defendant is liable for negligence with respect to a condition of the premises if: (1) the condition posed an unreasonable risk of harm to the licensee; (2) the defendant had actual knowledge of the condition; (3) the licensee did not have actual knowledge of the condition; (4) the defendant failed to exercise ordinary care to protect the licensee from danger by both failing to adequately warn the licensee of the condition and failing to make the condition reasonably safe; and (5) the defendant's failure was a proximate cause of injury to the licensee. State Dep't of Highways Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992); State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996) (per curiam). TxDot maintains that Martinez failed to present legally sufficient evidence on three elements of his premises liability claim specifically, that the roadway condition (1) posed an unreasonable risk of harm, (2) was not known to Martinez, and (3) was a proximate cause of the accident. We proceed by first examining the evidence of the condition of the road where the accident occurred to determine whether it is legally sufficient to support the jury's finding that the condition posed an unreasonable risk of harm.
TxDot does not challenge the legal sufficiency of the evidence on the elements of TxDot's actual knowledge of the condition and TxDot's failure to exercise ordinary care to protect Martinez from the danger.
Evidence of Condition of Road
Martinez alleged in his sixth amended third-party petition that at the time of the accident, the highway was "unreasonably bumpy, slick and in bad need of repair." Additionally, he asserted that the road condition "presented an unreasonable risk of harm to the public using the roadway." On appeal, Martinez argues that "the condition presenting the unreasonable risk of harm was the low and uneven friction coefficient of the road, together with the bumpiness." Martinez asserts there is legally sufficient evidence to prove the road did not have a "reasonable degree of friction, and was unreasonably dangerous because of that." He maintains that "the evidence established that the friction coefficient of the road was so low that merely driving down this straight, flat road in the rain, not taking any evasive action, caused [his] drive tires to begin spinning and the resulting loss of control of his truck." We begin by summarizing the trial evidence that supports the jury's finding of an unreasonably dangerous road condition.
The amount of friction of a road surface is called the "coefficient of friction." It refers to the amount of force required to drag an object over a given surface. If the friction provided by the surface is low, meaning it is slick, the force necessary to move the object is low. The lower the force necessary to drag an object over the surface, the lower the coefficient of friction. Thus, for example, a road providing a coefficient of friction of .25 provides less friction than a road providing a .55 coefficient of friction. It was undisputed at trial that a coefficient of friction range between .25 and .55 is reasonable.
Thomas Beltran, a maintenance supervisor for TxDot, testified that he first requested use of a milling machine for several sections of Highway 359 in a December 10, 2002 email to Chano Falcon, who oversees the milling machine for TxDot. Falcon responded by email that use of the machine was already scheduled through January 2003, and that Beltran could use it after that time, unless he had an emergency. Beltran did not immediately reply to Falcon. A few days before January 15, 2003, Beltran drove Highway 359 traveling westward toward Bruni, and noticed three to four "markings" on the dirt right-of-way, or shoulder, and some fences down, which indicated to him that cars had gone off the road; he concluded that "there was something going on." Beltran stated that he never heard from the property owners, the "people that ran off the highway," the county officials or DPS, so he "decided that [he] needed to get the milling machine real bad." Therefore, on January 15, 2003, Beltran sent a follow-up email to Falcon stating, "I am in need of the milling machine real bad due to some flushing on SH-0359 in Duval/Webb County. We have notice[d] several marks on the pavement and/or R.O.W. during/after rainy day of vehicles driving off highway into private property." Falcon replied that the machine should be available the week of January 27, 2003. On February 6, 2003, the day after Martinez's accident, TxDot's Laredo district engineer, Luis Ramirez, sent an email to another engineer for the Laredo district stating that TxDot would be milling the four mile section of Highway 359 in Duval County that day "in immediate fix or improvement for friction;" the email also added the Duval County section to a previously scheduled, more extensive, overlay repair. Copies of the email streams between the TxDot employees were admitted into evidence without objection.
Beltran testified that "milling" a roadway involves grinding the asphalt pavement to create a higher coefficient of friction.
There was trial testimony that over time vehicle tires generally wear down parts of the road, creating wheel paths and resulting in "flushing" in the wheel paths. Beltran defined "flushing" as "when the tar or the emulsion, the oil, whatever you want to call it, comes up on the road surface and make[s] it bright." Beltran testified that flushing can lower the coefficient of friction, thereby making the road slicker. It was undisputed at trial that flushing is a common condition.
