A f

f irmed and Memorandum Opinion filed September 8 , 2022

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00052

- CV

THE PORT OF HOUSTON AUTHORITY , Appellant

V.
ABRAN MORALES , Appellee

On Appeal from the 157th District Court

Harris County, Texas Trial C ourt Cause N o. 2019

- 09088

MEMORANDUM OPINION
Appellee Abran Morales filed suit against a ppell ant the Port of Houston Authority ( “the Port ” ) f or negligence concerning a n accident between a gantry crane d riven by one of the Port ’ s employees and Morales ’ s t ruck. In two issues,
which we construe as one , t he Port argues that the trial court should have granted its motion for summary ju dgment because the trial court lacks subject

- matter jurisdiction over Morales ’ s negligence claims . We affirm the ju dgment of th e trial

court

.2 I. B ACKGROUND In 2018, Morales was working for Palletized Trucking as a t ruck driver. On August 2 0, 2018, Mora les was delivering a container at the Port ’ s Bayport
Container Terminal

. Morales pa rked his t ruck in the bypass lane and waited in a l ine of trucks to de liver the container

. Richard Taylor, an employee working for the Port, was driving a gan try in th e runway to the right of the bypass line of tru cks

. Taylor wa s leaving pad 3A traveling east toward pad 2A , when the gantr y he was

opera ting struck the right

- side mirror of the truck in front of Morale ’ s truck, an d
then struck Mor ales ’ s parked truck

. On February 6, 2019, Morales filed suit against the Port for negligence and negligence per se

. Morales , i n part, specifically alleged that Taylor vio lated his
dut y to exercise ordinary c are whi le oper ating the gantry by : ( 1 ) failin g to m aintain a proper lookout ; (2) failing to control the distance between his vehicle and surrounding vehicles; (3) faili ng to maintain attention; (4) failing to timely apply brakes; (5) failing to yield rig ht of way; (6) f ailing to control the s peed of his

ve hicle; and (7) failing to man euve r his vehicle so as to avoid a collision

. According to Mo rales, the Port ’ s immu nity ha s been waived under the Tex as Torts
Claim s Ac t because Taylor was acting wi thin t he scope o f his employ ment wit h the
Port , the i njury ar ises from the operation of a motor vehicl e , and Taylor would be personally liable to M orales under the Texas Tort Claims Act

. See Tex. Civ. Prac.
& Rem. Co de Ann. § 101.021(1). Morales fur ther alleged that he suffered injur ies

as a d i rect r esult of Taylor ’ s negligence.

In Marc h of 20 19, the Port filed its special exceptions, plea to the jurisdiction, and original answer. The Port argued that its immunity was not
waive d because Mo rales failed to state : ( 1) what spec i fic legal duty the Port owe d

to Morales ; (2) what specific act or omission by the Port constituted a breach of3

duty and caused Morales ’ s a lleged injury ; (3) how any alleged breach of duty proximately caused Mo rales ’ s alleged injury ; and (4) wh at specific i njury Mor ales

s uffered as a result of the incident.
In December 2020, the Port filed a traditional and no

- evidence motion for

su mmary judgment , arguing that Morales ’ s negligence cau se of action faile d
becaus e the evidence did not dem onstrate tha t Tayl or b reache d any duty h e owed

to Moral es and ther e was no evidence that this accident caused Morales ’ s injuries

. The de clarations of Taylor and Officer Sta cy Joseph

— an officer working for the
Port of Houst on P oli c e Department ( “ PHPD ” )

— were attached to the Po rt ’ s motion.

Ac cording to Ta ylor, the gantry operates in runways identified by white lines, but Taylor alleges Mo rales ’ s truck w as par ked o ver the white lines m ar king
the tru ck lane. Because of the width of the gantry , Taylor claimed he could not see
M orales because Morales ’ s truck was in the ga ntry ’ s blind spot . Taylor also
asserted that there is a green lin e inside of th e white lines mark in g th e ga ntry runway to help the gantry operators stay inside their runwa y lane ; if an opera tor keeps the dri ver side wheels on the green line, the gantry wil l stay inside the

r unway because the only way a gantry can turn i s by completely stopping and
unl oc king the wheels

. According to T aylor, he kept the gantry ’ s wheels on the green line . Furthermore , T ay lor asserte d that truck drivers at the p ort are t rained to yield the right

- of

- way to g antry operators. T he Port at t ached a photograph showing
that the gantry was slightly over the white lines ; h owever, according to the Port,
th e gantry cross ed the line as a r esult of the impact with M o rale s ’ s truck

