Opinion issued April 22, 2014.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00617-CV

———————————

SIMON RAMIREZ, Appellant

V.

COLONIAL FREIGHT WAREHOUSE CO. INC., Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Case No. 2011-20238

O P I N I O N

Simon Ramirez appeals a no-evidence summary judgment granted to 

Colonial Freight Warehouse Co., Inc. on his personal injury suit. In two issues, 

Ramirez contends that the trial court erred in granting summary judgment because 

Ramirez produced evidence sufficient to raise a genuine issue of material fact on 
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each challenged element of his negligence claim. We conclude that Ramirez has 

raised a genuine issue of material fact on each element, precluding summary 

disposition of his claim. We, therefore, reverse and remand. 

Background

Ramirez, a truck driver, was struck by a truck while walking across the 

fueling area of a truckstop. The truck that struck him was driven by a Colonial 

Freight employee, Winnfred Lipsius. Ramirez described the accident in his 

deposition, which he attached as evidence to his summary judgment response. 

According to Ramirez’s testimony, the Colonial Freight truck sat idling in the 

parking lot of the truckstop. Before walking in front of the stopped vehicle, 

Ramirez attempted to make eye contact with the truck’s driver, Lipsius, to ensure 

Lipsius could see him. Ramirez testified that Lipsius was looking to his left and 

never turned forward to see Ramirez standing at the front, passenger side of his 

truck. When Ramirez could not get Lipsius’s attention, Ramirez walked in front of 

the vehicle, leaving a distance of about five feet between the truck and himself. But 

Lipsius’s truck pulled forward before Ramirez made it across. Ramirez heard the 

truck “throttle up” and jumped to move out of the way. The truck’s front, 

passenger side struck him. 

Ramirez also testified about his injuries. Upon impact, he fell to his knees

then “pulled [him]self up” unassisted. He had been carrying two milkshakes in his 
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hands when the accident occurred. The impact and fall did not cause him to drop 

either shake. Nonetheless, he said, “I felt hurt.” He lay down in his truck bunk, 

“already feeling . . . the pain.” He had a cut on his elbow that was bleeding, and his 

left shoulder was red and bruised. He testified that his shoulder hurt immediately: 

“[I]t was just hurting, you know, bullets in the back. And my arm was numb.” 

Also, his neck hurt. He took ibuprofen and drove from Houston, where the 

accident occurred, to Brownsville later that day. 

The next morning, he felt like he “couldn’t get up.” He was examined three 

days after the injury by Dr. Orso, who ordered x-rays. Ramirez understood from 

his conversation with Dr. Orso that he was hurt, that the discs in his spine were out 

of place, and that he would need additional treatment. Though he was told to return

to Dr. Orso’s office in two weeks, he did not. He next saw Dr. Bettencourt who 

performed a procedure on his neck. Later he saw Dr. Aggarwal who gave him 

injections in his neck. Eventually he had neck surgery and shoulder surgery. 

Lipsius testified in his deposition, which also was attached as summary 

judgment evidence, that he had pulled his truck forward from the fueling station to 

a yellow line that designates where trucks need to stop to leave room for another 

truck to enter the fueling station behind them. He then decided he wanted 

something to drink and went inside the store. When he saw the long line, he went 

back to his truck, which was still parked in the fueling area. He started the truck, 
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released the air brake, and then looked both directions. When he looked left he saw 

a truck next to him and waited to see if it was going to exit the fueling area first. 

When that truck stopped, Lipsius removed his foot from the brake, and his truck 

moved forward one or two feet. Immediately after that, he saw Ramirez “spinning 

out from in front of [his] truck . . . .” He had not seen Ramirez before then. Lipsius 

admitted that he did not look around again between the time that his attention was 

focused on the other truck and the moment he began accelerating. He further 

admits that his truck hit Ramirez. 

