Reversed=20
and Remanded and =
Memorandum Opinion filed August 9, 2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00928-CV
____________
NOAH EUGENE=20
HENDRIXSON, =
Appellant
V.
U-HAUL CO.=20
OF HOUSTON, =
Appellee
On Appeal from the =
113th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2005-31730
M E M O R=20
A N D U M O P I N I O N
=
; =20
Appellant, Noah Eugene Hendrixson, appeals the granting of a =
no-evidence=20
summary judgment motion in favor of U-Haul Company of Houston on =
his=20
negligence and negligent misrepresentation claims. In his =
sole=20
issue, Hendrixson claims the trial court erred in granting summary =
judgment because there are genuine issues of material fact as to =
both=20
claims. We reverse the judgment of the trial court and =
remand for=20
further proceedings.
Background
Noah=20
Hendrixson contacted U-Haul to rent a truck for transporting a =
wrestling=20
ring. Based on the size descriptions given by Hendrixson, =
the=20
salesman told him the truck would be able to handle the =
ring. When=20
Hendrixson picked up the truck, the salesman told him the truck =
was=20
Aready to=20
go.@ =20
Hendrixson signed the appropriate paperwork, including an =
agreement that=20
required the customer to inspect the equipment periodically and a =
program=20
for additional insurance coverage on the truck. Hendrixson =
drove the=20
truck to his residence and parked it in the driveway. After =
making a=20
visual inspection of the engine compartment and exterior of the =
truck, he=20
crawled underneath the truck to check for leaks from the oil and=20
transmission reservoirs. While under the truck, the parking =
brake=20
failed, and the truck rolled over Hendrixson, causing him serious=20
injury.
Hendrixson=20
alleges U-Haul was negligent by not properly maintaining the =
parking brake=20
on the truck. Additionally, he contends U-Haul negligently=20
misrepresented that the truck was Aready to=20
go,@ =
and that=20
his reliance on the statement resulted in his injury. U-Haul =
filed a=20
motion for a no-evidence summary judgment contending that =
Hendrixson could=20
produce no evidence to raise a genuine issue of material fact with =
regard=20
to the elements of duty, breach of duty, and causation with =
regards to his=20
negligence claim, or the reliance element of his negligent=20
misrepresentation claim. In support of his response, =
Hendrixson=20
submitted his deposition, and the depositions of U-Haul =
representative=20
Richard Holland and expert Thomas Grubbs. The trial court =
granted=20
the no-evidence summary judgment motion in favor of =
U-Haul.
Standard=20
of Review
In=20
reviewing a no-evidence summary judgment, we ascertain whether the =
nonmovant produced summary judgment evidence of such probative =
force as to=20
raise a genuine issue of fact as to the essential elements =
attacked in the=20
no-evidence motion. Johnson v. Brewer & Pritchard, =
P.C.,=20
73 S.W.3d 193, 206B08 (Tex.=20
2002). A no-evidence summary judgment is improperly granted =
when the=20
respondent brings forth more than a scintilla of probative =
evidence=20
raising a genuine issue of material fact. King Ranch, =
Inc. v.=20
Chapman, 118 S.W.3d 742, 751 (Tex. 2003). The evidence =
amounts=20
to more than a mere scintilla when it Arises to a=20
level that would enable reasonable and fair-minded people to =
differ in=20
their conclusions.@ =20
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 =
(Tex.=20
1997). Our review is de novo, taking the evidence in the =
light most=20
favorable to the nonmovant and disregarding all contrary evidence =
and=20
inferences. Id. When, as here, the trial=20
court=3Ds order=20
does not specify the grounds upon which it relied, we must affirm =
if any=20
ground is meritorious. FM Props. Operating Co. v. City of =
Austin, 22 S.W.3d 868, 872 (Tex. 2000).
Negligence
The=20
elements of a negligence cause of action are duty, breach of duty, =
and=20
damages proximately caused by the breach of duty. Doe v. =
Boys=20
Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. =
1995). =20
When analyzing a negligence claim, the threshold inquiry is =
duty. =20
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.=20
1995). U-Haul contends that it does not have a duty to =
provide a=20
safe working environment for Hendrixson and that it did not assume =
a duty=20
by giving Hendrixson permission to undertake repairs on the =
truck. =20
U-Haul further alleges it was not foreseeable that Hendrixson =
would crawl=20
under the truck to inspect it.
The=20
existence of a duty is a question of law for the court to decide =
from the=20
facts surrounding the occurrence. Greater Houston =
Transp., Co. v.=20
Phillips, 801 S.W.2d 523, 525 (Tex. 1990). In =
determining if=20
there is a duty, the court will consider several factors including =
the=20
risk, foreseeability, likelihood of injury weighed against the =
social=20
utility of the actor=3Ds conduct,=20
the magnitude of the burden of guarding against the injury, and =
the=20
consequences of placing the burden on the defendant. =20
Id. Foreseeability is the dominant =
consideration. =20
Id. Foreseeability requires more than someone looking =
at the=20
facts and postulating an extraordinary sequence of events whereby =
the=20
injury results from the defendant=3Ds=20
conduct. Green v. GS Roofing Prods. Co., 928 S.W.2d =
265, 268=20
(Tex. App.CHouston=20
[14th Dist.] 1996, no writ).
