Before Justices Longoria, Silva, and Peña Memorandum Opinion by Justice Silva Appellant Kathy L. McCarty appeals the trial court’s order granting summary judgment in favor of appellee Whataburger Restaurants, LLC. By five issues, which we have reordered, McCarty argues that the trial court erred by (1) granting summary judgment in favor of Whataburger on the totality of McCarty’s negligence; (2) granting summary judgment on McCarty’s cause of action for a laceration and injuries to her arm; (3) granting summary judgment despite McCarty’s complaints regarding Whataburger’s spoliation of evidence; (4) granting summary judgment in contravention of the Bexar County District Courts’ local rules; and (5) denying McCarty’s motion for new trial. We reverse and remand. I. BACKGROUND[1] According to McCarty’s live pleading, she and her husband visited a Whataburger in Clyde, Texas while on an extended road trip. After McCarty finished filling her drinks at the soda fountain, she began to turn away when a Whataburger employee carrying a condiment tray collided into her. The pleading alleged that the tray struck her left arm just above the elbow and, after returning to her vehicle, she realized her left arm wasbleeding. McCarty treated the wound and continued on the road trip. However, over the course of the next two weeks, McCarty experienced pain under her left arm, swollen lymph nodes, and extensive blisters covering her upper left arm, later diagnosed as cellulitis.[2] Once McCarty returned home, she sought medical treatment from a local clinic. After further medical complications, McCarty developed tremors in her left hand, lost the ability to lift more than ten pounds, began experiencing fluctuating blood glucose levels, and is limited in her day-to-day activities due to pain and physical limitations. McCarty also developed a heart condition. McCarty alleged that Whataburger and its employees were negligent by: (1) failing to reasonably keep the condiment tray in good repair and free from defects that are capable of cutting human skin; (2) failing to reasonably inspect the condiment tray; (3) failing to repair or remove the damaged condiment tray from use, circulation, and interaction with customers; (4) failing to properly clean and sanitize the condiment tray; (5) failing to walk at a reasonable speed inside the restaurant so as not to collide with customers at the drink fountain; (6) walking too closely to customers who have their backs turned at the drink fountain and cannot see employees approaching them; (7) not watching where they are walking while holding a defective and dangerous condiment tray; and (8) colliding with a customer while walking too quickly and holding a dangerous object. McCarty further alleged that Whataburger was negligent in its hiring, training, retention, and supervision of its employee. Whataburger filed a combined traditional and no-evidence motion for summary judgment. For its traditional motion for summary judgment, Whataburger argued that it was entitled to summary judgment because “McCarty ha[d] failed to connect the dots between the incident, her infection, and her subsequent heart condition,” which it asserted required expert testimony. Whataburger further argued that because McCarty had not identified any physician as an expert witness who could “link[] her infection to a Whataburger tray,” it was “entitled to summary judgment as a matter of law.” As evidence, Whataburger attached to its motion McCarty’s deposition, her husband’s deposition, and McCarty’s designation of expert witnesses. For its no-evidence motion for summary judgment, Whataburger argued that McCarty could not produce more than a scintilla of evidence that Whataburger had breached any duty owed to her or that any alleged breach proximately caused her injuries.[3] McCarty responded to Whataburger’s motion, attaching twenty-seven of her own exhibits, including several photos, highlighted portions of her and her husband’s depositions, and medical records. McCarty argued that she did not need an expert witness to establish her case because lay opinion testimony was sufficient to prove causation where a layperson could determine, with reasonable probability, the causal relationship between the event and the subsequent condition based on general experience and common sense. To defeat Whataburger’s no-evidence challenge to breach and causation, McCarty pointed to her testimony that a Whataburger employee collided into her, which she believes caused the cut on her arm as there was no other potential cause for the cut. McCarty also pointed to her husband’s deposition testimony that he identified the wound when she returned to the vehicle, treating it with his first aid kit. Both McCarty and her husband’s deposition testimony recounted McCarty’s condition in the days that followed the incident. After her response, McCarty nonsuited her claim for negligent hiring, training, retention, and supervision. After additional replies from each party, the trial court granted Whataburger’s combined traditional and no-evidence motion for summary judgment without indicating which of the two it was granting, dismissing “all of [McCarty]‘s claims.” McCarty filed a motion for new trial and a motion to modify the judgment, neither of which were ruled on by the trial court. This appeal followed. II. APPLICABLE LAW AND STANDARD OF REVIEW A. Applicable Law The elements for a negligence claim are (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; and (3) the plaintiff suffered damages proximately caused by the defendant’s breach. