### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00656- CV

Esther Allewitz, Appellant

v. Baltgem Deve lop Corp.; Barget D evelopm ent Cor p.; Kar joy De velopm ent Cor p.; Maxland Developm ent Cor p.; Jopat Bu ildi ng Corp.; Natural Bridge De velopm ent Cor p.; P ajia Realty C orp.; Third Creek LLC; LF VMG MT, Inc.; and FVM GM T, Inc., App ellees

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 26TH JUDICI AL DISTRICT NO. 09- 1090 -C26 , H ONO RAB LE B ILLY RAY STUB B LEF IELD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Esther Allewitz appea ls the take- nothing summary judgme nt g rante d on her neg lige nce and premises liability claims ag ainst the appellee s. Allewitz sued appellee s for damag es 1 arising from a w rec k in which the ca r Allewitz w as driving was broadsided by a vehic le driven by Eusebio Martinez as she pulled out of a drivewa y from proper

ty owned or maintained by appellee s. She alleg ed that appelle es we re n eg lige nt, wer e neg lige nt per se for violating various codes and ordinanc es, and wer e responsible for a premises d ef ec t i n the “dang erous condition cre ated by the portions of the proper ty that obstructed [her] sig ht lines as she was leaving the premises.” The

Appellee s are Ba ltge m Deve lop Corp.; Ba rg et Deve lopment Corp.; Kar joy Deve lopment 1 Corp.; Maxl and Deve lopment C o rp.; J opat Building Corp.; Natura l Br idge Deve lopment Corp.; Pajia Realty Corp.; Third Creek L L C; L FVMG MT, I nc.; and FVMG MT, I nc. They and the trial court de scribe a

ppellees a s “The L andowne r De fenda nts.”trial court g rante d summary judgme nt based on Allewitz’s deposition testimony neg ating causa tion

on her claims as a matter o f l aw . On appea l, Allewitz contends that the summary judgme nt is

err oneous beca

use her testimony was equivoca l and inconclusive and beca use Martinez’s testimony shows a fac t issue exis ts as to causa tion. She also contends that the summary judgme nt violates the policy ag ainst allowing inconsistent fac tual finding s. We affirm. We r eview the district c ourt’s summary judgme nt de novo. Joe v. Two Thirty Nine Joint Venture , 145 S.W .3d 150, 156 (Tex. 2004). Under the traditional summary judgme nt standard, the movant has the burden of showing there is no g enuine issue of materia l fac t and that it is entitled to judgme nt as a matter of law. Tex. R. Ci v . P

. 166a(c ); Browning v. Prostok , 165 S.W .3d 336, 344 (Tex. 2005). W e take as t rue evidence favor able to the non-movant and resolve all doubts in its fa v o r. Joe , 145 S.W .3d at 156. The movant is entitled to summary judgme nt if the evidenc e disproves, as a matter of law, or conclusively neg ates at least one element of the plaintiff’s claims. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason , 143 S.W .3d 794, 798 (Tex. 2004); Friendswood Dev. Co. v . McD ade + Co. , 926 S.W .2d 280, 282 (Tex. 1996).

Appellee s as s er t ed in their motion for summary judgme nt that Allewitz could not prove that appellee s proxi mately cau s ed t h e accident or her injuries in this case . The elements of

a neg lige nce cause of action ar e the exis tence of a leg al duty , a brea ch of that duty , and damag es proxi mately cause d by the brea ch. IHS , 143 S.W .3d at 798. The plaintiff in a premises liability case must establish that the premises owner knew or should have known of a dang erous co n d ition on the premises that prese nted an unrea sonable risk of harm and that the condition proxi mately cause d the plaintiff’s injuries. Brinson Ford, Inc. v. Alger , 228 S.W .3d 161, 162 (Tex. 2007)

. Prox imate

2cause consists of cause in f act and fore seea

bility

. See Leitch v. Hornsby , 935 S.W .2d 114, 118-19 (Tex. 1996). A defe ndant’s neg lige nce or premises defe ct is a cause in fac t of the plaintiff’s injuries if it was a substantial fac tor in bring ing about the in j ury , without which the harm would not have

occur red. See Marathon Corp. v. Pitzner , 106 S.W .3d 724, 727 (Tex. 2003); Doe v. Boys Clubs of Greater Dallas, Inc

. , 907 S.W .2d 472, 477 (Tex. 1995).

A p pellees attache d to their motion for summary judgme nt an excerpt from Allewitz’s deposition. I t provides in rele vant par t as follows: Q. Okay

. How far forwa

rd do y ou think y ou moved befor e y ou actua lly started out? A. I —I rea lly don’t rec all. Q. Afte r y ou inched f

orwa rd some distance , did y ou then look ag ain to y our left? A. Yes. Q. Did y ou have a

clea rer view to y our left a t that point? A. Yes. Q. Did y ou have a view to y our left that was uno bstructed afte r y ou had inched forwa rd? A. I believe so. Q. And what do y ou reme mber seeing afte r y ou had inched forwa rd and looked ag ain to y our left? A. I don’t know. Q. Okay . You didn’t see a ny vehicles a

pproac hing? A. I didn’t see a

ny vehicles a

pproac hing.

3Q. I s it safe to say then that befor e y ou actua lly started out into the intersec tion, into

the roa dway , y ou had a c lear view of tra ffic a

pproac hing f

rom y our left? A. Yes.

