Opinion
No. 14-08-00331-CV
Opinion filed September 22, 2009.
On Appeal from the 163rd District Court Orange County, Texas, Trial Court Cause No. B-050,545-AC.
Panel consists of Chief Justice HEDGES and Justices YATES and FROST.
MEMORANDUM OPINION
In this case a law enforcement officer brought negligence claims against landowners seeking damages for injuries he sustained when he was struck by a vehicle on a highway adjacent to the landowners' property. The officer, who, at the time of the accident, was responding to a call for assistance involving loose livestock along the highway, alleged that the landowners were negligent in allowing cattle to roam and in failing to properly maintain and secure the fence and gate. The trial court granted summary judgment in favor of the landowners. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Anthony Britt, a law enforcement officer, responded to a dispatch call for assistance involving cattle on the loose near a highway that abutted property belonging to appellees James B. Jones and James B. Jones, III Family Limited Partnership (collectively referred to hereinafter as "Jones"). According to the pleadings, Britt was standing in the middle of South Highway 62 in Orange County when he was struck by a vehicle traveling on the highway. He sustained a number of injuries. Britt claimed that when the vehicle struck him, he was herding cattle back onto Jones's fenced property.
Britt brought suit against the driver of the vehicle and Jones, seeking damages for the injuries he sustained in the accident. According to his petition, Britt alleged that Jones negligently allowed the cattle to roam on the highway, failed to properly secure the gate and fence, and failed to maintain the fence in proper condition.
Britt's claims against the driver were severed from the claims against Jones. In his live petition, Britt also named another person whom he alleged was negligent in allowing the cattle to roam and in failing to maintain and secure fencing and a gate. However, Britt's claims against this defendant were dismissed without prejudice.
James B. Jones and the James B. Jones, III Family Limited Partnership each filed traditional and no-evidence motions for summary judgment; the trial court did not rule on these motions. Collectively, Jones filed an amended motion for summary judgment on both traditional and no-evidence grounds, asserting in relevant part that there was no evidence that Jones owned the cattle or that Jones's conduct breached a duty or proximately caused Britt's injuries. In support of the summary judgment motion, Jones included deposition testimony from a number of individuals, including James Lee Duhon, who had helped corral the cattle and witnessed the accident. In response to Jones's amended motion, Britt pointed to evidence of Duhon's written statement taken by an accident investigator and Duhon's deposition testimony to support Britt's claim that Jones owned the cattle.
The trial court granted Jones's amended motion for summary judgment in its entirety on a no-evidence basis, making the following observations:
• Local stock laws of Orange County require that a common law negligence standard governs Britt's claims.
• Duhon lacked sufficient personal knowledge under Texas Rule of Evidence 602 to testify to ownership of the cattle.
• Duhon's written statement taken by investigators, in which Duhon asserted that the cattle belonged to Jones, is a prior inconsistent statement and cannot be offered as substantive testimony of the cows' ownership.
• Britt had the burden of pleading and establishing the doctrine of res ipsa loquitur and failed to introduce evidence sufficient to establish applicability of that doctrine to preclude summary judgment.
The trial court rendered a take-nothing judgment in favor of Jones and dismissed Britt's claims against Jones with prejudice.
In a single issue, Britt asserts the trial court erred in granting summary judgment in favor of Jones. In support, Britt contends that Duhon had sufficient knowledge under Texas Rule of Evidence 602 to identify Jones as the cattle's owner. Furthermore, Britt contends that Duhon's written statement, in which Duhon claimed that Jones owned the cattle, was not a prior inconsistent statement. Finally, Britt contends that the doctrine of res ipsa loquitur is applicable to the claims presented.