. Officer Joseph stated that he crea ted the accident report , and affirmed that
the P HPD does not enforce the Transportation Code at the P ort becau s e of the
Port ’ s la ck of State, County , or C i t y highways, roads, or stre ets. According to4

O ffic er J oseph
, the right side of Morales ’ s t ruck was outside of the line marking
the truck lane. He also averred that T a ylor kept his wheels on the green line he was supposed to follow and that all of th e green line s w ere drawn corr ectl y

. He also
stated that an “ impact often ca uses [the gantry] to turn slightly. ” Officer Joseph described the damage to the truck as follows:
[Morales] drove his wor k t r uck awa y from th e scene . The accident

cau sed d enting al o n g the right side of the truck. The fiber glass panel on the sle eper cab was peeled back, and the st ep into the sleeper cab was dama ged. The driver ’ s side of the tru ck did not appear to be damaged. I did not observe a ny dama ge that would obvi ousl y make the t ruck unsafe to drive.

The Port also attac hed t he Po rt ’ s Health, Safety, Security, and En vironme nt Poli cy Document ( “the Policy ”) to its motion for summary judgment. Th e Poli c y applies to “ all t ruc k drivers opera ting at the Bayp ort Ter mina l

. ” The Policy st a tes mul tiple times that gantry op erators “ always have the right of way. ” T hus, the Port

c la i med that Morale s failed to raise any evidence sugges ting t h at T aylor breached a duty to Morales

. Concerning causatio n, t he Port argue s tha t Morale s fails to provi d e expert testimony to support the causation element o f his negligence and negligence per se
claim. The Port avers that Morales has pre

- existing inju ries to the same part of his body from three p r ior motor

- vehicle accidents : (1 ) in 2013, Morales fractured h is
neck when he was struck by a drunk dr i v er ; (2) in February 2018, M orales injured
his back in a motor

- vehic le acciden t; and (3) in August 2018 , af ter the incident with Taylor ’ s gantry, Morales injured hi s b ack in a moto r

- vehicle acciden t

. Further, i n Ma r ch 2018, the results of an MRI of Morales ’ s ne ck and back
revealed disc herniatio ns between C5 and C6 and also between C6 a nd C 7 , a nd a
1.8mm her niation at L5

- S1

. MRI results taken after the August 2018 gantry5

collision showed that the hern i ations had inc r eased in size , an d a radial fissure was
noted at L3

- L4 tha t was not noted on the M arch 2018 MRI

. Morales also a ttached
his medical r ecords from the doct or he visited after the incident

— Matthias
Wiederholz , M.D. W iederholz included the following note in th e medical records : The patient deni es an immediate h istory of n eck or b ack pain prior to the accident . Within a reasonable degree of medical probabil ity, the injuries sustained are causally related to the acciden t. He had an accident in February with neck and back pain but w as able to retur n to full duty a f

ter a s hort course of physic al t herapy at that ti me. He was not having neck o r back pain prior to this injury.
However, t he Port claimed that because of the prior and subsequent injur ies to the same part s of Morales ’ s b ody
, and wi thout proof of W iederhol z ’ s qualifications and credible, scientif

ic rese arch to support Wiederholz ’ s causation ana lysis
, Wi e derholz ’ s opini on was conclusory ; th erefore
, Mor ales failed to provide
evidence that his injuries w ere a re sult of the accide nt w ith Taylor
, making summary judgment appropriate

.
T he Port furt her argued that Morales ’ s negligence per se claim failed
because Morales d id not establish th at Taylor violated any statute s. In his petition,
Morales c ited generally to t he Texa s Tr ansportation Co de § 545 , alle ging that
Ta ylor ’ s act ions constituted negligence per se

. However, citing Officer Joseph ’ s declaration , the Port asserte d that Morales ’ s negligence pe r se c laim failed b ecause the Te xas Tr ansportation C ode is inapp li ca ble to the Port

.
T h e Port also averred t hat Mo rales failed to provide evidence that his medical bills were paid or incurred. See T ex. Civ. Prac. & R em. Code Ann. § 41. 0105 ( “ In addition to any other lim itation under law, recover y of medical or
health c ar e expenses incurred is limited to the amount actually paid or incurred by
or on behalf of the claimant. ” ). Al though Morales produced evidence of6

approximat ely $151,000 i n medical bills, t he P ort alleged t hat there wa s no evidence that Morales actually pa id any of those bills
, made any arrang em ents to pay those bills, or that any of th e medical providers intended to hold Morales

respons ibl e for paying those b ills if he di d not prevail in litigatio n.
In his r espo nse to the Port ’ s motion for summary ju dgment
, Morales argue d
that there was sufficient evidence to raise a fact issue as to causatio n , because as
evidence d by the MRI res u lts before and afte r the gantry acci dent, the severity of
his dis c herniations h ad i ncreased , and there was a n MR I finding of a r ad ial fissure after the gantry accident at L3