Lipsius also testified that he had a total of eight “incidents” listed on his 

driving report, which details prior incidents, accidents, tickets, and reasons for 

leaving various employers. He described four of these incidents, which occurred 

over a six-year period. The last involved an accident in which his truck hit a 

guardrail, caught on fire, and “burn[ed] to the ground.” According to Lipsius’s 

deposition testimony, with eight incidents on his report, “nobody else would 

touch” him.

Lipsius testified that he applied online to drive for Colonial Freight and that 

Colonial Freight did not ask for references. No one at Colonial Freight inquired 

about his driving history or past accidents. Lipsius testified that he told the 

Colonial Freight “safety/recruiting” employee about the guardrail accident and that 

he was fired as a result, and she told him “not to say anything” about that accident 
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to anybody else in the company. He eventually told the company owner about the 

incident and was told “not to worry about it.” 

Ramirez sued Colonial Freight, alleging that the accident caused his personal 

injuries and required subsequent surgical procedures to his neck and shoulder. 

Colonial Freight moved for no-evidence summary judgment, contending that 

Ramirez had no evidence of the breach and causation elements of his negligence 

claim and, therefore, also had no evidence on two elements of his negligent 

entrustment and negligent hiring claims. Ramirez responded, attaching as evidence 

his and Lipsius’s depositions. Ramirez did not file his own affidavit or an affidavit 

from any physician in response to the summary judgment motion. The trial court 

granted Colonial Freight’s motion without specifying the element for which 

Ramirez failed to produce evidence. Ramirez appealed. 

Standard of Review

In a Rule 166a(i) no-evidence summary judgment, the movant contends that 

no evidence exists as to one or more essential elements of the nonmovant’s claims, 

upon which the nonmovant would have the burden of proof at trial. TEX. R. CIV. P.

166a(i). The nonmovant has the burden to present evidence raising a genuine issue 

of material fact on the challenged elements. Id. A no-evidence summary judgment 

is essentially a pre-trial directed verdict. Bendigo v. City of Houston, 178 S.W.3d 

112, 113–14 (Tex. App.—Houston [1st Dist.] 2005, no pet.). 
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On review, we ascertain whether the nonmovant produced more than a 

scintilla of probative evidence to raise a genuine issue of material fact. Aleman v. 

Ben E. Keith Co., 227 S.W.3d 304, 308 (Tex. App.—Houston [1st Dist.] 2007, no 

pet.). More than a scintilla exists if the evidence “‘rises to a level that would enable 

reasonable and fair-minded people to differ in their conclusions.’” King Ranch, 

Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharm., 

Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). If the evidence does no more 

than create a mere surmise or suspicion of fact, less than a scintilla of evidence 

exists. Havner, 953 S.W.2d at 711–12. To defeat a no-evidence motion for 

summary judgment, the nonmovant is not required to marshal its proof; his 

response need only point out evidence that raises a fact issue on the challenged 

elements. TEX. R. CIV. P. 166a(i) cmt.; Saenz v. S. Union Gas Co., 999 S.W.2d 

490, 493–94 (Tex. App.—El Paso 1999, pet. denied). 

Ramirez’s Summary Judgment Evidence 

Colonial Freight’s motion focused on the breach and proximate cause 

elements of negligence. In response, Ramirez attached Lipsius’s deposition 

transcript and his own deposition transcript, contending that Lipsius’s testimony 

raised an issue of material fact on the breach element while his testimony raised an 

issue on causation by establishing the nature and extent of his injuries and that the 

“onset of painful symptoms began at the moment of the incident.” We must 
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determine whether Ramirez’s summary judgment evidence raised an issue of 

material fact on each of the challenged elements of his negligence claim.

Breach Element

Colonial Freight moved for no-evidence summary judgment on the breach 

element of the negligence claim, arguing that there was no evidence that Lipsius’s 

conduct fell below the standard of care of a driver or violated a statute. 

A negligence cause of action has three elements: (1) a legal duty, (2) breach 

of that duty, and (3) damages proximately resulting from the breach. See Praesel v. 

