COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00269-CV

JERRY C. HAMILTON APPELLANT

V.

XTO ENERGY, INC. APPELLEE

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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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MEMORANDUM OPINION1

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I. Introduction

In four issues, Appellant Jerry C. Hamilton appeals the trial court’s 

summary judgment for Appellee XTO Energy, Inc. We affirm.

 

1See Tex. R. App. P. 47.4.
2

II. Background

On November 7, 2006, Hamilton, a Bobcat Pressure Control, Inc.

employee, was working at an oil and gas well site with Craig Childers, an 

employee of Mercer Well Service, when he injured his hand.2 Hamilton sued 

XTO, the well site operator, for negligence.3 XTO filed two combined traditional 

and no-evidence motions for summary judgment, which the trial court granted.4

This appeal followed.

III. Summary Judgment

In four issues, Hamilton complains that the trial court erred by granting 

summary judgment for XTO because genuine issues of material fact exist as to 

whether (1) XTO was a property owner of the well site as defined in civil practice 

and remedies code chapter 95; (2) Hamilton’s injury arose from the condition or 

use of an improvement to real property under chapter 95; (3) XTO retained 

control of the well site and had actual knowledge of the danger or condition that 

 

2When Childers turned on the engine of the rig, Hamilton’s hand became 

trapped between a flat piece of metal and a cable.

3Hamilton sued Bobcat but later nonsuited it; the trial court subsequently 

allowed XTO to designate Bobcat as a responsible third party. Hamilton also 

sued Mercer. See Hamilton v. Tex. CES, Inc., No. 02-10-00142-CV, 2011 WL 

1435238, at *1 (Tex. App.—Fort Worth Apr. 14, 2011, no pet.) (mem. op.) 

(affirming summary judgment for Mercer on limitations grounds).

4

The trial court granted the no-evidence portion of XTO’s first motion but 

did not specify upon which no-evidence ground or grounds the motion was 

granted. When it granted XTO’s second motion, it also did not specify upon 

which grounds.
3

resulted in Hamilton’s injury; and (4) XTO owed Hamilton legal duties. The first 

three issues are all premised on Hamilton having a viable negligence claim, 

without which the application of chapter 95 is of no significance. See, e.g.,

Pasadena Ref. Sys., Inc. v. McCraven, Nos. 14-10-00837-CV, 14-10-00860-CV, 

2012 WL 1693697, at *4 (Tex. App.—Houston [14th Dist.] May 15, 2012, no pet.) 

(mem. op.) (stating that when chapter 95 applies, a property owner will not be 

liable for negligence claims arising from failure to provide a safe workplace 

unless the exception under section 95.003 is met).

In both of its motions for summary judgment, XTO argued that Hamilton 

was unable to present any competent evidence to show that XTO owed Hamilton

a legal duty, that XTO had breached any alleged duty, or that the alleged breach 

had proximately caused Hamilton’s injury.5 See Nabors Drilling, U.S.A., Inc. v. 

Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (stating that a negligence claim 

requires showing that the defendant owed the plaintiff a legal duty, a breach by 

the defendant of that duty, and damages proximately caused by the breach). 

When the trial court’s judgment rests upon more than one independent ground, 

the aggrieved party must assign error to each ground, or the judgment will be 

 

5XTO also argued that there was no evidence of actual control by XTO, 

that it had no duty to warn of open and obvious dangers, and that there was no 

evidence that it had failed to adequately warn of a dangerous condition of which 

it had actual knowledge. In the traditional portion of its motions, XTO argued that 

civil practice and remedies code chapter 95 protected it from liability in that XTO 

had no control over Hamilton’s work and that the alleged dangerous condition on 

the well site was open, visible, and known to Hamilton. See Tex. Civ. Prac. & 

Rem. Code Ann. §§ 95.001–.003 (West 2011).
4

affirmed on the ground to which no complaint is made. Scott v. Galusha, 890 

S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ denied). Therefore, we need 

not address the issues Hamilton raises because the trial court did not specify 

upon which ground summary judgment was granted and because Hamilton has 

failed to adequately address the other grounds upon which the trial court could 

have granted summary judgment, in particular, XTO’s no-evidence ground with 

regard to proximate cause.