- L4 that w as not f ound in the M RI results from
bef ore the gantry accident. Mo rales further argued that the he rni ation located at
L5

- S1 had grow n from 1.8 mm to 2.0 mm , and that Morales claimed injuries not compl ain ed of prior to the gantry accid ent, including a left should er in jury and pain to his shoulders, entire back, ches t and hips, su pported by his medical reco rds and deposition testimon y

. Mo rales further avers that he was not relying on temporal proximity t o p rove causation ; gi ven the MRI resu lts prior to and after the gan try accident, a five

- month period, Morales argue d an expert was not required to
evaluate wh e ther Morales ’ s injuries wer e c a us ed by the gantry accid ent , and

moreo ver, that Wiederholz, an ort hope dic s pecialist, noted the p rior accident and
neck and back pain
, Morales ’ s recovery from th ose injuries, and noted Mor al es reported not having neck or bac k pain prior to the current i njur y. He asserts
Wiederholtz ’ s documentat ion, including the prese nti ng co mplaints, clini cal

ex amination, and correlation with diagnostic studies, are su ffic ient to establish

causa tion.
Concerning his ne gligence per se claim, Morales argued that per the P ort ’ s

o wn polices : “ 5.3.2 PORT HOUSTON safety procedures, s tandards, rules and guidelines onl

y suppl ement and do not in any way super sede stat e and federal la ws7

or other industry regulations

. ” (emphasis added )

. Morales averred that th e T e xas Transpor t ation Code was d es igned to protect
motorists such as Mo r ales, a nd that Mor ales ’ petitio n, although not required to do so, set forth seven vio lations of t he T ransportatio n Code.

R egardi ng his neg li g ence claim, M oral es argued that it is undi sput ed that Taylor left his lane

. And J oseph ’ s incident report reflects that “ Morales also state d
th e crane was o utside the crane lane caus i ng the accident. ” Thus
, Mora les argues
that his statement of facts to Off ic er Joseph was sufficient to raise a fact issue as to Taylor ’ s negligence.
Concerning the paid and incurred expenses, Morales argue d that the following conversation at trial clearly indicated M orales ’ s re sp ons i bility to pay t he
medical bills
, and reflects M oral es ’ s inability to initially understand the question : [ Question ]: If you do not recover those expenses from this lawsuit,

would y ou pa y those medical expenses?
[ M orales ]: It ’ s for my attorney.

[ Question ]: I ’ m s orry, I c ouldn ’ t hear you.
[ Morales ]: Yo u ’ re breaking up there.
[ Question ]: Yeah, I ’ m sorry, I couldn ’ t hear you. If you were not to

recover those expenses from this lawsu it, w ould you plan on paying those expenses?
[ Morales ]: Y es, I would have t o p ay for them.

On January 13, 202 1 , a he aring was conducted on the Port ’ s motion. During
the hearing, Morales agreed to nonsuit his negligence per se claim. At the
conclusion of the hearing, the trial court informed the partie s th at it was den ying8

the motion for summary judgment as to the n egligence claim
, “ based on [ Morales ] agreement to non

- suit claims for n egligence per se claim

. ” The trial court signed an
order denying the Po rt ’ s motion later that day. On Janu ary 15, 2021, M orales filed an amended petition, w h ich no longer raised a ne gligence per s e claim. The Port
fil ed a timely notice of appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a ) ; City of Houston v. Atser, L.P. , 403 S.W.3d 354, 357 (Tex. App.

— Ho uston [1st
Dist .] 2013, pet. denied) (“ An interl oc utory appeal may be had when a trial cou rt denies a governmen tal unit ’ s challenge to subjec t m atter jurisdictio n, ‘ irrespective of the pro cedural vehicle used. ’ ” ( quoting Thoma s v. Long , 207 S.W.3d 334, 339 (Tex. 2006)) ).

