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TAYLOR v. FFE TRANS SVCS

Court of Appeals of Texas, Fourteenth District, Houston
Mar 31, 2005
No. 14-03-01430-CV (Tex. App. Mar. 31, 2005)

Opinion

No. 14-03-01430-CV

Memorandum Opinion filed March 31, 2005.

On Appeal from the County Civil Court at Law No. 2, Harris County, Texas, Trial Court Cause No. 784,436.

Affirmed.

Panel consists of Justices ANDERSON, HUDSON, and FROST.


MEMORANDUM OPINION


In this negligence claim arising from property damage to a truck tractor owned by appellant Daniel B. Taylor, we must determine whether there is a genuine issue of fact as to whether a brake-system fitting in the truck trailer owned by appellee FFE Transportation Services, Inc. had a crack when FFE turned the trailer over to Taylor, one of its drivers. Because we conclude that there is no such genuine issue of fact, we affirm the trial court's summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On or about December 6, 2000, appellant Daniel B. Taylor, a driver for appellee FFE Transportation Services, Inc., picked up a truck trailer in Florida from FFE. FFE owned the truck trailer, and Taylor owned the truck tractor. Taylor drove this tractor-trailer combination from Florida to Rochester, New York, which took about one-and-a-half days. Taylor stayed in Rochester an additional day to visit family members, and then he drove to Columbus, Ohio, a trip of about five hours. After waiting a while for the trailer to be loaded, Taylor left Columbus heading west, with a goal of reaching Las Vegas, Nevada. When Taylor left Columbus, it was snowing.

After traveling for two more days, Taylor reached Arizona. Although Taylor had experienced no previous problems with the brakes since picking up the trailer in Florida, after traveling down a hill with a relatively steep grade, Taylor engaged the trailer's brake system and it did not work. Unable to stop and fearing for his own safety and that of nearby motorists, Taylor stopped his truck by intentionally driving into concrete barriers. Although no one was injured in this incident, Taylor's truck tractor was a total loss.

William Summerson, Jr., a mechanic, inspected the truck tractor after this incident. Summerson concluded that the incident was caused by a failure of the trailer's brake system caused by the cracking of a fitting, which prevented air from entering the brake system.

Taylor filed suit against FFE seeking to recover for the damage to his tractor based on FFE's alleged negligence in inspecting and maintaining the trailer. Taylor alleges that the cracked fitting was present in the trailer when FFE gave it to him in Florida and that FFE was negligent in failing to inspect the trailer and notice this defect.

FFE filed a traditional and a no-evidence motion for summary judgment, asserting, among other things, the following no-evidence grounds: (1) there is no evidence that any act or omission on the part of FFE was a proximate cause of the failure of the brake system or the accident; (2) there is no evidence that any alleged failure by FFE to inspect or maintain the trailer was a proximate cause of the accident; and (3) there is no evidence that there was any problem at all with the trailer's brake system when Taylor took possession of it in Florida. The trial court granted FFE's motion for summary judgment without specifying the grounds. On appeal, Taylor asserts the trial court erred in granting FFE's motion for summary judgment, attacking both the traditional and no-evidence grounds.

II. STANDARD OF REVIEW

In reviewing a no-evidence motion for summary judgment, we ascertain whether the non-movant produced any evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). We take as true all evidence favorable to the non-movant, and we make all reasonable inferences therefrom in the non-movant's favor. Id. A no-evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary-judgment evidence that raises a genuine issue of material fact. Id. at 917.

III. ANALYSIS

Taylor cannot recover in this case unless he can prove that the fitting in the trailer's brake system was cracked when he picked up the trailer in Florida approximately five days before the accident in question. Applying the no-evidence summary-judgment standard of review, we must determine whether there is a genuine issue of fact as to whether this brake-system fitting was cracked when Taylor picked up the trailer.

The summary-judgment evidence contains excerpts from Taylor's deposition, but Taylor's testimony does not raise a genuine issue of fact as to whether the fitting in question was cracked when he picked up the trailer. Taylor testifies in his deposition, among other things, that (1) Taylor has no reason to think that there was a "cracked valve" when he left Kingman, Arizona, just before the accident occurred; (2) the brake defect may have happened on his trip somewhere between Florida and the accident site; and (3) Taylor cannot think of anything that occurred on his trip from Florida up until the accident that might have caused a cracked fitting.

The summary-judgment evidence also contains deposition testimony from mechanic Summerson, who testified in pertinent part as follows:

(1) The failure that occurred in the trailer's brake system is a very common failure.

(2) Summerson has repaired the exact same failure hundreds of times.

(3) Road debris flies up and cracks fittings such as the one that cracked in this case "all the time."

(4) Summerson does not know how long before the accident the fitting in question was cracked.

(5) It is possible the fitting in question was cracked when Taylor picked up the trailer in Florida.

(6) Summerson cannot say how long the fitting in question had been cracked before the accident, "[b]ut it was long enough for the elements to go in there and tarnish the brass and make it not shiny anymore [sic], just like the outside of it was."

When Summerson was asked how long he thought the fitting in question had been cracked before the accident, he stated that he could not answer that question:

I would say days at least. But I can't tell you that. He may have been — December, he may have came from back east and driven through snow and ice and slush and gone to a truck wash and got his truck washed, and that may be the residue of what's left. There's no way I can answer the fitting question.