. . . . Q. W el l , t h e only rea son I ’m asking , Mrs. Allewitz, is y ou said that perha ps y ou believed that there was a four- way s top, and if y ou thought it was a four- way stop, then traf fic a pproac hing f

rom y our left would ha ve to stop. A. I have no ide a. Q. No idea

whether y ou thought it was a

four- way stop? A. I rea lly don’t rec all. Q. Okay is it possible, Mrs. Allewitz, that the rea son that y ou pulled forwa rd is that y ou thought a

ny traff ic that was c oming f

rom y our left would ha

ve to stop? A. May be. Q. So just—just so we’re clea r, Mrs. Allewitz, y our rec ollection is y ou came to a stop at the stop sign, looked to y our left, saw y our view obstructed by bushes and tree s. A. Yes. Q. Moved for

war d some additional distance. A. Yes. Q. L ooked ag ain to y our left. A. Yes. Q. And no long er ha d any obstructions to y our view. A. Yes. Q. And at that point y ou started a cross the r oad.

4A. Yes.

. . . . Q. So y ou had a c lear

view and just neve r noticed a ny red pic kup coming

. A. Yes. Q. I s it possi ble t hat y ou noticed a vehicle coming but assumed that it would have to stop? A. I didn’t see it coming

. Q. I f y ou had see n it coming, what would y ou have done ? A. I don’t know.

Allewitz unequivoca lly testified th at , af ter stopping at the stop sign, she moved forwa rd and had a view clea

r of any obstructions, saw no vehicles coming , and t h en proce eded into the intersec tion and was struck by a vehicle. Ba sed on this uncontrove rted evidenc e, the alleg ed acts or omissions b y appellee s as well as the alleg ed premises defe ct wer e not a cause of the acc ident or Allewitz’s injuries.

Allewitz arg ues that a fac t issue exis ts here beca use she was equivoca l or inconsistent in her testimony

. She points to her an s we rs i n the excerpt above to which she answe red “I rea lly don’t rec all,” “I have no idea,” and “I don’t know,” but those answe rs did not respond to questions rela ted to causa tion by appellee s’ actions, omissions , or premises conditions. She also points to the following testimony

that prec eded the excerpts quoted above :

I g ot into the car and there was a stop sign. I stopped at the stop sign, I looked to the rig ht and to the l eft, there were a lot of bushes ar ound there or tree s, whateve r they

5wer e, and I started to g o forwa rd. I hear d a sound, but it was too late; by that time it g ot to me.

When asked another time whether she “had the option of moving forwa rd a co n s i d era

ble distance befor e [she] actua lly rea ched the roadw ay ,” she responde d, “I believe so.” She testified that she could not rec all exactly how far forwa rd she moved afte r s t o p p i n g at t he stop sign but befor e enter ing the intersec tion. None of these excerpts conflict with her other more detailed, unequivoca l testimony about what ha

ppened a fter she initially

stopped at the stop sig n. Allewitz also contends that the following excerpts from Martinez’s testimony cre ate a fa ct question as to ca

usation: Q. Okay . Where is she the first time y ou see her? She’s not a

t the point of impact y et, I assume? A. Corre ct. Q. B eca use she’ s moving? A. I don’t know if she w as moving or not. Q. Okay . But whe re w as she the f irst time y ou saw he r? A. At the stop sign. Q. She was a t the stop sign? A. As I was g oing, she was a t the stop sign. When I g ot that c lose, when I noticed she wa s there, I

kept on g oing. Q. Uh-huh. A. And when I kept on g oing, she pulled out rig ht in front of me. And there was no time to reac t, y ou know. I t was alre ady too late.

6Q. Okay

. So when y ou first see her driving east on Sundance Parkwa y , she’s stopped at the stop sig n? A. Corre ct. Q. I s that rig ht? A. She’s stopped, y eah. Q. Okay

. And then y ou keep g oing and, boy , she just pulls out rig ht in front of y ou? A. Corre ct.

This testimony does not controve rt Allewitz’s testimony that she pulled clea r of any visual obstructions on appellee s’ prope rty , saw no onc oming tra ffic, pr ocee ded int o the i ntersec tion, and

was hit by Martinez’s pickup. I t does not cre ate a fac t question about whether appellee s proxi mately

cause d the collision or Allewitz’s injuries.

Allewitz contends that g ranting summary judgme nt for appellee s woul d p ermit the likelihood of inconsistent fac tual finding s. She arg ues that, if the jury believes Martinez’s view of the testimony , the jury will “likely believe that the wre ck was cause d by the visual obstructions,” in conflict with the trial court’s summary judgme nt ruling that it could not have been cause d by the obstructions. This arg ument was not prese nted to the trial court in Allewitz’s response to the motion for summary judgme nt a

nd, there fore , “shall not be considere d on appea l a s g rounds for reve rsal.” Tex. R. Civ. P. 166a(c ). Finally , though we will not specula te on what a jury might find if there wer e

a trial, we observe that a ju ry could believe Martinez’s version of events as well as Allewitz’s version. Martinez’s version does not conflict with or controve rt Allewitz’s version of events or the critica l fac t that Allewitz admit s she had a n unobstructed view

of the roa dway

befor e ente ring it.

7The testimony submit t ed with the summary judgme nt motion and response shows

that there is no g enuine issue o f m at er i al fa ct and that, as a matter of law, appellee s’ actions, omissions , and premises condition wer e not the proxi mate cause of Allewitz’s acc ident or injuries. The c ourt did not err by

g ranting appellee s’ motion for summary judgme nt. Affir med.

G. Alan Waldrop, Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: Aug ust 12, 2010

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