II. S OVEREIGN I MMUNITY
A. S TANDARD OF R EVIE W Morales agrees that the Port is a govern m ental entity

. G enerally, a

governme ntal entity such as the Port is immune from tort liability. City of Galveston v. State, 217 S.W .3d 466, 468

– 69 (Tex. 2007); Quested v. City of
Ho uston , 440 S.W .3d 275, 279

– 80 (Tex. App.

— H ouston [14th Dist.] 2014, no pet.). Governmental immunity from suit d efeats a trial court ’ s subject matter jurisdiction
, and thus is properly asserted in a plea to the jurisdictio n. Tex. Dep ’ t of Parks & Wildlife v . Miran da, 133 S.W.3d 217, 225

– 26 (Tex. 2 00 4). However, a
defe ndant may also raise the lack of subject

- matter j urisdiction in a motion for summary judgment. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3 d 547 , 5 54 (Tex. 2000); Atser, L.P. , 403 S.W.3d at 357

. Up on such a juris dictional challenge,

regar dl ess of the procedur al vehicle used, the trial cou rt may consider evi dence
, and must do so when necessary to resolve the jurisdictional issues raised. Blue
, 34
S .W. 3d at 555.
We r eview a challenge to the trial co ur t ’ s juri sdiction de novo. State v.9

Holland
, 221 S.W.3d 639, 642 (Tex. 2007). We first look to the pleadings to determine if the pleader has alleged facts that affirmatively demonstrate the court ’ s j urisd ict ion to hear the cause. Miranda, 133 S.W.3d at 22 6. We cons true the pleadings liberally in fa vo r of the plaintiff, look to the pleader ’ s intent, and accept

as tru e the factual allegations in the pleadings. See id. ; Martinez v. Harris County , 526 S.W .3d 5 57, 562 (Tex. App.

— Houston [1st Dist.] 2017, no pet .) ; Queste d , 440
S.W.3d at 279.
H ere, the Po rt challenges the exi stence of jurisdictional facts with supporting

e vidence

. In such cases, t he standard of review mirrors that of a traditional

su mmary ju dgmen t : “ [I]f the plain tiffs ’ factual allegations are ch al lenged with supporting evidence necessary to consideration of t he plea to the juri sdiction
, t o avoid dismiss al plaintiffs must raise at least a genuine issue of material fact to

overcome the challen ge t o the trial court ’ s subject matter jurisdiction .” Al am o Heights Indep. Sch. Dist. v. Clark
, 544 S. W.3d 755, 771 (Tex. 2018) (quoting Miranda, 133 S .W.3d at 22 1)

. In determining whether a material fact issue exists,

we must take as true all evid ence fav orab l e to the plaintiff
, indulging every reasonable infe re nce and resolving any doubts in the plaint if f ’ s favor. Id

. In d oing

so, howeve r, we cannot disregard evidence necessary to show context, and we
cannot disregard evidence an d inferences unfavo rable t o the plaintiff if reasonable jurors could not

. Id. ; see T ranscon. Ins. C

o. v. Briggs Equip. Tr

. , 321 S.W.3d 685, 692 (Tex . App.

— Houston [14th Dist. ] 2010 , no pet. ) ( “ The evidence raises a genuine issue of fact if rea sonable and f air

- minded jurors c ould di ffer in their
conclusions in light of all of the

. . . e vi dence. ” )

. B

. A PPLICA BLE L AW

The Port , as a governmental entity
, cannot be vic ariously liable for an employee ’ s acts unless its governmental immunity has been waived. See C it y of10

Pasadena v. Belle
, 297 S .W.3d 525, 529 (Tex. App.

— Houston [14th Dist.] 2009
, no pet.). Und er the facts of thi s case, the only waiver of the Port ’ s immunity from suit and liability raised by Mor ales is found in § 101.021 of the T exas T ort Clai ms Ac t ( “ TTCA ” ) , which pro vides i n rel evant part: A governmental unit in the state is li a bl e fo r .

. . property da mage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of emp loyment if: (A) the prope rty dam age, personal injury, or death arises from the operatio n o r us e of a motor

- driven vehicle or motor

- driven equipme n t; and (B) the e mployee would be personally liable to the claimant according to Texas law

. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1).

M orales argue s that Taylor would be personally liable under a ne gl i g en ce cause of action.

