IN THE

TENTH COURT OF APPEALS

No. 10-10-00171-CV

MARY FRANCES HAFERKAMP,

Appellant

v.

SSC WACO GREENVIEW OPERATING

COMPANY, LP, MARINER HEALTHCARE 

MANAGEMENT COMPANY, SSC PASADENA

OPERATING COMPANY, LP, LLC, 

SAVANSENIORCARE, LLC, SAVASENIORCARE

ADMINISTRATIVE SERVICES, LLC,

Appellees

From the 414th District Court

McLennan County, Texas

Trial Court No. 2007-1083-5

MEMORANDUM OPINION

Mary Frances Haferkamp appeals the trial court’s summary judgment in favor of 

SSC Waco Greenview Operating Company LP, Mariner Healthcare Management 

Company, SSC Pasadena Vista Operating Company, SavaSeniorCare, LLC, and 

SavaSeniorCare Administrative Services, LLC (collectively, Appellees). We will affirm.
Haferkamp v. SSC Waco Greenview Operating Co. Page 2

In her second amended petition, Haferkamp sued Appellees for negligence

arising out of an alleged workplace injury. Haferkamp specifically alleged that 

Appellees were nonsubscribers to worker’s compensation insurance and that, while in 

the course and scope of her employment, Haferkamp sustained bodily injuries at 

Appellees’ Greenview Manor nursing home facility in Waco. On the occasion in 

question, Appellees were negligent “in failing to provide [Haferkamp] with a 

reasonably safe place to work” and “in failing to furnish to [Haferkamp] reasonably 

safe and adequate implements or tools with which she could perform her duties for her 

employers without exposing herself to an unreasonable risk of accidental personal 

injuries and disabling injuries.” Appellees’ negligence, “individually and/or

collectively, jointly and severally,” was a proximate cause of Haferkamp’s injuries and 

resulting damages.

Appellees filed a traditional motion for summary judgment on Haverkamp’s 

negligence claim, arguing that: (1) Haferkamp’s deposition testimony conclusively 

established that Appellees’ alleged negligence was not the proximate cause of her 

injuries; (2) the summary-judgment evidence established that Appellees exercised 

ordinary care and thus did not breach their duty to Haferkamp; and (3) SSC Waco 

Greenview Operating Company LP, SSC Pasadena Vista Operating Company, 

SavaSeniorCare, LLC, and SavaSeniorCare Administrative Services, LLC, were not 

Haverkamp’s employers on the date in question and thus cannot be liable.

Haverkamp subsequently filed her third amended petition and asserted two

additional theories of how Appellees allegedly breached their duty to her: (1) “in 
Haferkamp v. SSC Waco Greenview Operating Co. Page 3

failing to have sufficient staff on duty on the occasion in question” and (2) “in violating 

the terms, provisions and mandates of Chapter 411 of the Texas Labor Code” (i.e., 

negligence per se).1 See Thomas v. Uzoka, 290 S.W.3d 437, 445 (Tex. App.—Houston [14th 

Dist.] 2009, pet. denied) (“Negligence per se is not a separate cause of action that exists 

independently of a common-law negligence cause of action. Rather, negligence per se is 

merely one method of proving a breach of duty, a requisite element of any negligence 

cause of action.”) (citations omitted). Haverkamp also added individual defendants 

Leonard Grunstein and Murray Forman.

2

After Haferkamp filed her third amended petition, Appellees did not amend or 

supplement their summary-judgment motion. The trial court severed Haverkamp’s 

claims against Grunstein and Forman, granted Appellees’ motion for summary 

judgment, and dismissed with prejudice Haferkamp’s claims against Appellees in their 

entirety.

 

1 As laid out in the third amended petition, section 411.103 of the Labor Code states:

Each employer shall:

(1) provide and maintain employment and a place of employment that is reasonably 

safe and healthful for employees;

(2) install, maintain, and use methods, processes, devices, and safeguards, including 

methods of sanitation and hygiene, that are reasonably necessary to protect the life, 

health, and safety of the employer’s employees; and

(3) take all other actions reasonably necessary to make the employment and place 

of employment safe.