The=20
attendant standard of conduct may be determined by statute. =
Nixon=20
v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985). =
Under=20
the Texas Transportation Code, a vehicle of the type rented by =
U-Haul is=20
required to have parking brakes adequate to hold a vehicle on any =
grade on=20
which the vehicle is operated and under all loading =
conditions. =20
Tex. Transp. Code =
Ann.=20
' =
547.404(a)(1)B(2)=20
(Vernon 1999). The trucks U-Haul leases are required to have =
an=20
operational parking brake. Therefore, the statute serves as =
a=20
guideline for minimum conduct by U-Haul when renting its=20
trucks.
Reviewing=20
the evidence in the light most favorable to Hendrixson, we find =
more than=20
a scintilla of evidence to support the duty and breach prongs of=20
negligence. The parking brake on Hendrixson=3Ds rental=20
truck failed. This fell below the standard of conduct =
required of=20
U-Haul. The risk and burden of imposing the duty on U-Haul =
is slight=20
because U-Haul is the party responsible for maintenance on the=20
trucks. There is little consequence of placing the burden on =
U-Haul=20
because of the existing Transportation Code =
requirement.
Moreover,=20
it is not unreasonable to assume when a person rents a truck, he =
expects=20
the truck to be safe and well-maintained with working =
brakes. Even=20
U-Haul=3Ds own=20
representative, Richard Holland, stated that he would want a =
safely=20
maintained truck to rent as a customer and it would not surprise =
him if=20
U-Haul customers wanted to rent a properly maintained truck. =
U-Haul,=20
therefore, had a duty to Hendrixson to provide a safe truck and =
breached=20
its duty by failing to provide Hendrixson a truck with a =
functional=20
parking brake.
Proximate=20
cause requires proof of cause-in-fact and foreseeability. =
W.=20
Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). =
These=20
elements cannot be established by mere conjecture, guess, or=20
speculation. Id. Cause-in-fact is established =
when the=20
act or omission was a substantial factor in bringing about the =
injuries,=20
and without it, harm would not have occurred. Id. =
If=20
the defendant=3Ds=20
negligence merely furnished a condition that made the injuries =
possible,=20
there can be no cause-in-fact. Id. Similarly, =
even if=20
the injury would not have occurred but for the =
defendant=3Ds conduct,=20
it may be too attenuated from the resulting injuries to be a =
substantial=20
factor in bringing about the harm. IHS Cedars Treatment =
Ctr. of=20
DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004).=20
U-Haul=20
contends that it played no role in Hendrixson=3Ds climbing=20
under the truck and, it had no control over his actions. =20
Furthermore, U-Haul claims the connection between the renting of =
the truck=20
and Hendrixson crawling under it was too attenuated. See=20
Pinkerton=3Ds v.=20
Manriquez, 964=20
S.W.2d 39 (Tex. App.CHouston=20
[14th Dist.] 1997, pet. denied) (holding that merely providing a =
condition=20
for the injury is not a substantial factor or =
cause-in-fact). In=20
Pinkerton=3Ds,=20
Manriquez, a building maintenance employee, was injured when he =
was=20
ordered by an employee of Pinkerton=3Ds, the=20
on-site security provider, to help move a car that was blocking a=20
ramp. Id at 42. The car owner and Manriquez =
decided to=20
push the stalled car up the ramp. Id at 43. The =
car=20
rolled backwards and injured Manriquez. Id. =
U-Haul=20
claims this situation is analogous to =
Pinkerton=3Ds =
because=20
the faulty parking brake merely provided a condition for the =
injury and=20
was not a substantial factor as to the injury. However, =
U-Haul had a=20
role in Hendrixson=3Ds presence=20
under the truck because, according to its own contract, it =
required=20
customers to inspect the truck.
Clause=20
Nine of U-Haul=3Ds contract=20
clearly states that a A[c]ustomer=20
promises to inspect the equipment periodically and not operate the =
equipment when oil pressure/level is low or when any defect in the =
operation of the equipment has been noticed.@ =20
Moreover, the contract for the additional insurance coverage =
Hendrixson=20
purchased on the truck stated A[d]amage=20
that results from the failure to comply with the terms of the =
rental=20
contract@ =
is not=20
covered. If the wording of a contract is unambiguous, the =
court will=20
construe it as a matter of law. Enterprise Leasing Co. of =
Houston=20
v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004). U-Haul =
contends it=20
did not instruct Hendrixson on how to inspect the truck. =
This lack=20
of control over Hendrixson=3Ds actions=20
does not eliminate causation. Hendrixson was fulfilling his=20
contractual obligations to U-Haul. Thus, one can envision=20
Hendrixson=3Ds=20
performing his inspection of the truck and being injured by the =
parking=20
brake failure. The parking brake failure, therefore, was a=20
substantial factor in Hendrixson=3Ds injuries=20
and is the cause-in-fact.