Paul Carper, a forensic engineer who investigates disaster related incidents, testified to his opinion regarding the cause of Martinez's accident. In reaching his conclusion regarding the cause of the accident, Carper met with representatives from the trucking company, CC Western Central Transport International, visited the accident scene, conducted a mechanical investigation of the truck involved (and found no deficiencies), reviewed photographs and coordinates taken by DPS, and examined a coefficient of friction table. He also conducted a coefficient of friction test on Highway 359 "a few miles" from the accident scene, but testified that the test did not "have a lot to do with our accident on a rainy day on a different road surface." When asked what caused Martinez's accident, Carper opined, "this accident occurred because the roadway was slippery[,] causing the tractor-trailer to lose traction, [and] go out of control across the roadway." He stated the "loss of drive axle friction or contact to the road" started the loss of control sequence of events, "[i]n other words, . . . the rear tires of the truck tractor, which is right under the front of the trailer there, started to spin, lose contact with the road." When asked what caused the loss of traction, Carper answered, "basically, the condition of the road . . . the friction of it or lack thereof."
Philip Smith, a truck accident investigator and former truck driver with 30 years experience, also testified regarding the road's condition. Based on his review of photographs from the accident scene and relevant portions of the roadway near the scene, and review of a coefficient of friction table developed by Northwestern University, Smith testified that Martinez was driving on a road with conditions "like snow." He testified that he reached this conclusion by analyzing the facts of the Martinez accident and referencing the coefficient of friction table. According to the table, because the accident occurred in the rain while Martinez was traveling over 30 miles per hour on a road with excess tar, or flushing, the coefficient of friction on the road ranged between .25 and .55, which is considered a safe range. Smith testified that even though the friction coefficient was within the safe range of .25 to .55, in light of the occurrence of three other accidents within four hours on that road, he did not believe "the road was that good. . . . [because] there's no reason for a truck driver to . . . lose control on a road that's .4 to .6." Smith stated, "It's my opinion you have to have a slick road to have that many accidents in that short of time." Smith testified that three other accidents occurred within a 1.7 mile stretch of Highway 359 within four hours of each other on the day of Martinez's accident. All of the accidents involved trucks pulling unloaded trailers, and all the drivers were driving at, or below, the speed limit, and lost control of their vehicles. Martinez and two of the other drivers involved in accidents were traveling eastbound, while one driver was traveling westbound.
The coefficient of friction table referred to throughout trial was developed by Northwestern University Traffic Accident Reconstruction Institute and published in a book entitled Traffic Reconstruction. According to Smith, "probably 10 to 20 Society of Automotive Engineering papers written based their conclusions on the table." Smith stated that the table was created by conducting "lots and lots" of skid testing.
The Northwestern table indicates that packed or loose snow can have a friction coefficient of .30 to .60.
Smith was referring to Sergeant Michael Raines' measurement of the road's friction coefficient while dry (.60), and his conversion of that figure to .40 when the road was wet. Raines testified that .40 is a typical coefficient of friction for a wet road in Webb County.
Two accidents happened at 11:29 a.m. in the morning. Martinez's accident happened at 1:40 p.m., and a fourth accident occurred at 2:00 p.m.
Raymond Helmer, a civil engineer retained by Martinez, testified regarding his expertise of paved surface conditions. Helmer is licensed as a professional engineer in both Ohio and Texas, and focuses 60 percent of his work on the engineering of streets and highways. In preparing to testify, Helmer reviewed depositions of relevant testimony, studied photographs of the accident site and other relevant portions of Highway 359, visited the accident site on two occasions, and reviewed several treatises on the subject matter. He also examined the coefficient of friction table developed by Northwestern University. Helmer agreed with the other experts that using the table, the coefficient of friction based on the road conditions on the day of the accident was between .25 and .55. He opined that a coefficient of friction within that range was "marginally safe."
Helmer further testified, however, that in his opinion Highway 359 was "unreasonably dangerous" on the day of Martinez's accident, stating, "it was very, very slippery in the rain particularly." Helmer opined that despite being within the .25 to .55 "marginally safe" range, he did not think the road had a reasonably safe coefficient of friction at the time of the accident. He clarified on cross-examination that the physical condition of the road creating the unreasonable risk of harm was the " low coefficient of friction," as well as an " uneven coefficient of friction." [emphasis added]. Helmer testified that where the friction coefficient of the road is not uniform, then the road's surface would not "necessarily" be "marginally safe." He discussed the danger of a coefficient of friction that is not uniform, both transversely (side to side) and longitudinally (forward and back), stating that a driver would not necessarily recognize an uneven coefficient of friction while driving on the road. Helmer described wheel paths depicted in a photograph of the road taken where Carper took his measurement, i.e., "a few miles" from the Martinez accident scene. Helmer stated that even though the friction coefficient inside the wheel paths was within the reasonable range, the areas outside the wheel paths provided even more friction, creating a coefficient of friction differential.