Hamilton’s causation discussion on appeal falls within his overarching 

review of legal duties, in which he merely asserts that either fatigue or an 

incompetent company man caused his injury. But Hamilton provides no 

explanation of, or citations to authority to support, how any of these alleged 

breaches proximately caused his injury. See Tex. R. App. P. 38.1(i) (stating that 

a brief must contain a clear and concise argument for the contentions made, with 

appropriate citations to authorities and the record).6 And when, as here, a trial 

court’s order granting summary judgment does not specify the ground or grounds 

relied on for its ruling, summary judgment will be affirmed on appeal if any of the 

theories presented to the trial court and preserved for appellate review are 

meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216

(Tex. 2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

 

6As pointed out in the dissenting opinion, Hamilton does include citations to 

the record.
5

Further, even if Hamilton had raised and had provided an analysis of 

proximate cause in his fourth issue, the components of proximate cause—cause 

in fact and foreseeability—cannot be established by mere conjecture, guess, or 

speculation. Doe v. Boys Club of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex. 

1995); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (op. on reh’g). 

The test for cause in fact is whether the negligent act or omission was a 

substantial factor in bringing about injury and without which the harm would not 

have occurred. Doe, 907 S.W.2d at 477; McClure v. Allied Stores of Tex., Inc., 

608 S.W.2d 901, 903 (Tex. 1980). Cause in fact is not shown if the defendant’s 

negligence did no more than furnish a condition that made the injury possible. 

Doe, 907 S.W.2d at 477; see also Hang On II, Inc. v. Tuckey, 978 S.W.2d 281, 

284 (Tex. App.—Fort Worth 1998, no pet.).

Likewise, conclusory statements by an expert are not sufficient to defeat 

summary judgment. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. 

Mason, 143 S.W.3d 794, 803 (Tex. 2004). An expert’s opinion cannot rest on the 

expert’s subjective interpretation of the facts but must be supported by the facts 

in evidence. See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 239–40 (Tex. 

2010); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003). For 

example, in Wal-Mart Stores, Inc. v. Merrell, the supreme court held that an 

expert’s testimony that halogen lamps can cause fires did not establish that the 

particular lamp in question caused the fire at issue in the case. 313 S.W.3d 837, 

838, 840 (Tex. 2010) (holding that a doctor’s conclusion that failure of the lamp 
6

was “‘consistent with the facts of [the] case’” amounted to little more than 

speculation). And we have previously held that expert opinions and conclusions 

on causation not supported by facts in the summary judgment record are based 

on speculation and conjecture. See Hanson v. Greystar Dev. & Constr., LP, 317 

S.W.3d 850, 854–55 (Tex. App.—Fort Worth 2010, pet. denied) (stating that,

absent factual support, the expert’s opinion that the plaintiff’s fall on stairs 

happened because of irregularities in those stairs and because of inadequate 

lighting was conclusory and constituted no evidence); see also Connaway v. Vill. 

Farms, L.P., 200 S.W.3d 353, 357–58 (Tex. App.—Dallas 2006, no pet.) (holding 

that testimony attributing dust in area around collision as coming from a farm—

without evidence connecting the dust to the farm—was conclusory and 

speculative and showed only that the witnesses believed that the dust came from 

the farm).

A. Hamilton’s Summary Judgment Responses and Evidence

1. Response to XTO’s First Motion

In Hamilton’s response to the no-evidence portions of XTO’s first motion,

he asserted that XTO breached three legal duties: (1) the duty of ordinary care 

to provide a reasonably safe workplace and to adequately help employees when 

Frank Cummings, an independent contractor who supervised the site for XTO as 

contract completion foreman, left the scene before the injury occurred; (2) the

duty of ordinary care with regard to providing rules and regulations for safety; and 

(3) the duty to protect independent contractors when it retained some control 
7

over the details of their work. As on appeal, Hamilton contended that XTO’s 

failure to supervise work hours, to ensure adequate rest—particularly with regard 

to proper training of supervisors in the face of fatigue information available 

through the federal government—and to provide for a supervisor on site at all 

times constituted breaches of legal duties owed to him and proximately caused 

his injuries.

a. Fatigue Evidence

Hamilton attached a copy of Plain Language About Shiftwork, a 1997 

booklet published by the United States Department of Health and Human 

Services,

7

and he attached a portion of his deposition in which he testified that it 

 

7

The public health summary at the beginning of the thirty-nine page booklet 

states:

What are the hazards? 

Shiftworkers and night workers often are tired and sleepy 

because of their work schedule. Being overly tired makes it difficult 

to concentrate, which increases the possibility of errors or accidents. 