TEX. LAB. CODE ANN. § 411.103 (West 2006) (emphasis added where emphasis indicated in Haferkamp’s 

petition).

2 Haverkamp alleged that Grunstein and Forman participated in a conspiracy in which they created 

multiple layers of corporate ownership and then used the corporate ownership to hide or obscure their 

true identity as the owners and operators of the Greenview Manor nursing home. Haverkamp alleged 

that the corporate defendants were thus “sham entities which serve[d] no legitimate business purpose 

other than to further the conspiracy of the individual defendants,” and, therefore, liability should be 

imposed on Grunstein and Forman.
Haferkamp v. SSC Waco Greenview Operating Co. Page 4

In her sole issue, Haferkamp contends that the trial court erred in granting 

Appellees’ motion for summary judgment. We review a trial court’s summary 

judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 

2003). In reviewing a traditional motion for summary judgment, we must consider 

whether reasonable and fair-minded jurors could differ in their conclusions in light of 

all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 

755 (Tex. 2007). The movant carries 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). 

The nonmovant has no burden to respond to a summary-judgment motion unless the 

movant conclusively establishes its cause of action or defense. M.D. Anderson Hosp. & 

Tumor Inst., 28 S.W.3d at 23. Once the movant produces sufficient evidence 

conclusively establishing its right to summary judgment, however, the burden shifts to 

the nonmovant to present evidence sufficient to raise a fact issue. Centeq Realty, Inc. v. 

Siegler, 899 S.W.2d 195, 197 (Tex. 1995). In reviewing a traditional summary judgment, 

we must consider all the evidence in the light most favorable to the nonmovant, 

indulging every reasonable inference in favor of the nonmovant and resolving any 

doubts against the motion. See Goodyear Tire & Rubber Co., 236 S.W.3d at 756.

Haferkamp first argues that the trial court erred in granting summary judgment 

to Appellees because their motion for summary judgment was directed to her second 

amended petition rather than her third amended petition, which was the live pleading 

at the time of the summary-judgment hearing. We disagree. 
Haferkamp v. SSC Waco Greenview Operating Co. Page 5

Generally, a movant who does not amend or supplement its pending motion for 

summary judgment to address newly added claims in a subsequent petition is not 

entitled to summary judgment on those claims. Wilson v. Davis, 305 S.W.3d 57, 73 (Tex. 

App.—Houston [1st Dist.] 2009, no pet.); Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 

584, 592 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In such a case, the portion of the 

summary judgment purporting to be final must generally be reversed because the 

judgment grants more relief than requested in the motion. See Wilson, 305 S.W.3d at 73; 

Blancett, 177 S.W.3d at 592. Limited exceptions apply to this rule: when the movant has 

conclusively proved or disproved a matter (usually corresponding to a claim’s element 

or to an affirmative defense) that would also preclude the unaddressed claim as a 

matter of law or when the unaddressed claim is derivative of the addressed claim, and 

the movant proved its entitlement to summary judgment on that addressed claim. 

Wilson, 305 S.W.3d at 73 & n.13.

In her second amended petition, Haferkamp’s sole cause of action against 

Appellees was common-law negligence, which consists of three elements: (1) a legal 

duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) damages 

proximately caused by that breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 

2002). Appellees moved for summary judgment in part on the third element—that the 

summary-judgment evidence conclusively established that Appellees’ alleged breach of 

duty was not the proximate cause of Haferkamp’s injuries.

In her third amended petition, Haferkamp did not add any additional 

independently viable causes of action to the lawsuit. Instead, she added two additional 
Haferkamp v. SSC Waco Greenview Operating Co. Page 6

theories of how Appellees allegedly breached their duty to her.3 To succeed on her 

negligence claim as alleged in her third amended petition, however, Haferkamp still 

had to establish that Appellees’ alleged breach of duty was the proximate cause of her 

injuries. Because we conclude below that Appellees conclusively established that their 

alleged breach was not the proximate cause of Haferkamp’s injuries, Haferkamp cannot 

establish her negligence claim as alleged in her third amended petition. Thus, the trial 

court did not err by granting Appellees’ motion for summary judgment and dismissing 

with prejudice Haferkamp’s claims against Appellees in their entirety.