The elements of a negligence ca u se of action are the existence of a legal duty
, a breach of that duty
, and damages proximately caused by the breac h

. The two elements o f proxi mate cause are cause in fact (or substantial factor) and f o res eeability. These el ements cannot be satisfied by me r e conjecture
, gues s, or speculation. Cause in fact is established when the act or omission was a substantial facto r in bringing about t he inju ries, and without it, the harm would not have occurred

. IH S Ce dars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason , 143 S.W.3d 7 94, 798

– 99 (Tex. 2004) (i nternal citations omitted)

. To establish breach of duty, “ the plaintiff must show either that the defenda nt di d something an ordinarily prudent person exercising o rdinary care would not have done under the particular

c ircumstances or that the defendant failed to do something that an ordinarily prudent person would have done in the exercise of ordinary care

. ” Dougl as v.11

Aguil ar , 599 S.W.3d 105, 108 (Tex. App.

— Houst on [14th Dist.] 2020, no pet.)

. C

. A P PLICA T I ON

We first a ddress Morale s ’ s contention that it is improper for the Port to seek appellate review of the denial of its motion f or summary judgme n t

. Specifi cally
, M orales argues t hat “ seeking appellate review of a denial of a summary judgment through an interlocutory a ppeal based o n [Texas Civil Practice and Remedies Code] §51.014(a)(8) is the wrong standard as applied to this case lacks merit [sic]

. ”
Howev er , as we noted abo ve, a n interlo cutory app eal may be had when a t ri al court denies a governmental unit ’ s challenge to subj ect m atter j urisdiction, “ irrespective of the p ro cedural vehicle used. ” Atser , 403 S.W.3d at 357 ; see Tex. Civ. P r ac. &
Rem. Code Ann

. § 51.014(a )

. We next address th e Port ’ s c hallenge to the trial c ou rt ’ s jurisdiction. For the
Port ’ s i mmunity to be waiv ed
, it was nec e ssary for Morales to raise a fact issue as
to : whether the Port is a governmental unit ; Taylor was acting in the scope of h is employment ; Morale s ’ s injuries arose from Taylor ’ s operation o f a motor

- vehicle ; and whether Tay lor would be personal ly liable to Morales under Texas law. See Tex. Civ. Prac. & Rem. Code Ann. § 101.02 1(1). The Port concedes that the
accident involv ed T aylor , an emplo yee of a government al unit , and the Port does

no t d ispute that Taylor was acting in the scope of his employme nt. Howe ver, the
Port contends that Morales failed to r aise a fact issue regarding whet her Ta ylor would be perso nally li ab le to Mora les be cau se Morales did not raise an is su e of fact on each element of his negligence claim

. Specific ally, the Port allege s that
ther e is no evidence th at : ( 1 ) Taylor breached his duty as a gantry driver ; and (2)
the Au gust 2018 gantry a ccident ca used Moral es ’ s inju ries. We first address the
P or t ’ s argument concerning breach of duty.12

1. Morales ra ised a fact issue on T aylor ’ s alleged br e ach of duty

I n his petition, Mo rales asse rte d that T aylor fail ed to : maintain a proper lookout ; control the dis tance betwee n his v ehi cle and surrounding vehicle s;

m aintain attention; timely apply brakes; yield the r ig ht of way; control the speed of
his ve hicle; and man euve r his vehicle so as to avoi d a collision

. We then take as
tru e all evid ence favorable to Morales
, and indu lg e every reasonable inference and

re so lv e any doubts in Morales ’ s favor. See Alam o He ights
, 544 S.W.3d at 771

. Under this ana lysis, the evidence that is favorable to Morales includes the photographs showi ng the gantry over the li ne , Morales ’ s statement to Off icer Joseph that Taylor cross ed t he l ine, and the deposition testimony fro m Morales that
the gantry struck the right

- side mirror of the truck in front of Morale ’ s truck, and
several trucks in front of his truck had to move ou t of the way of the gantry that
had ve e red out of its lane.

The Port argues that there is overwhelming evidence suggesting that T aylor

was not negligent. For instance, Ta ylo r asserted in his declar ation that Morales was in a blind spot because cargo contain ers bloc ked the “ wharf sid e leg of the [gant ry]
from view. ” The Por t ’ s Poli cy warns truck drivers that the gantry operator “ has a very limited view of the bli ndside ” and t o use “ extre me caution when in the area of [ a gantry be cause]

. . . . the [gan try] operator has limited visibil ity due to the [gantry ’ s] cab config urati on. ” The P o rt argues t here is no evidence to s uggest that Taylor failed to keep a proper lookout or fa iled to maintain attention or that he was in any manner dist ract ed. Additionally, t he Po licy states th at gantry o perators

“ always have the right of way. ” While this evidenc e may support a conclusion that Taylor did not b reach a duty , there is also evidence in the record that supports the opposite co nclu sion

. See id. V iewing the evidence in the light most favora ble to
Morale s, and ind u l ging every reas onable inference therefrom, Miranda, 13313

S.W.3d at 226
, w e conclude that Morales has presented suffici en t evid ence to raise a genuine issue of fact c once rnin g Ta ylor ’s alleged breach of duty

. See id.

