Date: 09-23-2017

Case Style:

Case Number: 14-16-00286-CV

Judge: Ken Wise

Court: Texas Court of Appeals, Fifth District on appeal from the 113th District Court of Harris County

Plaintiff's Attorney: Michael Brett Anthony and Douglas Pierce Peterson

Defendant's Attorney: John R. Strawn, Jr. and Kevin L. Hood

Description: Amanda Bujnoch was a passenger in a vehicle that slid off the roadway and
rolled over after the vehicle encountered some oil-based mud cuttings. Amanda was
ejected from the vehicle and killed. National Oilwell Varco, L.P (NOV) had loaded
the mud into an open-top dump trailer that
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company (Big Red). Neither Big Red nor NOV ensured that the truckload of mud
had been secured before the truck departed the drill site. Appellants—Amanda’s
parents, the next friend of Amanda’s minor daughter, and the administrator of
Amanda’s estate—sued NOV and others for negligence and other claims.
NOV filed a traditional motion for summary judgment, contending that it
owed no duty to Amanda as a matter of law because: Big Red had a non-delegable
duty to secure the load under federal and state regulations; NOV’s internal policies
did not create a duty to secure the load of an independent contractor; and it was not
foreseeable that Big Red would act in a negligent manner. The trial court granted the
motion.
We reverse the trial court’s judgment on Appellants’ negligence claim and
remand for further proceedings.
I. PRESERVATION OF ERROR IS NOT REQUIRED
Initially, NOV asks this court to affirm because Appellants have failed to
preserve error for all of their issues on appeal by not raising them in the trial court.
We hold that Appellants are challenging the motion as insufficient as a matter of law
to support summary judgment, for which no error preservation is required. See City
of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
The general rule is that a non-movant must expressly present to the trial court
any reasons seeking to avoid the movant’s entitlement to summary judgment, such
as those set out in Rules 93 and 94 of the Texas Rules of Civil Procedure. See id.;
see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993).
However, the party moving for a traditional summary judgment has the initial burden
to submit sufficient evidence that establishes (1) there is no genuine issue as to any
material fact and (2) the movant is entitled to judgment as a matter of law. Amedisys,
3
Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). If the
movant never meets this burden, the burden never shifts to the non-movant, and the
non-movant need not respond or present any evidence. Id. Summary judgments must
stand or fall on their own merits. Id. A trial court may not grant summary judgment
by default. Id. at 512.
Although a non-movant may not urge on appeal “any and every new ground
that he can think of,” a non-movant need not preserve a contention that grounds
presented in the motion are “insufficient as a matter of law to support summary
judgment.” Clear Creek, 589 S.W.2d at 678; see also Amedisys, 437 S.W.3d at 512
(“Thus, a non-movant who fails to raise any issues in response to a summary
judgment motion may still challenge, on appeal, the legal sufficiency of the grounds
presented by the movant.” (quotation omitted)). For example, in Amedisys the trial
court granted the plaintiff summary judgment on its breach-of-contract claim. See
id. at 510. The Supreme Court of Texas held that the non-movant did not need to
preserve error to argue on appeal that the plaintiff failed to show the existence of a
contract. See id. at 511–12.
NOV had the burden to conclusively negate at least one element of
Appellants’ negligence claim—in particular, the existence of a duty. See Johnson
Cty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996). In its motion,
NOV attempted to negate the existence of a duty in part by arguing that Big Red was
a “carrier” and thus had a “non-delegable duty under federal and Texas law to secure
its load safely.” NOV cited federal and Texas regulations and the decision in Texas
Specialty Trailers, Inc. v. Jackson & Simmen Drilling Co., No. 2-07-228-CV, 2009
WL 2462530 (Tex. App.—Fort Worth Aug. 13, 2009, pet. denied) (mem. op.). NOV
also argued that its internal company policies did not create a duty, and it was not
4
foreseeable that Big Red would fail to secure the load before entering a public
highway.
In their response, Appellants did not refer to any legal authorities other than
the standard of review and instead focused on the evidence of NOV’s “safe work”
policy requiring NOV’s employee to verify that the driver of a disposal truck secured
the load before leaving the drill site.1 On appeal, however, Appellants address
NOV’s arguments concerning the regulations and Texas Specialty; and Appellants
contend that Big Red’s duty does not relieve NOV of its separate common law duty
to use reasonable care in the loading and securing of mud.
We hold that Appellants’ arguments on appeal concern whether NOV met its