Helmer also referred to an "uneven" coefficient of friction as the coefficient of friction "differential."
Sufficient Evidence That Road Condition Created an Unreasonable Risk of Harm?
TxDot argues that Martinez can point to no evidence of the presence of a specific condition of the road which created an unreasonable risk of harm. After a thorough review of all of the evidence supporting the verdict, we agree. "A condition poses an unreasonable risk of harm for premises-defect purposes when there is a `sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.'" County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) (quoting Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970)). Using the reasonable person concept requires case by case analysis; it does not provide a definitive, objective test to determine whether a condition presents an unreasonable risk of harm. Seideneck, 451 S.W.2d at 754. It is not necessary in a premises liability action that the exact sequence of events be foreseeable, only the general danger. Brown, 80 S.W.3d at 556. Evidence of other incidents attributable to the same condition may be probative, although not conclusive, on the question of whether the condition presents an unreasonable risk of harm. Seideneck, 451 S.W.2d at 754; Klorer v. Block, 717 S.W.2d 754, 760 (Tex.App.-San Antonio 1986, writ ref'd n.r.e.) (evidence of similar accidents arising out of same condition is probative of the existence of a dangerous condition).
A landowner's duty toward an invitee does not make the landowner an insurer of the invitee's safety. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 676 (Tex. 2004) (per curium) (premises liability case in the context of an invitee); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). Some conditions posing a risk of harm do not rise to the level of an unreasonable risk of harm. For instance, in M.O. Dental Lab v. Rape, the Texas Supreme Court held that "[o]rdinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact is, in normal circumstances, nothing more than dirt in its natural state and, therefore, is not a condition posing an unreasonable risk of harm." M.O. Dental Lab, 139 S.W.3d at 676. To hold a landowner accountable for "naturally accumulating mud that remains in its natural state would be a heavy burden because rain is beyond the control of landowners;" such a holding would amount to strict liability for injuries resulting from ordinary mud in its natural state. Id.
Here, the evidence was undisputed that the road was wet because of the rain that had been falling throughout the day. Carper, Smith and Helmer testified that the accident was caused by the "slippery" condition of the road, but admitted on cross examination that all roads are slippery when wet. The mud that accumulated on the concrete slab due to rain in M.O. Dental Lab was described as creating a "slippery" condition, but, as a naturally occurring condition that remained in its natural state, it did not create an "unreasonable" risk of harm. Id. at 675-76. Similarly, the portion of Highway 359 on which Martinez's accident occurred was "slippery" and wet from rain in its natural state, and constituted a naturally occurring condition that is beyond the control of the landowner, in this case TxDot. Thus, the evidence that the road condition was "slippery" may describe a condition posing a risk of harm, but it does not by itself provide evidence of an "unreasonable" risk of harm. See id. at 676.
Helmer was the only witness to testify that the condition of the road created an "unreasonable risk of harm." Helmer stated the specific physical condition creating the "unreasonable risk of harm" was the "low" and "uneven" coefficient of friction. There was no evidence presented, however, to support Helmer's conclusion that the coefficient of friction at the accident site was in fact "low," "uneven," or "unsafe." As discussed supra, all the evidence showed that the friction coefficient was within a safe range, whether it was within .25 to .55 or within .40 to .60, considering the rainy conditions and flushing. There were only two actual measurements of the coefficient of friction of Highway 359 taken in this case. Sergeant Raines, who investigated the accident for Martinez, took only one coefficient of friction measurement "near" the site of Martinez's accident on a dry road, from which he calculated a .40 on a wet surface; he stated the .40 coefficient of friction was within the safe range under the road conditions (wet plus flushing). The only other friction coefficient measurement was taken by Carper; however, he testified that his measurement was unquantifiable and had "little" to do with Martinez's accident. Helmer took no measurements and conceded that any effort by him to quantify the coefficient of friction at the accident site that day would be "rank speculation."
Carper's measurement was taken days after the accident and "a few miles" from the accident site on a portion of the road that was in the process of being milled. Half of the road had already been milled, so that two of his tires were on a milled surface and two were not when he took the measurement.