2. Morales raised a fa ct issue regarding causation

The Port als o argues t hat Morales failed to raise a ge nuine issue of fact regarding causation. The Port asser ts that Morales had both pre

- existing and

su bsequ ent inju ries in the same areas of his body due to prior motor

- vehicle
accidents

. However, Morale s points out t hat while some injuries were to his back
and neck
, those in

ju ries were exa cerbated , while oth er of his claimed inj uries were not previ ously co mpl aine d of

. The MRI before the gantry accident showed th at Morales had a 1.7 mm herniation at C 5

- C6 area; the post

- gantry

- accident M RI
showed that the herni atio n increased to 2.5mm. Like wise , the herniation at C6

- C7

area wa s 2.0mm pre

- accident but 2.5mm post

- accident
, there was a n MR I finding
of a r adial fissure after the gantr y accident at L3

- L4 that w as not f ound in the M RI
results from bef

ore the gantry accident
, and the he rniation at L5

- S1 had increased
fr om 1 .8 mm to 2.0mm

. Additionally, the MRI taken after the gantry ac cide nt revealed that Morales had “ [m]ild subacro mial

- su bdeltoid b ursitis ” and “ mild glenohumeral joint effu sion. ” The se are injuries th at d i d not exist prio r to the gantry accident.

T he Port additionally contends that Wiederholz ’s medi cal opinion on causation was conclusory; thus, Morales allegedly failed to p rovide expert testimony to demonstrate th at his injuries were caused specificall y by the gantry
accident

. However, Wiederholz ’ s opin ion indicates he was aware of Morales ’s previous accidents. He noted that after the prior acc ident
, Morales was able to go
b ack to work after a short period of thera py and that Mora les w as not experiencing pain prio r to t he gantry accident

. Additionally, before opin ing tha t the gantry
accident cause d Morales ’s in juries
, Wiederholz performed a n extensive cl inical14

exam ination o f Morales. Wiederholz fo und that Mor ales su ffered from restricted range of motion in the cer vi cal area with lateral ending, scia tic pain on the l eft side,

an d a restrict e d range of motion in the lumbar area. Wiede rholz also in dicated in his medical report th at he had reviewed Moral es ’s MRI s a nd tha t the MRIs
correlated with his clinical findings d uring the exam. E vidence from a n expert is deemed conclusory when a conclusion is stated without an explanation or factual
substant iation

. See
, e.g., LMB, L td. v. Mo reno , 201 S.W. 3d 6 86, 688 (Tex. 2006) ( co ncluding that the expert ’s evidence was conclusory because the physician simply stated “ in my opinion, the conduct of [LMB] substantially caused Ernestina
Moreno ’ s injuries and deat h ” ) ; Aguirre v. Vasquez , 225 S.W .3 d 744, 755 (Te x. A pp.

— Hou ston [14th Dist. ] 2007, no pet.) ( concluding that the following expert

s tatement was conclusory : “ The decision to voluntarily stop in a lane of an interstate highway is grossly negligent. This action goes far beyond any thing a

pers on utilizing ordinar y care would be expe cted to do ” )

. We do not agree that
Wieder holz ’s medical report is conclusory ; Wi ederholz explained his medic al opinion and the und er lying facts upon which that conclusion was based

. See Ror ie v. Harris Cnty. , No. 14

- 06

- 01146

- CV, 2008 WL 8789 38, at *4 (Tex. App.

— Ho uston [14th Dist.] Apr. 3, 2008, no pet.) ( “ A statement is conclusory if it does not provide underly ing facts to support the conclusion

. ” ). Th us , w e con clude tha t Morales pres ented sufficient evidence to rais e a fact issue concer ning c ausation.

3

. Summary

We conclude that Mor ales pres ented at least a scintilla of e videnc e to raise genuin e issue s of fact as to each element of his negligence claim. Accordingly, the
trial court di d not err in denying the Port ’ s m otion for summary jud gmen t. We
overrule the Port ’ s sole issue.15 III. C ONC LUSION

W e affirm the or der of the trial cour t.

/s/ Marg are t “ Meg ” Poissant J usti ce

P a nel consis ts of Ju stice s Wise
, P oissant
, and Wilso n

.