Haargaard v. Harris County

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 01-20672 _______________

CHRISTINA B. HAARGAARD,

Plaintiff-Appellant,

VERSUS

HARRIS COUNTY, ET AL.,

Defendants,

GARRISON SHIELDS,

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Southern District of Texas m H-99-CV-1076 _________________________ April 11, 2002

Before REAVLEY, SMITH, and DENNIS, JERRY E. SMITH, Circuit Judge:* Circuit Judges.

Garrison Shields drove one of the first those potential escape routes, and the cars to enter a multi-car pileup. Christina vehicle that had swerved right blocked Haargaard, a passenger in one of the cars another. Smith hit the parked patrol car in further down the chain, sued Shields and the near lefthand lane. others for negligence. The district court granted summary judgment for Shields, Haargaard claims that Kamika Harvey’s because Haargaard had failed to create a and Roslyn Ray’s cars then slammed into fact question about whether Shields proxi- Smith’s. Shields avers that Harvey mately caused her injuries. We affirm. brought her vehicle to a complete stop one or two car lengths behind the stopped I. vehicles; Ray braked but was hit from Shields crested an overpass on a free- behind. Angela Juneman’s car, with Haar- way. A parked police car and two gaard in the passenger’s seat, next collided wrecked cars blocked the two lefthand into Ray’s car, causing Junemann to veer lanes, which Shields and two other oncom- into the near right lane and collide with ing cars occupied as they approached. William West’s vehicle. Jason Proctor Constable Linnard Crouch, an off-duty then rear-ended Juneman’s car, forcing peace officer at the bottom of the hill, one or both of these cars to hit Harvey’s testified that the patrol car was parked ten car. yards from the bottom of the overpass, or almost two hundred yards from the top of II. the overpass. Shields either did not, or After limited discovery, Shields moved could not, take evasive action fast enough for partial summary judgment. The court on the slick, wet pavement. On reaching granted the motion because Haargaard had the patrol car, he swung into the far left- not created a fact question about whether hand lane and rear-ended a van parked in Shields had proximately caused Haar- front of the accident scene. Another vehi- gaard’s injuries. The court certified judg- cle took evasive action by darting into the ment under FED. R. CIV. P. 54(b), allow- nearest right-hand lane. ing Haargaard an immediate appeal.

Elizabeth Smith, driving behind Shields, III. noticed the police car only after Shields Haargaard has never identified compe- had swerved to the left. Smith testified tent summary judgment evidence that that she did not have time to stop, and she Shields or Smith impaired the view of could not escape in either direction. The Harvey and the other following drivers. stopped van and Shields blocked one of Nor has Haargaard pointed to any evi- dence the Shields and Smith blocked es- * cape routes; both Shields and Smith Pursuant to 5TH CIR. R. 47.5, the court has crashed into stopped vehicles already determined that this opinion should not be pub- lished and is not precedent except under the limited occupying the two lefthand lanes. Harvey circumstances set forth in 5TH CIR. R. 47.5.4. and the other following drivers had the