The experts' testimony that the coefficient of friction was within the .25 to .55 range was an estimate based on the Northwestern University table and the undisputed known road conditions some flushing and rain, combined with Martinez's speed of more than 30 mph. All the experts, including Helmer, agreed that a coefficient of friction range between .25 and .55 was a safe range, and all agreed that the friction coefficient of the road fell within a safe range. We cannot rely upon expert testimony containing too great an "analytical gap" between the data the expert relies upon and the opinion he offers. Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897, 904-05 (Tex. 2004); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998). "Expert testimony is unreliable if it is not grounded `in the methods and procedures of science' and is no more than `subjective belief or unsupported speculation.'" Ramirez, 159 S.W.3d at 904 (quoting E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995)). No evidence was presented that the coefficient of friction fell outside a safe range to support Helmer's opinion that the friction coefficient was "low."
Helmer also based his opinion that the road was "unreasonably dangerous" on his theory of differential coefficients of friction, or "uneven" friction. Helmer conceded that the road's coefficient of friction calculated using the table was "marginally safe," but he asserted that because the coefficient of friction was not uniform across the road, it was "unreasonably dangerous." Again, as discussed below, no evidence was presented to support Helmer's opinion that the coefficient of friction at the accident site was "uneven," creating an analytical gap that rendered his opinion unreliable. See Ramirez, 159 S.W.3d at 904-05.
Helmer testified that based on all the evidence and using the table, the most likely coefficient of friction for the road surface was between .25 and .55, but even if the friction coefficient was .40 to .60, both ranges provide a "safe coefficient of friction" if the friction is uniform.
On appeal, TxDot asserts that Helmer's opinion that the road's coefficient of friction was "not uniform" constitutes "no evidence" because it is merely conclusory with no factual or scientific support. Specifically, TxDot asserts that: (1) no evidence was presented that the coefficient of friction fell outside a safe level; and (2) Helmer's "differential friction" theory lacks scientific support and is unreliable. We have already concluded there was no evidence to support a reasonable finding that the road's friction coefficient was below a safe range. As to the reliability of Helmer's theory of "uneven" or differential coefficients of friction, TxDot notes that Helmer's opinion was based on one unpublished article written 28 years ago by a member of the Arizona Department of Transportation, which does not even support Helmer's ultimate conclusion. We agree. The article cited by Helmer merely posits that differential friction could potentially be a problem, and recommends further study by engineers. The article does not state what degree of differing friction would be significant, much less unreasonably dangerous, under particular road conditions. Without any objective parameters, Helmer's opinion applying the article's theory to the facts of the Martinez accident is mere speculation. Further, Martinez did not present any evidence showing that the article had been published, or that the engineering profession recognizes differential friction as a valid scientific theory or as creating an unreasonable risk of harm under the circumstances of this case, i.e., rain plus flushing. It is clear from the record that Helmer's "differential friction" theory lacks scientific support, and thus lacks reliability. See Ramirez, 159 S.W.3d at 905 (listing the six non-exclusive factors to be considered in determining whether an expert's testimony is reliable).
The article is entitled, "Differential Friction: A Potential Skid Hazard," and was authored by John C. Burns, of the Arizona Department of Transportation.
Helmer's opinion that the friction coefficient was "uneven" lacks factual support as well. With only one reliable measurement by Raines, no evidence was presented which could support a reasonable inference of differing or "uneven" friction on the road, much less at the location where Martinez's accident occurred. Helmer testified to his visual observation of wheel paths in the eastbound lane from a photograph of a portion of the highway where Carper took his measurement — "a few miles" from the Martinez accident scene. While Helmer stated that his observation of wheel paths in the photo supported his opinion that there was uneven friction, he also stated that it was "impossible or at least difficult to tell" the degree of flushing inside the wheel paths from the photo; he ultimately characterized the degree of flushing as "moderate." Without scientific or factual support, the opinion of Helmer concerning "uneven" friction is merely conclusory, and amounts to no evidence on this issue. Coastal Transport Co. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (expert "[o]pinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact `more probable or less probable'"). Such conclusory testimony can not support a judgment even when no objection was made to the statements at trial. Id. "[A] claim will not stand or fall on the mere ipse dixit of a credentialed witness." Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999).
According to Helmer, the extent or degree of flushing is what creates a friction differential in the roadway. In describing the photograph, Helmer stated, "[w]hat we are seeing here is . . . the aggregate stones and from the photograph it's pretty much impossible to tell or at least difficult to tell whether or not they project up above the asphalt, but you see quite a few stones at any rate and then the asphalt in between them. On an extremely flushed surface, you would have much more asphalt and less stones." In response to the question, "[w]hat would it . . . look like if it were worse flushing?" Helmer answered, ". . . a lot less white, which is the aggregate stones[,] and a lot more black, which is the asphalt."