II. ANALYSIS
In reviewing a no-evidence motion for summary judgment, we ascertain whether the nonmovant pointed out summary-judgment evidence raising a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex. 2002). In our de novo review of a trial court's summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
Under the Texas Agriculture Code, a livestock owner may be liable for negligence if the owner's livestock strays onto highways. See TEX. AGRIC. CODE ANN. §§ 143.101-.102 (Vernon 2004); Gibbs v. Jackson, 990 S.W.2d 745, 749 (Tex. 1999) (declining to adopt common law duty of negligence for livestock roaming on farm-to-market roads); Beck v. Sheppard, 566 S.W.2d 569, 572-73 (Tex. 1978) (applying common law duty for owner to act with due care to keep livestock from escaping onto a highway). Texas Agriculture Code section 143.102, entitled "Running at Large on Highway Prohibited," provides that "[a] person who owns or has responsibility for the control of a . . . cow . . . may not knowingly permit the animal to traverse or roam at large, unattended, on the right-of-way of a highway." TEX. AGRIC. CODE A NN. § 143.102 (Vernon 2004). As defined in the Texas Agriculture Code, a "highway" is a "U.S. highway or a state highway in this state, but does not include a numbered farm-to-market road." Id. § 143.101 (Vernon 2004); see Gibbs, 990 S.W.2d at 749. The Texas Agriculture Code also prohibits livestock from roaming at large if a county has elected to en act local option stock law s. See TEX. AGRIC. CODE ANN. § 143.074 (Vernon 2004). Under a statutory prohibition of the Texas Agriculture Code or under local option stock laws, to hold an owner liable for livestock roaming at large on a highway, some fault must be attributed to the owner. See Goode v. Hauer, 109 S.W.3d 788, 792 (Tex. App.-Corpus Christi 2003, pet. denied). However, the presence of livestock on a roadway does not create a presumption that an owner was negligent. See Beck, 566 S.W.2d at 572.
The trial court's order indicates that Orange County has passed such local stock laws.
In the amended motion for summary judgment, Jones asserted that there is no evidence that Jones allowed any cattle to roam unattended on the highway or that the cattle at issue belonged to Jones. Jones asserted there is no evidence that Jones's conduct proximately caused Britt's injuries or that Jones's conduct breached a duty. Jones indicated that there is no evidence of the manner the cows' escape or the location from whence they came.
In response to Jones's motion, Britt pointed to Duhon's written statement to investigators and excerpts of Duhon's deposition testimony to support his claims that Jones owned the cattle. In the deposition, Duhon admitted being familiar with the Jones family. Duhon's uncle had lived on Jones's property, and Duhon had visited Jones's property on several occasions. Duhon acknowledged giving a statement to accident investigators. Duhon's statement was taken by an investigating officer and provided in part, "I met with the officer [Britt] and told him the cow belonged to Dr. [James B.] Jones and he was on his way out." However, in his deposition, Duhon did not recall making this statement to investigators and maintained that he did not know who owned the cows or how to identify Jones's cattle.
Presuming without deciding that Jones owned the cattle in question, the evidence upon which Britt relies does not support his negligence claims against Jones. See, e.g., McNeal v. Thom as, No. 13-03-347-CV, 2005 W L 375482, at *5 (Tex. A pp.-Corpus C hristi Feb. 17, 2005, no pet.) (providing that even if summary-judgment evidence established that a person owned a cow, the evidence did not establish that the person knowingly permitted the cow to roam under section 143.102 of the Texas Agriculture Code). To the contrary, Duhon's deposition testimony, to which Britt refers, suggests that the cattle were no longer in the vicinity when Britt was struck. Duhon explained that once he arrived on the scene, he saw the cattle only for about five minutes and that the cattle "weren't around for very long." Duhon described how he helped Britt corner the cattle into a driveway area with a gate that leads onto Jones's fenced property. Duhon claimed that the gate was closed, chained, and locked. According to Duhon, even if he could have corralled the cattle through the gate, the cattle would not have been able to traverse the twenty-foot cattle guard, which was located in front of the gate. Duhon did not notice any portion of Jones's fence that was down to permit the cattle's escape. Duhon explained that after he cornered the cows near the gated area, the cows remained there for only a few minutes before they ran north along the fence line between a parked vehicle and the fence and disappeared into the darkness.