same opportunity to avoid the accident as Comm’n v. Recile, 10 F.3d 1093, 1097 did Shields and Smith, so Shields’s acci- (5th Cir. 1993). dent was not the but-for cause of the sub- sequent wrecks. We hesitate to resolve negligence actions at summary judgment1 because of A. state precedent defining the necessary The same standards for summary judg- summary judgment proof of proximate ment bind both this court and the district cause.2 Texas courts usually consider court. McDaniel v. Anheuser-Busch, Inc., proximate cause an issue for the jury. 987 F.2d 298, 301 (5th Cir. 1993). Sum- Boyd v. Fuel Distrib., Inc., 795 S.W.2d mary judgment is appropriate only if “the 266, 272 (Tex. App.SSAustin 1990, writ pleadings, depositions, answers to inter- denied). Texas courts, however, do re- rogatories, and admissions on file, together solve proximate cause at summary with the affidavits, if any,” when viewed judgment if a reasonable jury could reach in the light most favorable to the only one conclusion.3 nonmovant, “show that there is no genuine issue as to any material fact.” Anderson v. B. Liberty Lobby, Inc., 477 U.S. 242, 249-50 In Texas, general proximate cause (1986). A dispute about a material fact is principles govern where a lead driver’s “genuine” if the evidence is such that a negligence led to a multiple car wreck.4 reasonable jury could return a verdict for the nonmoving party. Id. at 248. In making its determination, the court must 1 Zimzores v. Veterans Admin., 778 F.2d 264, draw all justifiable inferences in favor of 267 (5th Cir. 1985) (“[I]t is extremely rare that the the nonmoving party. Id. at 255. issue of negligence can be properly disposed of by summary judgment.”) Once the moving party has initially 2 Dickey v. Baptist Mem’l Hosp., 146 F.3d 262, shown “that there is an absence of 267 (5th Cir. 1998) (looking to Mississippi law to evidence to support the non-moving determine that “[a] mere possibility of causation is party’s cause,” Celotex Corp. v. Catrett, not enough” at summary judgment) (citation 477 U.S. 317, 325 (1986), the nonmovant omitted) (internal quotation omitted). must come forward with “specific facts” 3 Doe v. Boys Club, Inc., 907 S.W.2d 472, 478 showing a genuine factual issue for trial. (Tex. 1995) (granting summary judgment in a neg- FED. R. CIV. P. 56(e); Matsushita Elec. ligence action because plaintiff failed to create fact Indus. Co. v. Zenith Radio Corp., 475 U.S. question about proximate cause); Boyd, 972 574, 587 (1986). Conclusional allegations S.W.2d at 272 (“[P]roximate cause may be and denials, speculation, improbable established as a matter of law if circumstances are inferences, unsubstantiated assertions, and such that a reasonable mind could not arrive at a legalistic argumentation do not adequately different conclusion.”). substitute for specific facts showing a 4 Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, genuine issue for trial. Sec. & Exch. (continued...)

We can divide the proximate cause inquiry did not proximately cause the second into two elementsSScause in fact and accident. Id. The court explained that the foreseeability. Travis v. City of Mesquite, defendant’s negligence and accident must 830 S.W.2d 94, 98 (Tex. 1992). The be “an active and efficient cause of the plaintiff cannot create a fact question injury.” Id. about cause in fact through “mere con- jecture, guess, or speculation.” Doe, 907 In the wake of Bell, several Texas S.W.2d at 477 (citations omitted), but courts of appeals have refused to find must prove that “an act or omission was a proximate cause in pileup accidents.5 substantial factor in bringing about injury Other Texas courts have found that the which would not otherwise have oc- first wreck proximately caused subsequent curred,” Prudential Ins. Co. v. Phillips, wrecks.6 All of these courts re 896 S.W.2d 156, 164 (Tex. 1990) (citation omitted). The evidence must show that negligence was the not a remote cause and 5 Sallie v. Cook, 403 S.W.2d 509, 511-12 (Tex. that its consequences were a natural and Civ. App.SSDallas 1966, no writ) (refusing to find probable result. Doe, 907 S.W.2d at 477. that primary wreck caused secondary wreck be- cause drivers in secondary wreck stopped short of colliding with cars involved in primary wreck); The Texas Supreme Court has refused Heavy Haulers v. Nicholson, 277 S.W.2d 250, to find proximate cause without evidence 254 (Tex. Civ. App.SSGalveston 1955, writ ref’d that the lead vehicle’s accident was a n.r.e.) (finding that drivers in primary accident “substantial factor” in the subsequent pile- should not have anticipated secondary accident up. In Bell, 434 S.W.2d at 122, the because they pulled the vehicles almost entirely off defendant rear-ended another vehicle, the road); Firestone Tire & Rubber Co. v. Rhodes, knocking his trailer over into a traffic lane; 256 S.W.2d 448, 452 (Tex. Civ. App.SSAustin 1953, writ ref’d n.r.e.) (finding that when car rear- a drunk driver traveling in the same lane ended another driver, forcing that driver into the later struck the trailer. The court held that car in front, the driver of the middle car did not because the first accident had “run its proximately cause any harm). course” and was “complete,” the defendant 6 Longoria v. Graham, 44 S.W.3d 671, 674 (Tex. Civ. App.SSHouston [14th Dist.] 2001, 4 (...continued) n.w.h.) (reversing grant of summary judgment 471-72 (Tex. 1991) (referring to RESTATEMENT where defendant’s “negligence created a boxed (SECOND) OF TORTS and general principles of canyon effect that afforded only the highly Texas law); Bell v. Campbell, 434 S.W.2d 117, dangerous escape of backing against traffic on an 121 (Tex. 1968) (basing decision on reasonable interstate.”); J. Wigglesworth Co. v. Peeples, 985 foreseeability); 8 TEX. JUR. 3D Automobiles § 550 S.W.2d 659, 664 (Tex. App.SSFort Worth 1999, (3d ed. 1994) (“Once a motor vehicle operator pet. denied) (finding proximate cause when trucker starts a chain of events by reason of his or her own missed exit before construction, hit barriers where negligence, the operator is ordinarily responsible, construction left opening too narrow to pass under the general rules of negligence, for all through, and caused pileup); Almaraz v. Burke, injuries or damage that are the proximate result of 827 S.W.2d 80, 81-82 (Tex. App.SS1992, writ the operators unlawful conduct.”). (continued...)