To=20
establish the parking brake was the proximate cause of his =
injuries,=20
Hendrixson must establish the injury was foreseeable. =
Foreseeability=20
in determining proximate cause, as opposed to duty, is generally a =
question of fact. McIntosh v. NationsBank, 963 S.W.2d =
545,=20
548 n.10 (Tex. App.CHouston=20
[14th Dist.] 1997, pet. denied). Although generally a =
question of=20
fact, foreseeability might become a question of law when the =
evidence is=20
without material dispute and where only one reasonable inference =
may be=20
drawn. Ambrosio v. Carter=3Ds Shooting=20
Center, Inc., 20=20
S.W.3d 262, 266 (Tex. App.CHouston=20
[14th Dist.] 2000, pet. denied). As was the case with =
foreseeability=20
when determining duty, it requires more than someone looking at =
the facts=20
and postulating an extraordinary sequence of events whereby the =
injury=20
results from the defendant=3Ds=20
conduct. Green, 928 S.W.2d at 268. U-Haul =
contends that=20
reasonable minds could not differ on the evidence presented, and =
that=20
foreseeability is lacking as a matter of law.
Foreseeability=20
requires that a person of ordinary intelligence would have =
anticipated the=20
danger created by a negligent act or omission, although it is not =
required=20
that such a person would anticipate the precise manner in =
which=20
injury will occur once he has created a dangerous situation =
through his=20
negligence. Read v. Scott Fetzer Co., 990 S.W.2d 732, =
737=20
(Tex. 1998). Thus, at the time Hendrixson rented the truck, =
U-Haul=20
did not have to specifically foresee that Hendrixson would crawl =
under the=20
truck to complete the inspection. U-Haul only had to =
anticipate the=20
danger, which in this case would be an injury sustained by a =
person due to=20
the failure of the parking brake. It does not require =
theorizing an=20
extraordinary sequence of events to conclude it is foreseeable =
that a=20
person could be injured by a truck that would roll after the =
parking brake=20
failed.
U-haul=3Ds=20
contractual requirements make it reasonable to find that=20
Hendrixson=3Ds actions=20
were foreseeable. Hendrixson=3Ds methods=20
of inspection were based on methods he acquired while working in =
the=20
moving industry. One method of searching for leaks would be =
to crawl=20
under the vehicle. U-Haul had a duty to maintain the parking =
brakes,=20
and we find reasonable minds could differ on the evidence =
regarding=20
whether Hendrixson=3Ds injury=20
was forseeable and the breach of U-Haul=3Ds duty was=20
a proximate cause of appellant=3Ds=20
injury.
Negligent=20
Misrepresentation
We turn=20
now to the issue of negligent misrepresentation and =
Hendrixson=3Ds alleged=20
reliance on the statement made by the U-Haul salesman. The =
elements=20
of a negligent misrepresentation claim are: (1) the =
defendant=3Ds making a=20
representation in the course of its business, or in a transaction =
in which=20
it has a pecuniary interest; (2) the defendant=3Ds=20
supplying Afalse=20
information@ =
for the=20
guidance of others in their business; (3) the =
defendant=3Ds failing=20
to exercise reasonable care or competence in obtaining or =
communicating=20
the information; and (4) the plaintiff=3Ds=20
suffering pecuniary loss by justifiably relying on the=20
representation. Allied Vista, Inc. v. Holt, 987 =
S.W.2d 138,=20
141 (Tex. App.CHouston=20
[14th Dist.] 1999, pet. denied). Under the Texas Rules of =
Civil=20
Procedure, a no-evidence summary judgment motion must state the =
elements=20
as to which there is no evidence. Tex. R. Civ. P. =
166a(i). =20
U-Haul maintained that Hendrixson did not rely on the statement of =
its=20
employee. Therefore, reliance is the only element challenged =
in the=20
motion.
The=20
plaintiff=3Ds reliance=20
must be reasonable and justified. Am. Tobacco Co. v.=20
Grinnell, 951 S.W.2d 420, 436 (Tex. 1997). Hendrixson =
testified=20
he did not inspect the truck on-site because the U-Haul salesman =
told him=20
that it was Aready to=20
go.@ =20
Hendrixson contends the inspection of the truck in his driveway =
fulfilled=20
his contractual obligation. The fact Hendrixson drove away =
after=20
being told the truck was Aready to=20
go,@ =
and his=20
stating in his affidavit that he relied on the statement, may be =
construed=20
as some evidence of reliance, raising a material fact=20
issue.
After=20
reviewing the summary judgment evidence, we find there is a =
genuine issue=20
of material fact concerning the claims advanced by Hendrixson and, =
thus,=20
summary judgment is inappropriate. Accordingly, we sustain=20
Hendrixson=3Ds point of=20
error and reverse the judgment of the trial court and remand for =
further=20
proceedings.
/s/ =20
J. Harvey Hudson
Justice
Judgment=20
rendered and Memorandum Opinion filed August 9, 2007.
Panel=20
consists of Chief Justice Hedges and Justices Hudson and=20
Guzman. =20
|