This can be a risk both to the worker and to the public. The stress of 

shiftwork also can aggravate health conditions, such as heart 

disease or digestive disorders.

How do these hazards occur?

Working at night makes it difficult to get enough sleep. Sleep 

after night work usually is shorter and less refreshing or satisfying 

than sleep during the normal nighttime hours. Brain and body 

functions slow down during the nighttime and early morning hours. 

The combination of sleep loss and working at the body’s low-point 

can cause excessive fatigue and sleepiness. This makes it more 

difficult to perform well, which increases the risk of accidents. Also, 

shiftwork can be stressful because of frequent switching from a day 
8

was typical for Bobcat employees to work twelve to fourteen hours per day or 

more, although “[i]t could be two hours, it could be 20.” Hamilton also attached 

his affidavit, in which he stated that he would wake up between 4:00 a.m. and 

5:00 a.m. to drive an hour to Bobcat’s office, then drive ninety minutes to two 

hours to the job site, and then work twelve hours, on average, before making the 

return trip. Hamilton stated that it was not uncommon to work sixteen-toseventeen-hour days.

Hamilton also attached some of XTO’s invoices and job tickets showing 

workers’ hours, although none of these showed either Hamilton’s hours or the 

hours worked by Childers, the Mercer employee who engaged the rig’s engine 

and trapped Hamilton’s hand. Several of the work tickets were from companies 

other than Bobcat or Mercer.8

 

to night schedule and because of separation from family and friends. 

These stresses can be harmful to health.

How can these hazards be avoided?

Many workers cannot avoid night or rotating shiftwork. 

Therefore, this booklet suggests ways of coping with shiftwork. 

Organizational or group approaches include redesigning the work 

schedule, redistributing the workload, improving the work 

environment, and instituting programs to improve worker awareness. 

Individual approaches include improved sleep strategies, exercise 

and diet programs, and relaxation techniques.

8Some of the various work tickets for hours worked that were billed to XTO 

list “Ronny Perry Construction” or “ORBIT Construction” at the top; show 

inconsistent time ranges, varying from 1.5 to 14 hours daily between October 16, 

2006, and November 6, 2006; and do not list workers who were present at the 

accident.
9

Invoices bearing Mercer’s logo show five workers, none of whom were 

Childers—although some of whom may have been present at the incident—

working from 8:00 a.m. to 8:30 p.m. on October 4, 2006; from 5:30 a.m. to 8:30 

p.m. on October 5, 2006; from 4:30 a.m. to 9:30 p.m. on October 6, 2006; and 

from 4:30 a.m. to 8:00 a.m. on October 9, 2006. A Mercer invoice for October 4–

9, 2006 billed XTO for 39.5 cumulative hours for “rig and crew,” for an additional 

8.5 hours of travel, and for an additional 39.5 hours for an additional crewman for 

the job. The incident involving Hamilton occurred on November 7, 2006, and 

there is no work ticket from that day included in the record.

Although this evidence suggests that employee fatigue can cause 

accidents and that circumstances existed under which Hamilton could have been 

fatigued, Hamilton made no such assertion in his affidavit and did not assert that 

his fatigue led to the accident. More importantly, none of this evidence even 

raises an inference, much less a fact question, about whether Childers was 

fatigued or whether Childers’s fatigue, if any, led to the accident.

b. Supervision Evidence

Hamilton attached the XTO incident investigation report, in which the 

following were listed as “key facts” and “associated circumstances or conditions”:

Two tasks were being performed at the same time (use of 

sandline/winchline)[;]

Hand signals were used but the meanings were mis-identified. A 

thumbs up was given by one of the BobCat hands in the basket 

indicating to hold the present position, but operator 1 viewed it as 

needing to lift it up and thus have the clutch en-gauged [sic][;]
10

Pre-job safety meeting was held, but this particular hazard/causal 

factor was unusual and not discussed[;]

This job requires 2 companies to work together-equipment and 

people.

Sandline is not used very often on rigs anymore[;]

Throttling up the winch line causes the sand line to throttle up 

when en-gauged. [sic] The air lines are tied together[; and]

Language barrier.

In a portion of his deposition, Hamilton described how his hand was caught 

and complained that XTO failed to train its employees because Cummings 

should have been on site at all times during the operation and “[s]hould have 

never left and went and voted. He should have stayed there until the job was 

done and made sure everybody was all right.”