quire, on the facts of the particular case, Because the van already blocked the same that the first wreck in fact cause any lane that Shields occupied, Shields did not subsequent accidents. So we will turn to cause the accident. the facts of this case, applying Bell. Haargaard argues that Shields’s late C. evasive action blocked the sight of The district court held that Haargaard subsequent drivers and potential escape had failed to create a fact question about routes. Haargaard presents some evidence whether Shields’s delayed lane change was that Smith did not see the accident until a cause in fact. The court emphasized that she was upon it. Smith testified that Harvey stopped short of the Shields/Smith Shields and another driver were in front of accident; any subsequent crashes resulted her; she crested the hill; and five seconds from the previously blocked road, not from later each of the leading cars veered to one Shields’s late braking and lane change. side.

Smith veered to the left, into the van 6 (...continued) stopped in front of the original accident. denied) (holding that when van negligently The other car veered to the right, through sideswiped car and left car disabled on overpass, van driver proximately caused secondary wreck the open lanes of traffic and presumably to with disabled car); Hennessy v. Estate of Perez, safety. Smith testified that she braked, but 725 S.W.2d 507, 508 (Tex. App.SSHouston [1st did not swerve, and drove straight into the Dist.] 1987, no writ) (finding fact question for jury patrol vehicle. Less than five seconds where drunk driver overturned car and subsequent later, while still in the car, she heard but drunk drivers ran into the crash scene); Tex. did not feel the second accident. Highway Dep’t v. Broussard, 615 S.W.2d 326, 329 (Tex. Civ. App.SSFort Worth 1981, writ ref’d n.r.e.) (finding that following car too closely and Haargaard’s evidence creates a fact rear-ending can proximately caused wreck between question about whether Shields caused second car and car third car); Westbrook v. Reed, Smith to crash but does not create a fact 531 S.W.2d 890, 891-92, 893 (Tex. Civ. question about whether the Shields/Smith App.SSAmarillo 1975, writ ref’d n.r.e.) (finding crash caused the subsequent accident. that negligently causing primary accident in Smith testified that no other cars were sandstorm, when visibility was very poor, within her sight when she crested the hill. proximately caused secondary wreck by following vehicles); Herring v. Garnett, 463 S.W.2d 52, 54 Haargaard has not argued that either (Tex. Civ. App.SSHouston [1st Dist.] 1971, writ Shields or Smith blocked following ref’d n.r.e.) (finding that driving with defective drivers’ line of sight. tires creates liability not only for flat and primary accident but also for secondary accident); Nash v. Finally, the idea that Shields or Smith Roden, 415 S.W.2d 251, 254–55 (Tex. Civ. blocked escape lanes is untenableSSboth App.SSAustin 1967, writ ref’d n.r.e.) (holding that crashed into cars in occupied lanes. when lead driver improperly applied brakes, spun out, and was struck from behind, lead driver was Harvey had the same opportunity to see also responsible for secondary accident). and avoid the crash that Shields did: Each