In a previous recorded interview, Summerson had stated that the fitting had been cracked for "a while" before the accident. During his deposition, Summerson stated that his answers to the questions in the previous interview had not changed and that he would give the same answers to those questions if they were asked at the deposition. When Summerson was asked what he meant in his previous statement when he said the fitting had been cracked for "a while," Summerson answered:

I meant that it wasn't broken at the accident. It wasn't broken by the tow truck driver. It was broken prior to the accident. That's all I can — that time frame, I know that some time where [sic] the elements got to it. I wouldn't expect that to happen in an hour. It's going to take some time. I can't tell you what the time frame is.

Summerson himself stated that, although he thought the cracking had to have been there long enough for the metal to have been tarnished, this tarnishing could have been caused by driving through snow and ice. The record reflects that Taylor drove through snow during part of his trip. Even ignoring, under the familiar standard of review, Summerson's statements that he does not know how long the fitting was cracked and that he cannot say how long it had been cracked, Summerson's best testimony in Taylor's favor is that the fitting had been broken for "days at least" and that it had been broken for "a while." Nonetheless, four days before the accident would constitute "days" and "a while" and still not mean the fitting was cracked when FFE gave Taylor the trailer. We conclude that this evidence is only surmise or suspicion and that it is not sufficient to raise a genuine issue of material fact as to whether the fitting was cracked when it left FFE's possession in Florida five days before the accident. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993) (holding evidence was legally insufficient because it amounted to no more than suspicion or surmise); McKnight v. Hill Hill Exterminators, 689 S.W.2d 206, 209 (Tex. 1985) (same).

On appeal, Taylor objects that the evidence attached to FFE's reply in the trial court was untimely and should not have been considered. Without addressing the merits of this contention, we note that the evidence attached to FFE's reply is not necessary for our analysis in this opinion. Because we can affirm the trial court's judgment without considering this evidence, we need not address this issue.

Taylor asserts that FFE's arguments as to why Summerson's testimony does not raise a genuine issue of fact attack the relevance and reliability of this expert testimony and were waived by FFE's failure to object in the trial court. We disagree. FFE's arguments in this regard address whether Summerson's testimony raises a genuine issue of fact, rather than asserting that Summerson's testimony is inadmissible because it is irrelevant or unreliable. Therefore, FFE did not have to object in the trial court. See Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004).

Taylor asserts that two cases from the San Antonio Court of Appeals show that he has raised a genuine issue of material fact. See Rudolph v. ABC Pest Control, Inc., 763 S.W.2d 930, 933 (Tex.App.-San Antonio 1989, writ denied); Southwestern Bell Tel. Co. v. McKinney, 699 S.W.2d 629, 634 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.). The Rudolph case is not on point because, in that case, there was unequivocal testimony that the cause of the damage — a termite infestation — had been present for more than five years. See Rudolph, 763 S.W.2d at 932. The McKinney case involves the duty of a phone company to inspect and maintain its phone wires along a public roadway. See McKinney, 699 S.W.2d at 634. McKinney is not relevant to determining whether Taylor raised a genuine issue of fact on the issue of whether the fitting in the trailer's brake system was cracked when he picked up the trailer in Florida. See id.

Taylor also asserts that the testimony of Phil McGann raises a genuine issue of material fact because he testified that (1) a broken fitting could have caused the accident; (2) FFE did not perform a preventative maintenance inspection on the trailer in question when it was in FFE's possession just before giving the trailer to Taylor in December of 2000; (3) if FFE had done a preventative maintenance inspection just before giving Taylor the trailer and if the fitting had been cracked at that time, FFE's personnel would have detected and replaced the cracked fitting; and (4) FFE incorrectly stated that Summerson's inspection of the trailer had not revealed any defects. Taylor also points to his own testimony that he could not think of anything that occurred on his trip from Florida up until the accident that might have caused a cracked fitting. None of this evidence, however, raises a genuine issue of fact regarding whether the fitting in question was cracked when Taylor picked up the trailer in Florida. For example, Taylor's inability to think of anything that occurred on his trip from Florida that might have caused the cracking does not raise a reasonable inference that the fitting was cracked when FFE gave Taylor the trailer in Florida.

IV. CONCLUSION

In response to FFE's motion for summary judgment, asserting no evidence, Taylor did not respond with summary-judgment evidence raising a genuine issue of material fact as to whether the fitting in the trailer's brake system was cracked when Taylor picked up the trailer in Florida. The summary-judgment evidence did not raise a genuine issue of material fact as to whether FFE's allegedly actionable conduct was a proximate cause of the accident. Based on these conclusions, this court need not address FFE's other grounds for summary judgment. Accordingly, we overrule both of Taylor's issues and affirm the trial court's judgment.


Summaries of

TAYLOR v. FFE TRANS SVCS

Court of Appeals of Texas, Fourteenth District, Houston
Mar 31, 2005
No. 14-03-01430-CV (Tex. App. Mar. 31, 2005)
Case details for

TAYLOR v. FFE TRANS SVCS

Case Details

Full title:DANIEL B. TAYLOR, Appellant v. FFE TRANSPORTATION SERVICES, INC., Appellee

Court:Court of Appeals of Texas, Fourteenth District, Houston

Date published: Mar 31, 2005

Citations

No. 14-03-01430-CV (Tex. App. Mar. 31, 2005)