In making this presumption, we also presume without deciding that Duhon had sufficient personal knowledge to identify Jones as the owner and that Duhon's written statement supported the ownership as substantive evidence.
Duhon estimated that the cattle had not been in the vicinity for roughly twenty to thirty minutes before Britt was struck by the vehicle. He indicated that he and Britt chatted for a few minutes after dealing with the cattle, and then Britt directed traffic. Duhon saw the vehicle hit Britt. Duhon indicated that Britt was standing in the roadway "flagging" traffic at the time of the accident. He described how the vehicle maneuvered around other vehicles parked along the highway. The vehicle did not swerve before hitting Britt.
In viewing the summary judgment proof under the applicable standard, Britt's evidence does not raise a genuine issue of material fact as to whether Jones's conduct proximately caused Britt's injuries. See Beck, 566 S.W.2d at 573. Britt has presented no evidence that any cow was on the highway at the time of the accident or that any cow caused the driver to operate her vehicle in such a manner as to strike Britt. Britt has presented no evidence that Jones's fences were down or that Jones's gate was open. See id. Likewise, Britt provided no evidence that cattle escaped Jones's property. See Gibbs, 990 S.W.2d at 746. There is no evidence suggesting that Jones did not exercise due care or that Jones should have been alerted that cattle had escaped Jones's property and were roaming. See Beck, 566 S.W.2d at 573.
Britt points to evidence that he claims suggests Jones's negligence, such as the fact that a cow made its way to the nearby gate on Jones's property. However, factual inferences and presumptions cannot be derived from uncertain, unknown, or unproven facts. See id. at 571 (requiring a proven or known fact as a necessary predicate to a presumption). The presence of livestock on a highway and the proximity of the accident to Jones's property do not create a presumption that Jones was negligent. See id. at 571-72 (involving a factual issue as to owner's negligence that rested on an unsupported presumption); see also McNeal, 2005 WL 375482, at *5 (determining that summary-judgment proof as to owner's negligence in permitting cattle to roam was speculative).
The trial court's order provided that Britt failed to introduce evidence sufficient to establish applicability of res ipsa loquitur to preclude summary judgment. Britt argues on appeal that this doctrine is applicable to the facts of this case. Even if we accept as true Britt's argument that the doctrine applies, the fact that livestock were present on the roadway does not create a presumption that an owner was negligent. See Beck, 566 S.W.2d at 572. This is especially true in light of Duhon's testimony that the cows were not in the vicinity at the time the vehicle struck Britt.
Britt presented no evidence that Jones was negligent or that Jones's conduct proximately caused the injuries. See Beck, 566 S.W.2d at 573 (determining that no more than a scintilla of evidence demonstrated livestock owner's or property owner's common law negligence); see also McNeal, 2005 WL 375482, at *5 (affirming summary judgment when summary-judgment evidence did not raise a fact issue as to common-law and statutory claims that owner failed to maintain fence or knowingly permitted cattle to roam at large on a highway). Therefore, the trial court did not err by granting Jones's no-evidence motion for summary judgment because no genuine issue of material fact exists concerning whether Jones breached a statutory duty or proximately caused Britt's injuries. Accordingly, we overrule Britt's sole issue on appeal and affirm the trial court's judgment.
Even if we were to presume Britt established that Jones owed a duty under local county stock laws to prevent livestock from roaming, to the extent Britt argues that Jones proximately caused Britt's injuries, Britt has produced no evidence that Jones breached any such duty. See Beck, 566 S.W.2d at 573. Britt produced no evidence that Jones's gate or fence were in disrepair or that, by reason of Jones's negligence, any cattle could escape Jones's property. See id. (concluding no evidence was presented to support claim that owner of livestock did not exercise due care).