could see the accident from the top of the Haargaard argues that a single piece of crest, and each could have avoided it only evidence creates a fact issueSSOfficer by veering into the two right lanes. John Miller’s accident report. In the blank for Smith’s “vehicle damage rating,” For the first time on appeal,7 Haargaard Miller wrote “FD-4/RD-3.” Haargaard argues that Harvey actually hit Smith, interprets the “RD-3" as an assessment of which led to a pileup involving all the the damage to the rear of Smith’s vehicle cars. Shields, however, presented and argues that it creates a fact question overwhelming evidence that Harvey never about whether Harvey rear-ended Smith. hit Smith: (1) Smith testified that no one We disagree. made contact with her car. (2) Haa- rgaard’s expert, Walter S. Reed, Ph.D., First, Haargaard’s interpretation of the P.E., submitted an affidavit that describes damage report is not entirely consistent the accident in great detail but does not with her theory of the accident. Assume include a collision between Harvey and that “FD” stands for “front damage” and Smith. (3) Harvey testified in a deposition “RD” stands for “rear damage.” that she came to a complete stop one or According to Haargaard’s theory, Smith’s two car lengths behind the stalled car. (4) car should have suffered rear damage and Crouch testified by affidavit that the Harvey’s car should have suffered front Shields/Smith accident was separate from damage. But the damage assessments for the Harvey/Juneman accident. Smith and Harvey’s vehicles do not add up. The report does not use the symbol “FD” plainly to indicate front damage to 7 Harvey’s car.8 Haargaard does not present Fifth Circuit cases do not consistently describe any external evidence supporting her the standard for considering an issue raised for the first time on appeal. Some panels have stated that interpretation of the accident report, such we need not address an issue for the first time on as testimony by Miller. Extrapolating appeal “unless it is a purely legal issue and our such a complicated theory from scant refusal to consider it would result in a miscarriage proof resembles speculation more than of justice.” E.g., Heci Exploration Co. v. competent summary judgment evidence. Holloway, 862 F.2d 513, 518 & n.7 (5th Cir. 1988) (emphasis added). More recently, panels have explained that this court can consider an issue for the first time on appeal if “the issue presents a 8 pure question of law or [is] an issue which, if The blank for Harvey’s vehicle damage is ignored, would result in a miscarriage of justice.” filled with “RD-5,” plus an indecipherable four E.g., United States ex rel. Wallace v. Flintco, Inc., characters that might symbolize front or side dam- 143 F.3d 955, 971 (5th Cir. 1998) (emphasis age. Because Procter’s car later crashed into Har- added). We need not resolve this issue on the basis vey’s from his right side, the officer would have to of waiver, and we do not express an opinion on record damage from that accident. The summary whether Haargaard in fact waived her right to judgment evidence strongly suggests that the make this ar gument by failing to raise it in the indecipherable characters represent side, rather district court. than front, damage.

Second, subsequent collisions could have caused damage to Smith’s car after Harvey stopped short. For example, Juneman’s car later hit Procter’s car and caused it to crash into Harvey’s. One of the three cars may well have traversed the one- or two-car length distance and caused damage to the rear of Smith’s car. We can reconcile all available summary judgment evidence if Smith’s car sustained the rear damage after the series of accidents. Haar- gaard’s evidence fails to create a fact question about whether Harvey collided with Smith and led to the accidents.

Finally, even if Harvey’s car physically collided with Smith’s car, Haargaard fails to present evidence that the Shields/Smith accident caused that collision. She presents no evidence that the Smith/Shields accident somehow reduced Harvey’s visibility. As explained above, both Smith and Shields crashed in occupied lanes, so they could not have cut off escape routes.

AFFIRMED.