Haferkamp next argues that the trial court erred in granting summary judgment 

to Appellees because the summary-judgment evidence establishes a genuine issue of 

material fact. But, as just stated, we conclude that Appellees have conclusively 

established that their alleged breach of duty was not the proximate cause of 

Haverkamp’s injuries.

Proximate cause is generally a fact question. Ambrosio v. Carter’s Shooting Ctr., 

Inc., 20 S.W.3d 262, 266 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). A lack of 

proximate cause may be established as a matter of law, however, where the evidence is 

without material dispute and the circumstances are such that reasonable minds could 

not arrive at a different conclusion. Id. It may also be a question of law when the 

relationship between the plaintiff’s injuries and the defendant’s negligence is attenuated 

or remote. Id.

 

3 She also added Grunstein and Forman as individual defendants and alleged conspiracy and alter ego 

claims against them as theories of recovery. But, as stated above, these claims were severed.
Haferkamp v. SSC Waco Greenview Operating Co. Page 7

Proximate cause requires both cause in fact and foreseeability. D. Houston, Inc., 

92 S.W.3d at 454. These elements cannot be satisfied by mere conjecture, guess, or 

speculation. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798-

99 (Tex. 2003). The test for cause in fact is whether the act or omission was a substantial 

factor in bringing about the injury, without which the injury would not have occurred. 

Id. at 799; Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Cause 

in fact is not established where the defendant’s negligence does no more than furnish a 

condition that makes the injuries possible. IHS Cedars Treatment Ctr., 143 S.W.3d at 799; 

Doe, 907 S.W.2d at 477. In other words, the conduct of the defendant may be too 

attenuated from the resulting injuries to the plaintiff to be a substantial factor in 

bringing about the harm. IHS Cedars Treatment Ctr., 143 S.W.3d at 799; Doe, 907 S.W.2d 

at 477.

Foreseeability requires that a person of ordinary intelligence should have 

anticipated the danger created by the negligent act or omission. Doe, 907 S.W.2d at 478. 

The particular accident or injury need not be foreseen. Nixon v. Mr. Prop. Mgmt. Co., 690 

S.W.2d 546, 551 (Tex. 1985). Foreseeability requires only that the injury be of a general 

character that might reasonably have been anticipated and that the injured party be 

situated in relation to the wrongful act so that the injury to her or to someone similarly 

situated might reasonably have been foreseen. Id. 

Appellees attempted to conclusively establish that the alleged negligence was not 

the cause in fact of Haferkamp’s injury by relying on Haferkamp’s deposition 

testimony. Haferkamp testified in her deposition that she was injured when she, a
Haferkamp v. SSC Waco Greenview Operating Co. Page 8

licensed vocational nurse, reached out to assist a nursing-home resident who was 

standing and then suddenly sat down on the floor. Haferkamp stated that the 

resident’s act of sitting down was unexpected and sudden. When asked if there was 

any way that she could think of to have prevented the resident from doing what she 

did, Haferkamp replied, “I can’t think of anything,” and agreed that it was 

unpreventable. 

Haferkamp was asked what, if anything, those at the nursing home should have 

done differently that day. Haferkamp replied that she could not think of anything they 

could have done differently except have gait belts available. Haferkamp was also asked 

separately if there was any equipment that would have made a difference that night, 

and she replied, “Well, possibly if I had been wearing a gait belt, if I had had a gait belt 

there.” Despite her suggestions that she should have had access to a gait belt, 

Haferkamp repeatedly said that even if she had had a gait belt on the night that she was 

injured, she would not have used it: 

Q. And did you ever think that night, “Well, I need a gait belt”?

A. No, sir.

. . . .

Q. Sure. From the time Mr. Shelton waved you down or flagged 

you down and you went into Mrs. Shelton’s room until this incident 

occurred there was nothing going on that made you think you needed a 

gait belt?