Johnson, 967 S.W.2d 391, 394 (Tex. 1998). A person owes another the duty to act 

as a reasonably prudent person would act under the same or similar circumstances 

regarding a reasonably foreseeable risk. Colvin v. Red Steel Co., 682 S.W.2d 243, 

245 (Tex. 1984). 

Colonial Freight challenges the second element of Ramirez’s negligence 

claim: breach of the duty of reasonable care. Ramirez’s summary judgment 

response identified specific portions of Lipsius’s deposition testimony that he 

claims raised a fact issue. Lipsius testified that he looked both directions before 

attempting to drive away from the truckstop. When he looked left, he saw a truck 

next to him and waited to see if it was going to exit the fueling area first. When 

that truck did not go, Lipsius removed his foot from the brake, and his truck moved 

forward one or two feet. Lipsius admitted that he did not look around again 
8

between the time that his attention was focused on the other truck and the moment 

he began accelerating. 

Viewing this evidence in the light most favorable to the nonmovant, 

reasonable and fair-minded people could differ in their conclusions about whether 

Lipsius was negligent in failing to look out for pedestrians near his truck before 

accelerating. See City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005) 

(stating that evidence is to be viewed in light most favorable to nonmovant). 

Accordingly, we conclude that Ramirez raised a genuine issue of material fact on 

the breach element of his negligence claim to avoid summary judgment on that 

issue.

Causation Element

To establish causation in a personal injury case, a plaintiff must prove that 

the defendant’s conduct caused an event and that the event caused the plaintiff to 

suffer compensable injuries. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 

499 (Tex. 1995). 

Ramirez contends that he properly defeated Colonial Freight’s summary 

judgment motion challenging his evidence on the causation element because his 

deposition established the nature and extent of his injuries and the “onset of painful 

symptoms began at the moment of the incident.” Ramirez referred to his attached 

deposition in his summary judgment response; however, he did not refer to any 
9

portion of the deposition with specificity. He also did not rely on expert testimony

to establish causation. 

We consider first whether Ramirez’s nonspecific reference to his deposition, 

attached in its entirety as summary judgment evidence, adequately pointed out that 

evidence to the trial court for consideration in ruling on the summary judgment 

motion.

A. Whether Ramirez’s reference to evidence was adequate

A general reference to a voluminous summary judgment record is 

inadequate to meet the evidentiary burden in a summary judgment. See Rogers v. 

Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989) (“Such a general reference to 

a voluminous record which does not direct the trial court and parties to the 

evidence on which the movant relies is insufficient.”); Eaton Metal Prods., L.L.C. 

v. U.S. Denro Steels, Inc., No. 14-09-00757-CV, 2010 WL 3795192, *6 (Tex. 

App.—Houston [14th Dist.] Sept. 30, 2010, no pet.) (holding that “[b]lanket 

citation to voluminous records” of approximately 700 pages was improper and did 

not raise a fact issue). This Court similarly has held that a trial court did not abuse 

its discretion in refusing to consider summary judgment evidence attached to a 

summary judgment response when the nonmovant attached a complete deposition 

transcript that was over 500 pages in length without referring the trial court to any 

specific portion of the deposition. Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. 
10

App.—Houston [1st Dist.] 1996, no writ); cf. Nicholson v. Naficy, 747 S.W.2d 3, 4 

n.1 (Tex. App.—Houston [1st Dist.] 1987, no writ) (refusing to consider testimony 

from deposition in appellate record that “was not cited, quoted, [or] attached to any 

motion or response” as summary judgment evidence).

The deposition here, however, was attached and was not voluminous. It 

consisted of 110 total pages of testimony. Ramirez’s testimony about his injuries 

began on page 56 and concluded by page 102. 