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Proximate cause is further broken down into two elements: cause in fact and foreseeability. Id. at 551. “For a negligent act or omission to have been a cause-in-fact of the harm, the act or omission must have been a substantial factor in bringing about the harm, and absent the act or omission—i.e., but for the act or omission—the harm would not have occurred.” Rodriguez–Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (per curiam). A plaintiff proves foreseeability of the injury by establishing that “a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission.” Mason v. AMed-Health, Inc., 582 S.W.3d 773, 790 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (quoting Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016)). It is not required that the exact sequence of events that caused an injury be foreseeable, only that there is general danger. Id. (citing County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002)). “To establish the breach, the plaintiff must prove that the defendant’s conduct constituted negligence, which is ‘simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done.’” Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 607 (Tex. 2016) (quoting Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998)). B. Standard of Review Summary judgment is reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Our de novo standard of review extends to both traditional and no-evidence summary judgments. Shaun T. Mian Corp. v. Hewlett–Packard Co., 237 S.W.3d 851, 855 (Tex. App.—Dallas 2007, no pet.). For a traditional summary judgment, the movant bears the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. TEX. R.CIV.P.166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). To meet its burden, the summary judgment movant must either disprove at least one essential element of a claim as a matter of law or conclusively establish all elements of an affirmative defense to the claim. Sorrow v. Harris Cnty. Sheriff, 622 S.W.3d 496, 501 (Tex. App.—Houston [14th Dist.] 2021, pet. denied) (citing Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996) (per curiam)). Once the movant produces sufficient evidence establishing its right to summary judgment, the nonmovant must produce controverting evidence raising a fact issue on the elements or claims negated. Tawil v. Cook Child.’s Healthcare Sys., 582 S.W.3d 669, 681 (Tex. App.—Fort Worth 2019, no pet.) (citing Van v. Peña, 990 S.W.2d 751, 753 (Tex. 1999)). We take as true all evidence favoring the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Dorsett, 164 S.W.3d at 661. Circumstantial evidence may be offered to raise an issue of material fact so long as the evidence transcends mere suspicion. Harrell v. Hochderffer, 345 S.W.3d 652, 661(Tex. App.—Austin 2011,no pet.)(citing Ford Motor Co. v.Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)). A no-evidence summary judgment is properly granted if, after adequate time for discovery, the movant asserts there is no evidence supporting one or more specified elements of a claim or defense on which the nonmovant bears the burden of proof at trial, and the nonmovant then produces no summary judgment evidence raising a genuine issue of material fact on those elements. TEX.R.CIV.P.166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (per curiam). Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard of review governing the latter. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). We sustain no-evidence or legal sufficiency challenges where (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Chapman, 118 S.W.3d at 751. Less than a scintilla of evidence exists when the evidence is so weak it does no more than create a surmise or suspicion of a fact. Id. Evidence so slight that making an inference from it would be no more than a guess is in legal effect no evidence. Ridgway, 135 S.W.3d at 601. More than a scintilla of evidence exists when it is sufficient to enable reasonable and fair-minded people to differ in their conclusions. Chapman, 118 S.W.3d at 751. And a matter may be conclusively established by the evidence “only if reasonable people could not differ in their conclusions,” which “depends on the facts of each case.” City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). In reviewing no-evidence summary judgments, we review both the movant and nonmovant’s evidence in the light most favorable to the party against whom summary judgment was rendered. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). We indulge every reasonable inference and resolve any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (citing City of Keller, 168 S.W.3d at 823). We credit evidence favorable to the party against whom summary judgment was rendered if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Mack Trucks, 206 S.W.3d at 582 (citing City of Keller, 168 S.W.3d at 827). When a successful summary judgment movant presents both traditional and no evidence grounds, we must affirm it if it can be sustained under either standard. Bradford Partners II, L.P. v. Fahning, 231 S.W.3d 513, 517 (Tex. App.—Dallas 2007, no pet.). We first review the propriety of the no-evidence summary judgment under Rule 166a(i), applying evidentiary legal sufficiency standards. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). If those are not satisfied, we need not inquire further into whether the “traditional” summary judgment standards under Rule 166a(c) are met; claims that survive are then reviewed under the traditional standard. Id. at 219–20. When the trial court does not specify the basis for its summary judgment, we must affirm it on any meritorious ground raised in the motion. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000). III. ANALYSIS A. No-Evidence Summary Judgment In her arguments, McCarty does not distinguish between the traditional and no- evidence grounds on appeal. However, McCarty does argue that the evidence she presented to the trial court constitutes more than a mere scintilla such to survive Whataburger’s motion. At the outset, we identify the extent of Whataburger’s no-evidence motion as generally challenging the elements of breach and causation. The entirety of Whataburger’s no-evidence challenge to McCarty’s negligence claim reads: Plaintiff purports to state a claim of general negligence against Whataburger. Under Texas law, [t]he elements of a negligence cause of action are (1) the existence of a legal duty, (2) a breach of that duty, and (3) damages proximately caused by the breach. Plaintiff has not brought forward a scintilla of evidence that Whataburger breached any duty owed to Plaintiff. Further, Plaintiff has not brought forward a scintilla of evidence that any alleged breach by Whataburger proximately caused Plaintiff’s alleged injuries. In the absence of evidence of these essential elements, Whataburger is entitled to summary judgment under the no evidence rules of procedure. Thus, Whataburger only challenged the existence of evidence supporting the elements of breach and causation rather than the existence of expert testimony to support causation, which was raised only in its traditional motion for summary judgment. As evidence of breach of a duty, McCarty points to her own deposition testimony that, at a minimum, a Whataburger employee carrying a condiment tray collided into her. In response, Whataburger focuses on what it argues were multiple stacked inferences by McCarty to support breach. However, Whataburger’s contention regarding such inferences actually relates to different theories that McCarty alleged as ways Whataburger could have breached its duty. Among those theories is that the Whataburger employee breached the standard of care by (5) failing to walk at a reasonable speed inside the restaurant so as not to collide with customers at the drink fountain; [or] (6) walking too closely to customers who have their backs turned at the drink fountain and cannot see the employees approaching them. Accordingly, McCarty’s uncontroverted testimony that a Whataburger employee collided with her in the restaurant is sufficient to create a genuine issue of material fact as to whether Whataburger breached its duty of care owed to her. See Gardiner, 505 S.W.3d at 607; Chapman, 118 S.W.3d at 751. As to causation, McCarty makes two general arguments: (1) lay opinion testimony is sufficient in this case; and (2)if lay opinion testimony is not sufficient, at least the portion of her claim that relates to the initial laceration does not need an expert witness’s opinion. Whataburger, on appeal, contends that her testimony was not sufficient to prove that the collision caused her subsequent infection and heart condition. However, Whataburger only generally challenged the existence of evidence supporting causation, it did not parse through McCarty’s various claimed injuries or seek partial summary judgment. Accordingly, McCarty only needed to produce sufficient evidence for causation of some injury, which we conclude she did. Although the extent of laceration to McCarty’s arm is disputed, she testified that she did not have the laceration before the collision and no other possible cause is readily apparent to her. McCarty does not need to prove that the Whataburger employee could foresee that the collision could specifically cause her laceration, only that bumping into a person could cause an injury. See Mason, 582 S.W.3d at 790. McCarty’s testimony was sufficient to create a genuine issue of material fact that Whataburger’s breach caused her laceration. See Urena, 162 S.W.3d at 550; Chapman, 118 S.W.3d at 751. B. Traditional Summary Judgment As for Whataburger’s traditional motion for summary judgment, it challenged the existence of an expert witness to establish the connection between the laceration and subsequent infection and heart condition. Whataburger attached McCarty and her husband’s deposition testimonies and her designation of expert witnesses as evidence. However, this evidence does not conclusively negate that the alleged breached caused her injuries, as is required to succeed on a traditional summary judgment motion. See Sorrow, 622 S.W.3d at 501. Rather, Whataburger’s argument constitutes a no-evidence challenge. See Guevara v. Ferrer, 247 S.W.3d 662, 669–70 (Tex. 2007) (concluding that the evidence was legally insufficient where expert testimony was required to establish causation but none was provided); see also Chapman, 118 S.W.3d at 750–51 (noting that the standard for a no-evidence challenge is the same as a legal sufficiency challenge). Accordingly, because Whataburger did not meet its burden of establishing a right to summary judgment, McCarty was never required to respond with evidence that would create a genuine issue of material fact. See Sorrow, 622 S.W.3d at 501; Tawil, 582 S.W.3d at 681 (“In a traditional summary-judgment case, the issue on appeal is whether the movant met the summary-judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.”); see also FM Props. Operating, 22 S.W.3d 872–73 (permitting appellate courts to affirm on any meritorious grounds when the trial court does not identify the grounds on which it granted summary judgment).[4] Accordingly, having concluded that McCarty produced sufficient evidence to create a genuine issue of material fact as to the challenged elements and that Whataburger never established the right to judgment as a matter of law on its traditional motion for summary judgment, we sustain McCarty’s first issue.[5] IV. CONCLUSION We reverse the trial court’s judgment and remand the case for further proceedings consistent with this opinion. CLARISSA SILVA Justice Delivered and filed on the 6th day of June, 2024.