A. No, sir.

. . . .
Haferkamp v. SSC Waco Greenview Operating Co. Page 9

Q. And one thing you do know is that from what you saw in 

dealing with Ms. Shelton that evening on April 13, 2005, you didn’t see 

anything when you went in there to assist her and her son that made you 

thing you needed a gait belt?

A. No, sir.

. . . .

Q. . . . . 

My question is during that minute or so that you were with Ms. 

Shelton prior to her suddenly sitting down, you didn’t see any reason to 

get a gait belt or any assistive device, did you?

A. No, sir.

Haferkamp was also asked, “And in looking back in hindsight, can you see anything 

now that you would have done any different if that same situation were to develop?” 

Haferkamp replied, “No, I can’t.” 

Haferkamp also stated in her deposition that she never thought that she needed 

assistance on the night that she was injured:

Q. And you didn’t see anything that made you think you needed 

somebody else in there with you and her son, did you?

A. No, sir, not at that time.

Q. As far as dealing with what you dealt with there with Ms. 

Shelton, you thought with you and her son and her in her physical 

condition, that that was all of the folks that needed to be there, true?

A. Yes, sir.

. . . .

Q. In fact, you didn’t see a reason to call out for anybody else to 

assist you, did you?

A. No, sir.
Haferkamp v. SSC Waco Greenview Operating Co. Page 10

She confirmed that she thought she and the patient’s son had the situation well in hand. 

Haferkamp was asked, “But other than letting them fall, Ms. Haferkamp, there was

nothing you could have done different that night, was there?” She replied, “Not at that 

time, no, sir.”

This summary-judgment evidence conclusively established that Appellees’ 

alleged breach of duty was not the cause in fact of Haferkamp’s injury. Appellees 

therefore satisfied their initial burden and shifted the burden to Haferkamp to present 

evidence sufficient to raise a fact issue. See Centeq Realty, Inc., 899 S.W.2d at 197.

In support of her argument that the summary-judgment evidence raises a fact 

issue, Haferkamp points to an affidavit that she made after her deposition in which she 

stated:

Gait belts were not kept at the Nurses Station before my injury. If a gait 

belt had been available to me I would have had it with me at all times 

when I was on duty.

. . . . 

. . . If my employer had issued me a gait belt before the injury 

causing event I would have used it to ease the patient to the floor, 

wheelchair or bed in a manner that would not have caused the injury to 

my back.

But the trial court expressly sustained Appellees’ objections to these statements in 

Haferkamp’s affidavit and ordered that the statements be inadmissible and stricken. 

Haferkamp does not challenge this ruling. Therefore, these statements in Haferkamp’s 

affidavit cannot raise a fact issue.
Haferkamp v. SSC Waco Greenview Operating Co. Page 11

Haferkamp also contends that Appellees should not have been granted summary 

judgment because section 406.033 of the Labor Code provides that contributory 

negligence, assumed risk, and negligence of a fellow employee are not defenses in a suit 

such as this. See TEX. LAB. CODE ANN. § 406.033(a) (West Supp. 2011). Appellees did not 

assert these defenses, however. Appellees did not assert that Haferkamp was negligent. 

Rather, Appellees asserted that their alleged breach of duty could not have caused 

Haferkamp’s injuries because she testified that the patient’s act of sitting down was 

unexpected and sudden and, in hindsight, there is nothing that she would have done 

differently. To the extent that Haferkamp is complaining about the overruling of 

objections she made based on this argument, we conclude that the objections were 

properly overruled.

Haferkamp failed to produce evidence raising a fact issue as to whether 

Appellees’ alleged breach of duty was the cause in fact of her injury. Thus, the trial 

court did not err in granting Appellees’ motion for summary judgment. See Frost Nat’l 

Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010) (“A defendant who conclusively 

negates at least one of the essential elements of a cause of action . . . is entitled to 

summary judgment.”). We overrule Haferkamp’s sole issue and affirm the trial court’s 

judgment.

REX D. DAVIS

Justice
Haferkamp v. SSC Waco Greenview Operating Co. Page 12

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed March 14, 2012

[CV06]