We have previously noted that when a party attaches as summary judgment 

evidence a complete deposition transcript that is brief and provides a description of 

the facts sufficient to “connect . . . the facts to the challenged elements of the 

cause,” the party has met its burden to point the trial court to evidence raising a 

fact issue. See Aleman, 227 S.W.3d at 309–10 (stating that “sheer brevity of the 

evidence cited served to adequately ‘connect . . . the facts to the challenged 

elements of the causes of action’” and, therefore, holding that party met “minimum 

requirements” of Rule 166a(i) to point out evidence that raises fact issue on 

challenged elements) (quoting Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d 

862, 869 (Tex. App.—Houston [1st Dist.] 1999), aff’d, 73 S.W.3d 193 (Tex. 

2002)). Similarly, in Stephens v. Precision Drilling Oilfield Servs. Corp., No. 01-

11-00326-CV, 2013 WL 1928797, at *7 (Tex. App.—Houston [1st Dist.] May 9, 

2013, no pet.) (mem. op.), this Court held that a general reference to all unattached 
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pleadings, arguments, and evidence is insufficient to invoke particular evidence for 

summary-judgment purposes but an express reference to a short affidavit is 

sufficient to point out that piece of evidence and have it considered. Id. (citing 

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207–08 (Tex. 2002)); see 

also Barraza v. Eureka Co., a Div. of White Consol. Indus., Inc., 25 S.W.3d 225, 

229–30 (Tex. App.—El Paso 2000, pet. denied) (holding that general reference to 

non-voluminous deposition transcripts and other evidence of less than 300 pages 

attached as summary judgment evidence was adequate); Gallegos v. Johnson, No. 

13-07-00603-CV, 2010 WL 672934, at *6 (Tex. App.—Corpus Christi Feb. 25, 

2010, no pet.) (mem. op.) (holding that nonspecific reference to 185 pages of 

deposition transcripts in summary judgment response was sufficient because record 

was not voluminous and a “mere cursory review of the deposition testimony . . . 

raised issues of material fact regarding the underlying” claim).

Ramirez attached his own deposition as summary judgment evidence and 

referred the trial court to it, stating that it contained evidence of the nature and 

extent of his injuries and that his symptoms began with this accident. Ramirez 

testified that he suffered back and shoulder pain immediately after the impact and 

that it continued until he sought medical attention from Dr. Orso three days later. 

Ramirez’s testimony on these issues begins on the 56th page of his deposition.
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We conclude that Ramirez’s nonspecific reference to his deposition 

testimony was adequate, given the brevity of the deposition and lack of complexity 

of issues raised and addressed in the deposition. Aleman, 227 S.W.3d at 309–10. 

Ramirez also relied on medical records to demonstrate his injuries. Ramirez 

did not attach these records to his summary judgment response. Instead, he referred 

to the records previously filed with the trial court as attachments to Texas Civil 

Practice and Remedies Code section 18.001 affidavits. TEX. CIV. PRAC. & REM.

CODE ANN. § 18.001 (allowing uncontroverted affidavits of medical expenses to 

support finding of fact by judge or jury that amount charged was reasonable and 

service was necessary). In total, there were 27 pages of medical records from four 

doctors.

Colonial Freight contends that the medical records were not part of the 

summary judgment record and, therefore, could not be used as evidence to defeat 

its motion when the trial court made its ruling. Colonial Freight further contends 

that Ramirez waived any argument that the records can be considered on appeal 

because he did not challenge the trial court’s denial of his motion to reconsider the 

grant of summary judgment to Colonial Freight.

A nonmovant responding to a summary judgment motion is not required to 

“needlessly duplicate evidence [that is] already found in the court’s file.” Saenz, 

999 S.W.2d at 494. Instead, he can request in his motion that the trial court take 
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judicial notice of evidence already in the record or, alternatively, incorporate that 

evidence in his motion by reference. Steinkamp v. Caremark, 3 S.W.3d 191, 194–

95 (Tex. App.—El Paso 1999, pet. denied); Fears v. Tex. Bank, 247 S.W.3d 729, 

734–35 (Tex. App.—Texarkana 2008, pet. denied); Sadler v. Tex. Farm Bureau 

Mut. Ins. Cos., No. 04-12-00789-CV, 2013 WL 4736392, at *3 (Tex. App.—San 

Antonio Sept. 4, 2013, no pet.) (mem. op.). 