Hamilton also attached portions of the deposition by James Yeager, an 

XTO employee, who testified that Cummings was on site to look over XTO’s 

interests by seeing that the companies XTO had hired were doing the job they 

had agreed to do. Yeager said that if Cummings saw something that needed to 

be changed, he was to talk to the contractors’ supervisors and that if Cummings 

saw “something there[,] he would shut it down.” Yeager admitted that Cummings 

was not on site at the time of the incident but said that when Cummings had left 

was “the best time to go” because Bobcat and Mercer were between processes 

and “all they [were] doing [was] whipping out their own equipment” and not 

“pulling pipe.”
11

Yeager said that with regard to the incident and better communications, 

“there was maybe some trouble with hand signals . . . and things like that that 

they don’t maybe totally understand. Somebody made a mistake and so it could 

be something like that, and like I said, some of them don’t speak English very 

well.” He said that multi-tasking could have caused the problem because the 

Mercer and Bobcat employees were “running the wench line first and they were 

running the sand line at the same time,” when they could have finished one and 

then worked on the other. Yeager added that he had been told that “it was 

unusual for them to be doing it this way and so, you know, they are running the 

equipment down at the same time—at the same time running the sand line back 

here.”9

With regard to this evidence, Hamilton does not make any attempt to 

explain why his injury would not have occurred if Cummings had been at the 

work site. For example, he does not explain how Cummings’s presence would 

have, or even could have, prevented the miscommunication in hand signals to 

which the accident report attributed his injury.

 

9Yeager also testified that XTO’s contractors were responsible for 

providing safety and training for contractor employees as far as “their tasks, the 

equipment, and everything—everything that they do. They are required to train 

their own employees.” Hamilton also included a copy of the contract between 

Cummings and XTO, which makes clear that Cummings was himself an 

independent contractor working month-to-month with XTO since August 22, 

2005.
12

2. Response to XTO’s Second Motion

While XTO’s first summary judgment motion was pending, Hamilton added 

more negligence claims against XTO, alleging that XTO had failed to use 

ordinary care in providing employees adequate help in the performance of work

and that XTO was liable for the negligent hiring, supervision, training, and 

retention of its employees and contractors because it had hired employees 

without administering drug tests to applicants, without requesting that applicants 

provide information for background checks, and without requiring formal training 

or prior experience in the oil and gas field for supervisory positions such as 

consultants and contract foremen.10 Specifically, Hamilton complained that 

Cummings was not on site when the incident occurred, that Cummings did not 

have any experience pertaining to snubbing—the activity that had led to 

Hamilton’s injury—and that at least two other accidents pertaining to snubbing 

units occurred while Cummings was the contract foreman.

In response to XTO’s second motion, Hamilton attached the same 

evidence as he had to his earlier response, but he also attached the following 

additional evidence pertinent to the alleged duties and breaches: the master 

 

10Additional claims recited again by Hamilton had already been raised in 

his previous petition.
13

services contract between XTO and Bobcat,11 excerpts from Cummings’s 

deposition, and an affidavit by Dr. Merrill M. Mitler, Ph.D., a sleep expert.

a. Additional Fatigue Evidence 

In his deposition, Cummings stated that twelve hours was a normal work 

day and that he could not say that fatigue would be a factor at the end of such a 

day.

In his affidavit, Dr. Mitler testified about his research into fatigue and stated 

that he had reviewed the XTO incident investigation report, Bobcat’s first report 

of injury, Hamilton’s affidavit, and Mercer’s daily work reports for other workers 

dated October 4–9, 2006, and had concluded the following:

Mr. Hamilton was involved in a work and commuting schedule that 

limited the amount of rest he could obtain, producing fatigue that 

would be sufficient to impair attention and motor coordination[;]

The reported cause of Mr. Hamilton’s injury was human error. The 

work environment at [the well site] involved heavy equipment and 

multiple operators who spoke different languages and used hand 

signals to coordinate their actions. In such environments, worker 

 

11The master services contract provided that Bobcat was responsible, 

among other things, for providing “all necessary safeguards for the protection of 

all aspects of the Work and all persons employed directly or indirectly by the 

Contractor, Subcontractors or third parties.” It also stated that XTO’s 

responsibilities were to furnish materials and equipment that it had agreed to 

furnish, provide access to the site, and furnish necessary construction utilities. 