summary-judgment burden to negate duty as a matter of law. Appellants challenge
the legal sufficiency of the grounds presented in NOV’s motion. Accordingly,
Appellants have not forfeited their appellate complaints by failing to make more
specific arguments to the trial court. See Amedisys, 437 S.W.3d at 511–12. We will
consider whether NOV negated the existence of duty as a matter of law.
II. DUTY
Appellants contend that the trial court erred by granting summary judgment
based on NOV’s argument that it had no duty to secure the load of mud. Appellants
contend that NOV had a common law duty to properly secure the load of mud,
regardless of federal and state regulations applicable to Big Red, and that a vehicle
accident was a foreseeable result of NOV’s conduct.
1 In light of NOV’s arguments, Appellants’ response would not have been particularly
helpful to the trial court. See Clear Creek, 589 S.W.2d at 678 (noting that it would be “prudent
and helpful to the trial court” for a non-movant to file a response challenging the sufficiency of
the motion for summary judgment).
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A. Standard of Review and General Principles
We review the granting of summary judgment de novo. Lightning Oil Co. v.
Andarko E&P Onshore, LLC, No. No. 15-0910, 2017 WL 2200343, at *3 (Tex. May
19, 2017). NOV, as the movant, had the initial burden to submit sufficient evidence
that establishes (1) there is no genuine issue as to any material fact and (2) NOV is
entitled to judgment as a matter of law. See Amedisys, 437 S.W.3d at 511. We review
the evidence in the light most favorable to the Appellants, as non-movants, indulging
every reasonable inference in their favor and resolving doubts against the motion.
Lightning Oil, 2017 WL 2200343, at *3.
An element of negligence is the existence of a legal duty owed by one person
to another. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.
1990). Whether a legal duty exists under a set of facts is a question of law for the
court to decide from the facts surrounding the occurrence in question. Id. In making
this determination, courts “consider several interrelated factors, including the risk,
foreseeability, and likelihood of injury weighed against the social utility of the
actor’s conduct, the magnitude of the burden of guarding against the injury, and the
consequences of placing the burden on the defendant.” Id. Foreseeability of the risk
is the foremost and dominant consideration. Id.
B. Evidence
For purposes of summary judgment, it does not appear that the parties have
relied on conflicting evidence. Sanchez Oil and Gas Corporation operated a drilling
rig near Flatonia, Texas, and hired NOV for solids control. NOV’s solids control
operator, one of two NOV employees at the drill site, testified that it was his
responsibility to load the trailers that transported mud away from the drill site. The
solids control operator did not rely on the driver of the Big Red trailer regarding how
to load the trailer.
6
On the night of the accident, the solids control operator spent two hours using
a backhoe to load mud into Big Red’s open-top dump trailer. Big Red’s trailer did
not have a tarp or cover. The solids control operator described some of the material
as small, hard solids—like pebbles—with oil-based mud film on them. The rest of
the material was a “thick and slimy . . . paste-like material.” He believed that if mud
leaked onto a highway, it would pose a risk to people driving on the highway.
The solids control operator testified that the driver did not get out of the trailer
and walk around to do any type of verification that the load was secured. The solids
control operator did not verify that the driver secured the load, which the solids
control operator should have done under NOV’s “safe work” procedure. The solids
control operator looked at the back of the trailer, and it looked latched. But, he never
put his hands on it to see how tight it was. He did not notice that the trailer was
leaking mud. After he and the driver signed some paperwork, the driver left
immediately.
The driver testified that he did not expect the solids control operator to latch
the trailer or to make sure that the driver had done it. The driver did not do anything
to verify that the load was secured or that the rear latches on the trailer were locked
and closed before leaving the drill site. He testified, “[I]t’s just something that
slipped my mind.”
C. Big Red’s Duty to NOV Not Dispositive of NOV’s Duty to Third Parties
NOV argued in its motion for summary judgment that “Big Red, as a carrier,
has a non-delegable duty under federal and Texas law to secure its load safely,” and
it is “solely the carrier’s duty to secure its load prior to transporting it on public
highways.” NOV relied on federal regulations and related authority applicable to
commercial motor carriers. We examine these authorities but hold that they do not
7
negate as a matter of law the negligence duty of NOV upon which Appellants seek
to recover in this case.