Incorporating by reference does not require “magic language”; instead, the 

nonmovant simply must alert the court that previously filed documents are being 

relied upon and make the court aware of which ones are to be considered. 

Steinkamp, 3 S.W.3d at 194; see Saenz, 999 S.W.2d at 494. Ramirez stated in his 

summary judgment response that “Plaintiff[’s] medical and billing records . . . have 

been produced to all Defendants and have been on file with this Court pursuant to 

TEX. CIV. PRAC. & REM. CODE ANN. § 18.001.” Ramirez argued that these records 

raised an issue of material fact on proximate cause. That reference was adequate to 

include the medical records in Ramirez’s summary judgment evidence that was 

before the trial court when it ruled. Because the records were incorporated in 

Ramirez’s summary judgment response, Colonial Freight’s waiver argument is 

overruled.

Having concluded that the references to the deposition testimony and the 

medical records were adequate to bring them within the summary judgment 
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evidence, we consider next whether Ramirez’s evidence raised an issue of material 

fact to defeat Colonial Freight’s no-evidence summary judgment motion on 

causation absent expert testimony.

B. Causal link between incident and injuries

Non-expert evidence can be sufficient to support a finding of causation “in 

limited circumstances where both the occurrence and conditions complained of are 

such that the general experience and common sense of laypersons are sufficient to 

evaluate the conditions and whether they were probably caused by the occurrence.” 

Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007); see also Figueroa v. Davis, 

318 S.W.3d 53, 60–61 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (holding 

that, in some circumstances, lay testimony can establish logically traceable 

connection between event and condition and be sufficient proof of causation). The 

evidence must be adequate to allow a layperson, using general experience and 

common sense, to determine the causal relationship with reasonable probability. 

Guevara, 247 S.W.3d at 668.“[L]ay testimony establishing a sequence of events 

which provides a strong, logically traceable connection between the event and the 

condition is sufficient proof of causation.” Morgan v. Compugraphic Corp., 675 

S.W.2d 729, 733 (Tex. 1984); Guevara, 247 S.W.3d at 669 (holding that lay 

testimony was legally sufficient to support jury’s finding that at least some of 

medical expenses were causally related to automobile accident that same day); see 
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also Sw. Bell Tel., L.P. v. Valadez, No. 2-07-129-CV, 2008 WL 425746, at *3

(Tex. App.—Fort Worth Feb. 14, 2008, no pet.) (holding that plaintiff’s testimony 

was legally sufficient evidence of causation to support jury’s verdict given that 

type and extent of injuries suffered were within layperson’s common knowledge 

and expectation). 

In Figueroa, the plaintiff hit his mouth on the steering wheel during a car 

accident. 318 S.W.3d at 58, 61. The plaintiff testified that his mouth hurt, his teeth 

were cracked, and, after just a couple of days, his teeth broke into pieces and fell 

out. See id. at 61. The defendant argued that there was legally insufficient evidence 

that the dental injury was caused by the accident. Id. at 58. This Court concluded 

that the plaintiff’s lay testimony was legally sufficient evidence of causation, 

stating that the evidence was “akin to the ‘pain, bone fractures, and similar basic 

conditions following an automobile collision’ that the Guevara court indicated 

would fall within the common experience of lay persons so that causation could 

stand on lay testimony.” Id. at 61; see also Valadez, 2008 WL 425746, at *3 

(holding that plaintiff’s lay testimony—that he experienced severe pain to shoulder 

immediately upon falling into hole, combined with evidence that he had not had 

pain before accident—sufficed to show causation).