And it specified that Bobcat would comply with all federal, state, and local laws, 

“including, but not limited to . . . the Occupational Safety and Health Act and all 

those requirements and regulations relating in any way to employment practices 

and protection of the environment,” as well as all applicable XTO rules and 

regulations relating to the safety and security of persons and property, and plant 

work hours, among other things.
14

fatigue can be expected to increase the risk of inattention and 

human error resulting in work-related injuries[;]

Fatigue was a contributing cause to the human errors leading up to 

Mr. Hamilton’s injury[; and]

Mr. Hamilton’s employer and/or site supervisor were negligent in 

allowing their workers to work excessive hours. Such excessive 

work schedules produce fatigue and lead to increases in human 

error of the kind that were responsible for Mr. Hamilton’s injury.

Dr. Mitler based his opinion on Hamilton’s affidavit, the work hours that 

some of the workers at the site had performed in the month before Hamilton’s 

injury, and the accident’s timing near the end of Hamilton’s work day. However, 

none of Hamilton’s evidence reflects that he or any other witness to the injury or 

subsequent injury investigation suggested that fatigue had anything to do with 

the accident or the miscommunication identified in XTO’s incident investigation 

report as the accident’s root cause.

Further, by itself, Dr. Mitler’s subjective conclusion that fatigue was a 

contributing cause to the accident constitutes nothing more than mere 

speculation.

12

 See TXI Transp. Co., 306 S.W.3d at 239. And none of the

evidence establishes that Hamilton was actually fatigued, that Childers was 

fatigued, or that fatigue is what caused Childers to be inattentive or to 

misinterpret the signal that led to Hamilton’s injury.

 

12Because there is no evidence raising a genuine issue of material fact as 

to fatigue as the injury’s cause in fact, we do not reach foreseeability. See Doe, 

907 S.W.2d at 477; Travis, 830 S.W.2d at 98.
15

b. Additional Supervision Evidence

In his deposition, Cummings admitted that he had no formal training with 

regard to rig operation and had never done any snubbing, but he also remarked 

that he would do everything he could to keep a snubbing unit from being rigged 

up on a well because such units were inherently dangerous, citing two other 

accidents that involved a snubbing unit. And he stated that he had worked in the 

oil and gas industry for the majority of his working life and had obtained his 

experience on the job. Cummings said that he had contracted with XTO after emailing his resume to XTO’s production superintendant when Cummings learned 

that XTO was looking for well-site consultants and then had an informal meeting 

with XTO. He provided references but did not know if XTO had checked them 

and said that XTO did not drug test him or ask for his criminal background.13 

Cummings said that he had spoken with XTO’s production superintendant before 

leaving the site to vote on the day of the accident and that there was “about 

another hour’s worth of work to do” when he left.

Hamilton’s argument that the incident could have been prevented had 

Cummings been present, properly trained, and experienced in snubbing lacks 

support in the record to raise a fact issue with regard to proximate cause. 

 

13Cummings acknowledged a 1972 possession of marijuana conviction for 

which he was pardoned in 1984 and a DWI in the late 1990s. He also admitted 

that he was a recovering alcoholic and that his last drink had been on May 17, 

1998. Cummings stated that XTO’s production supervisor knew that he was a 

recovering alcoholic.
16

Hamilton would have needed to produce more than a scintilla of evidence to 

show that the incident would not have happened but for Cummings’s absence, 

lack of training, or experience in snubbing, which he has not done, and he 

produced no evidence to show how the presence of a properly trained and 

experienced on-site supervisor would have prevented the miscommunication 

attributed to causing the accident. See Doe, 907 S.W.2d at 477; McClure, 608 

S.W.2d at 903. None of Hamilton’s evidence raises a fact question about 

whether or how Cummings’s absence or other perceived inadequacies caused 

the accident.14

B. Conclusion

Assuming without deciding that XTO owed Hamilton one or more of the 

duties that he claims and breached those duties, based on the record in this 

case, as set out above, Hamilton failed to produce more than a scintilla of 

probative evidence that any such breach proximately caused his injury. See 

Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009) (stating that a no-evidence 

summary judgment is not proper if the nonmovant brings forward more than a 

scintilla of probative evidence that raises a genuine issue of material fact). Dr. 