NOV relied on a federal regulation that requires drivers of commercial motor
vehicles to secure their cargo.2 NOV also relied on the Fort Worth Court of Appeals’
decision in Texas Specialty Trailers, Inc. v. Jackson & Simmen Drilling Co., No. 02-
07-228-CV, 2009 WL 2462530 (Tex. App.—Fort Worth Aug. 13, 2009, pet. denied)
(mem. op.). This case involved a suit by the shipper against the carrier after the
carrier’s trailer separated from the vehicle and rolled into a ditch, damaging the
shipper’s property and causing lost profits. See id. at *1. Relying on the same
regulations cited by NOV and the common law, the court of appeals reasoned that
carriers are “solely responsible for distributing and loading cargo,” and carriers are
generally “‘fully’ liable for any loss or injury to property occurring during
transport.” Id. at *7. The court noted that carriers may avoid this liability by showing
that the loss or injury at issue was caused solely by the fault of the shipper. Id. “This
exception to carrier liability, however, only applies when the shipper assumes the
2 The regulation, incorporated into Texas law, provides as follows:
(a) General. A driver may not operate a commercial motor vehicle and a motor
carrier may not require or permit a driver to operate a commercial motor vehicle
unless—
(1) The commercial motor vehicle’s cargo is properly distributed and
adequately secured as specified in §§ 393.100 through 393.136 of this
subchapter.
. . . .
(b) Drivers of trucks and truck tractors. Except as provided in paragraph (b)(4) of
this section, the driver of a truck or truck tractor must—
(1) Assure himself/herself that the provisions of paragraph (a) of this section
have been complied with before he/she drives that commercial motor
vehicle;
49 C.F.R. § 392.9; see also 37 Tex. Admin. Code § 4.11 (“The director of the Texas Department
of Public Safety incorporates, by reference, the Federal Motor Carrier Safety Regulations, Title
49, Code of Federal Regulations, Parts . . . 390–393 . . . including all interpretations thereto . . . .”).
8
carrier’s responsibility for loading and securing the cargo.” Id. The court of appeals
noted that there was evidence that the carrier admitted it was responsible for loading
and securing the cargo. Id. at *7–8. The carrier’s employee testified that the shipper
only rendered assistance and did whatever the carrier directed the shipper to do. Id.
at *7. Because the shipper had no duty as a matter of law with regard to loading the
cargo under the evidence presented, the court of appeals held that the trial court did
not err by failing to submit jury issues regarding the shipper’s proportionate
responsibility. Id. at *8.
Texas Specialty applied the common law duty a carrier owes to a shipper for
damaged cargo, sometimes referred to as the “Savage rule.” See id. at *7 & nn.65–
67 (citing United States v. Savage Truck Line, Inc., 209 F.2d 442, 445–47 (4th Cir.
1953), and Mo. Pac. R.R. Co. v. Elmore & Stahl, 368 S.W.2d 99, 101 (Tex. 1963),
aff’d, 377 U.S. 134 (1964)).3 Under the common law, a carrier’s liability for damage
to cargo is similar to that of an insurer’s. See Savage Truck Line, 209 F.2d at 445;
Elmore & Stahl, 368 S.W.2d at 102. If a loss is not due to one of several exceptions,
it is immaterial whether the carrier has exercised due care or was negligent. Elmore
& Stahl, 368 S.W.2d at 101. One of the exceptions is the fault of the shipper. Id.4
The common law Savage rule and the subsequent federal regulations are
consistent because they require drivers to inspect the security of cargo both before
3 See generally Whiteside v. United States, No. 1:11-CV-154, 2013 WL 2355522, at *6–7
(E.D. Tex. May 28, 2013).
4 “Some courts have qualified [this] exception by holding the carrier liable even for
damages resulting from the negligence of the shipper in loading, where such improper loading was
known by the carrier at the time the shipment was accepted.” Abbott v. Tompkins, 283 S.W. 647,
648 (Tex. Civ. App.—Texarkana 1926, no writ); see Savage Truck Line, 209 F.2d at 445 (“When
the shipper assumes the responsibility of loading, the general rule is that he becomes liable for the
defects which are latent and concealed and cannot be discerned by ordinary observation by the
agents of the carrier; but if the improper loading is apparent, the carrier will be liable
notwithstanding the negligence of the shipper.”).
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driving a truck and during transport. See Smart v. Am. Welding & Tank Co., 826
A.2d 570, 575 (N.H. 2003). The Savage rule and attendant regulations reflect the
“everyday practice and understanding in the trucking business . . . that carriers
logically should have the final responsibility for the loads that they haul.” Decker v.
New England Pub. Warehouse, Inc., 749 A.2d 762, 766–67 (Me. 2000) (“The
Savage rule simply extends the industry’s reasonable understanding to negligence
suits involving carriers and shippers.”); accord Vargo-Schaper v. Weyerhaeuser Co.,
619 F.3d 845, 849 (8th Cir. 2010); Smart, 826 S.2d at 573–74. Outside of Texas, the