Ramirez complained of immediate pain in his back, neck and shoulder. He 

testified that he was “already feeling . . . the pain,” which was like “bullets in the 
16

back,” as well as numbness in his arm before he left the truckstop. The next 

morning was worse; he felt like he “couldn’t get up.” Ramirez’s medical records 

corroborate his deposition testimony that he complained of pain in his back and 

shoulder immediately after the accident These complaints of pain and general 

soreness fall within the general knowledge and experience of lay persons and are 

the types of complaints that would be expected following impact with a vehicle. 

Guevara, 247 S.W.3d at 668; Figueroa, 318 S.W.3d at 60–61. We conclude that 

Ramirez met his burden, through lay testimony, to defeat Colonial Freight’s noevidence summary judgment motion on the causation element of negligence.

C. Causal link between conduct and incident

Colonial Freight also argues that Ramirez was the sole proximate cause of 

the accident because he acted unreasonably by walking in front of Lipsius’s truck 

without confirming that Lipsius saw him there. “Sole proximate cause” means the 

“only” proximate cause; if there is more than one proximate cause of an event, no 

single proximate cause can be considered the sole cause. See First Assembly of 

God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 493 (Tex. App.—Dallas 2001, 

no pet.) We have already concluded that Ramirez raised an issue of fact as to 

whether Lipsius’s negligence caused the accident and whether the accident caused 

his injuries; therefore, Colonial Freight could not, as a matter of law, obtain noevidence summary judgment on its sole proximate cause theory. 
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We turn next to the other negligence-based claims Ramirez asserted, which 

are negligent entrustment and negligent hiring.

Negligent Entrustment

Ramirez sued Colonial Freight on a negligent entrustment theory in addition 

to general negligence. To prevail on a negligent entrustment theory, a plaintiff 

must show (1) that the vehicle owner entrusted the vehicle (2) to an unlicensed, 

incompetent, or reckless driver, (3) that the owner knew or should have known that 

the driver was unlicensed, incompetent, or reckless, (4) that the driver was 

negligent on the occasion in question, and (5) that the driver’s negligence 

proximately caused the accident. See Goodyear Tire & Rubber Co. v. Mayes, 236 

S.W.3d 754, 758 (Tex. 2007); Schneider v. Esperanza Transmission Co., 744 

S.W.2d 595, 596 (Tex. 1987).

Colonial Freight challenges the last two elements of Ramirez’s negligent 

entrustment claim. We have already concluded that Ramirez raised an issue of 

material fact on each of those issues; therefore, Colonial Freight was not entitled to 

no-evidence summary judgment on this claim.

Negligent Hiring

Ramirez also contended that Colonial Freight was liable for negligently 

hiring Lipsius. An employer has a general duty to adequately hire, train, and 

supervise its employees. See Houser v. Smith, 968 S.W.2d 542, 544 (Tex. App.—
18

Austin 1998, no pet.) A claim of negligent hiring and supervision is based on the 

employer’s direct negligence: an employer who negligently hires an incompetent 

or unfit individual may be directly liable to a third party whose injury was 

proximately caused by the employee’s negligent or intentional act. Verinakis v. 

Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.—Houston [14th Dist.] 1998, 

pet. denied) (citing Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. 

Akins, 926 S.W.2d 287, 294 (Tex. 1996). Colonial Freight challenges only those 

elements of Ramirez’s negligent hiring cause of action related to its employee’s 

negligence and proximate cause. We have determined that Ramirez raised a fact 

issue on each element; therefore, Colonial Freight is not entitled to summary 

judgment on this claim.

Conclusion

Having concluded that Ramirez raised a genuine issue of material fact on 

each element Colonial Freight challenged in its no-evidence summary judgment 

motion, we further conclude that the trial court erred in granting summary 

judgment to Colonial Freight.
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The trial court’s judgment is reversed, and the cause is remanded to the trial 

court for further proceedings consistent with this opinion.

Harvey Brown

Justice

Panel consists of Justices Keyes, Bland, and Brown.