In addition, there was no evidence that the three other accidents on the same day as Martinez's accident were caused by the same or reasonably similar "unreasonably dangerous" condition of the road. The DPS investigations of all four accidents did not find that any of the accidents were caused by a defective condition of the road; in fact, all the accidents, including Martinez's accident, were found to be caused by driver error. The DPS finding of driver error was contrary evidence that the jury could not reasonably ignore. See City of Keller, 168 S.W.3d at 827. Moreover, evidence of other similar accidents is probative and may be admitted only if the plaintiff lays a predicate of: (1) similar or reasonably similar conditions; (2) a connection of the conditions in some special way; or (3) that the incidents occurred by means of the same instrumentality. McEwen v. Wal-Mart Stores, Inc., 975 S.W.2d 25, 29 (Tex.App.-San Antonio 1998, pet. denied). Absent some evidence pointing to the existence of a similar specific condition that posed an unreasonable risk of harm at the site of the other accidents, the jury could not use the mere fact of other accidents to find the existence of an unreasonably dangerous condition at the site of Martinez's accident. See Gonzalez, 968 S.W.2d at 936; see also Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993) (holding that a factual finding must be supported by more than mere surmise or suspicion). Even if the other accidents provided evidence of some defect at the Martinez accident site, the jury is not permitted to speculate as to the nature of that condition. Gonzalez, 968 S.W.2d at 936.
Similarly, the fact that Beltran wanted a milling machine for the road "real bad" before the accident is not evidence that the condition of the road was unreasonably dangerous. Beltran testified that the road was reasonably safe even with the flushing. He based this conclusion on the same coefficient of friction table discussed throughout trial, which provides that when flushing is present, as it was on the day of the accident, a .25 to .55 coefficient of friction generally exists. It was undisputed at trial that flushing generally results in a co-efficient of friction of between .25 and .55, and that those values represent a reasonably safe range of friction. Finally, Beltran stated he did not know what caused the previous drivers to go off the road and leave the markings on the right-of-way, and that it could have been due to driver error; further, he did not specify the portion of the highway where he observed the markings.
Beltran stated that he only said he needed the milling machine "real bad" as a way to obtain the machine more quickly. He did "not mean the highway was in real bad condition" and it was not an emergency; he simply wanted to mill the road in order to make it more safe by increasing the friction.
Conclusion.
In summary, after crediting all the evidence favorable to the jury's verdict, we conclude the evidence is legally insufficient to enable reasonable and fair minded people to find that a specific condition of the road posed an unreasonable risk of harm to Martinez. City of Keller, 168 S.W.3d at 827. Martinez attempted to prove an essential element of his claim with expert testimony consisting of unsupported conclusions. While substantial evidence regarding the road conditions was presented, none of that evidence supports a reasonable inference of a condition that rises to the level of an unreasonable risk of harm. Though rain on a road can, and often does, create a risk of harm, it is a naturally occurring condition which alone does not rise to the level of an "unreasonable" risk of harm for which liability will be imposed on the landowner. M.O. Dental Lab, 139 S.W.3d at 676. All the experts agreed that the coefficient of friction on the road under the wet conditions with flushing fell within a safe range. Helmer's opinion that the road was made unreasonably dangerous due to an "uneven" coefficient of friction based on his "differential friction" theory lacked both factual and scientific support. Though we are to indulge all reasonable inferences in favor of the jury's verdict in a no-evidence review, "we are not required . . . to ignore fatal gaps in an expert's analysis or assertions that are simply incorrect." Ramirez, 159 S.W.3d at 912. Juries are essential to our legal system, but "they cannot credit as some evidence expert opinions that are not reliable or are conclusory on their face." Id. Helmer's opinion that the road was unreasonably dangerous because of low and uneven friction coefficients was unreliable and conclusory, and amounts to no evidence on the issue. Finally, there was no evidence that the three other accidents were caused by any specific road condition, other than rain, that was the same as or similar to a condition that caused Martinez's accident. Meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support a jury finding. Gonzales, 968 S.W.2d at 936; Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003) (per curium) ("an inference stacked only on other inferences is not legally sufficient evidence").
Because Martinez failed to present legally sufficient evidence of at least one essential element of his claim, namely that the road condition was unreasonably dangerous, we reverse and render judgment that Martinez take nothing on his claim against TxDot. We do not address TxDot's remaining issues on appeal because they are not necessary to the final disposition of this appeal. See Tex.R.App.P. 47.1.