Mitler’s report constitutes mere speculation that fatigue contributed to Hamilton’s 

injury, and none of Hamilton’s other evidence raises a fact issue on either of the 

 

14To the contrary, even if Cummings was inadequate to perform his job, his 

absence would have negated any damage that could have otherwise been 

caused by his inadequacies.
17

alleged breaches—inadequate supervision by Cummings and worker fatigue—

that he claims proximately caused his injuries. Therefore, the trial court did not 

err by granting XTO’s motions for summary judgment on the no-evidence ground 

pertaining to proximate cause, and we affirm the summary judgment on this 

ground. See Martinez v. ACCC Ins. Co., 343 S.W.3d 924, 928 (Tex. App.—

Dallas 2011, no pet.) (“If the appellant does not challenge one of the grounds for 

summary judgment, an appellate court may affirm the summary judgment on that 

ground alone.”). We overrule Hamilton’s fourth issue and need not address his 

remaining issues with regard to XTO’s affirmative defense. See Tex. R. App. P. 

47.1.

IV. Conclusion

Having overruled Hamilton’s fourth issue, we affirm the trial court’s 

judgment.

BOB MCCOY

JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

WALKER, J., filed a dissenting opinion.

GABRIEL, J., concurs without opinion.

DELIVERED: September 27, 2012
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00269-CV

JERRY C. HAMILTON APPELLANT

V.

XTO ENERGY, INC. APPELLEE

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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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DISSENTING MEMORANDUM OPINION1

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I respectfully dissent from the majority opinion’s holding that appellant 

Jerry C. Hamilton failed to adequately brief the proximate-causation element of 

his negligence claim.2 Furthermore, to the extent that the majority nonetheless 

 

1See Tex. R. App. P. 47.4.

2Hamilton mentioned or discussed the causation element multiple times 

(on at least seven separate pages) in his brief, asserting that his injuries were 

“caused by human error brought on by fatigue,” that “[f]atigue caused the 

accident which forms the basis of this suit and Hamilton’s injuries, according to 

Hamilton’s expert witness, Dr. Merrill Mitler,” that “XTO’s actual knowledge of the 
2

addresses the merits of Hamilton’s issues and holds that he failed to present any 

evidence of causation, I also dissent.

The majority thoroughly discusses the evidence presented by Hamilton to 

establish causation—a United States Department of Health and Human 

Services’s 1997 booklet titled Plain Language About Shiftwork; the affidavit and 

deposition testimony of Hamilton; deposition testimony of the contract completion 

foreman on the well site, Frank Cummings, and of XTO employee James 

Yeager; XTO’s invoices and job tickets showing the long hours worked on the 

well site; XTO’s incident investigation report; and the affidavit of sleep expert Dr.

Merrill M. Mitler, Ph. D. I will not rehash that evidence here. Nevertheless, the 

majority concludes that, assuming XTO owed Hamilton a duty and breached that 

duty, Hamilton “failed to produce more than a scintilla of probative evidence that 

any such breach proximately caused his injury.” Id. at 16.

 

fatigue of its employees and failure to warn of the dangers of fatigue at the site 

proximately caused Hamilton’s injuries,” that “XTO’s breach of duty to provide a 

reasonably safe workplace caused Hamilton’s injury,” that “XTO’s breach of not 

providing its employees with adequate help in the form of a competent company 

man proximately caused Hamilton’s injuries,” that XTO’s breach of its “duty to 

hire, supervise, train or retain competent employees . . . proximately caused 

Hamilton’s injuries,” and that the early departure of the foreman—“who was 

allegedly responsible for all the work done at the site”—“was the proximate cause 

of the injuries suffered by . . . Hamilton.” Hamilton also specifically discussed his 

summary judgment evidence of causation with citations to the record. See Tex. 

R. App. P. 38.1(i); Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (“Appellate 

briefs are to be construed reasonably, yet liberally, so that the right to appellate 

review is not lost by waiver.”).
3

Applying the appropriate standard of review, examining the entire record in 

the light most favorable to Hamilton as the nonmovant, and indulging every 

reasonable inference and resolving any doubts against XTO’s motion, I would 

hold that Hamilton brought forward more than a scintilla of probative evidence 

that raises a genuine issue of material fact as to the causation element of his 

negligence claim. See Tex. R. Civ. P. 166a(i) & cmt.; Smith v. O’Donnell, 288 

S.W.3d 417, 424 (Tex. 2009); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 

2008); Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); King Ranch, Inc. v. 

Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004). 

I would then address Hamilton’s remaining issues. Because the majority opinion 

does not, I respectfully dissent.

SUE WALKER

JUSTICE

DELIVERED: September 27, 2012