rule has been extended beyond cases involving damage to cargo, including cases
where employees of carriers have sustained personal injuries. Decker, 749 A.2d at
767.
But the parties do not cite, and this court has not found, any case applying the
Savage rule and attendant regulations to negate a defendant’s duty owed to innocent
third parties, such as Amanda Bujnoch. Some courts have reasoned that the Savage
rule would not apply under these circumstances:
The situation would be markedly different in a case involving a party
outside of the trucking industry. Pedestrians and non-commercial
motorists, to name two possible third parties, injured in an accident
caused by a shipper’s negligent loading of cargo would still be able to
sue that shipper for compensation despite the Savage rule. Shippers
could not rely on Savage to bar claims from those not involved in the
industry and who had no opportunity to remedy any negligence.
Id. at 767 n.3; accord Syngenta Crop Prod., Inc. v. Doyle Brant, Inc., No. 3:06-CV-
84-S, 2008 WL 167293, at *3 (W.D. Ky. Jan. 16, 2008) (denying summary judgment
because the Savage rule was inapplicable to an injured party who was not involved
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in the trucking industry and had no opportunity to ensure that chemicals were
properly loaded on the trailer).5
In sum, the common law rules regarding a carrier’s liability to a shipper, as
reflected in Texas Specialty and attendant regulations, govern the rights and
liabilities among carriers and shippers. But this case involves personal injury to an
innocent third party with no connection to the trucking industry—someone who had
no opportunity to remedy any negligence. Thus, we are not persuaded that NOV’s
authorities negate duty as a matter of law in this case. We now turn to the issue of
whether NOV owed a duty to Amanda under the familiar duty principles.
D. NOV’s Duty to Use Reasonable Care in the Rendering of Services
NOV argued in its motion for summary judgment that (1) it did not “owe the
traveling public a duty to inspect or ensure that Big Red, an independent contractor,
secured its load prior to entering a public road or highway”; (2) NOV’s safe-work
policy did not create a duty when none otherwise existed; and (3) it was not
foreseeable that the driver would fail to exercise due care and secure his load before
entering a public highway. Appellants contend that NOV owed Amanda a duty to
exercise reasonable care in loading and securing the mud and that NOV undertook
to perform a duty owed by another to Amanda.
Texas law generally imposes no duty to take action to prevent harm to others
absent certain special relationships or circumstances. Torrington Co. v. Stutzman, 46
5 Furthermore, at least one court has held that the Savage rule and federal regulations did
not negate the duty of a shipper in a case involving a contribution claim asserted by the carrier
against the shipper after they had settled with injured third parties. See Locicero v. Interspace
Corp., 266 N.W.2d 423, 425, 427 (Wis. 1978) (holding that the Savage rule and federal regulations
impose a duty on the carrier to secure the load safely, “but they do not relieve those who breach a
common law duty of care from liability for their negligence and their comparative share of the
resulting damages”—in particular, they do not relieve a shipper from “common law or contractual
liability for causing an unsafe load”).
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S.W.3d 829, 837 (Tex. 2000). Thus, as a matter of law, a mere bystander who did
not create a dangerous situation is not required to become a good Samaritan and
prevent injury to others. Id. (citing SmithKline Beecham Corp. v. Doe, 903 S.W.2d
347, 353 (Tex. 1995)). But, if a party negligently creates a dangerous situation, the
party then has a duty “to do something about it to prevent injury to others if it
reasonably appears or should appear to him that others in the exercise of their lawful
rights may be injured thereby.” Id. (quoting SmithKline Beecham, 903 S.W.2d at
353). One who acts may thereby become subject to the duty of acting carefully. Fort
Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 396 (Tex. 1991) (citing
Glanzer v. Shepard, 135 N.E. 275, 276 (N.Y. 1922)). Thus, “a duty to use reasonable
care may arise when a person undertakes to provide services to another.” Torrington,
46 S.W.3d at 837.
As to third parties, specifically, the Restatement (Second) of Torts § 324A
states the rule:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to liability to the
third person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if . . . he has undertaken to
perform a duty owed by the other to the third person[.]
Restatement (Second) of Torts § 324A (1965), quoted in Sbrusch, 818 S.W.2d at
396.
The First Court of Appeals has relied on the Restatement to uphold a duty for
a defendant who supervised the loading of a pipe when the pipe later fell off a
moving truck and killed another driver. See C & H Nationwide, Inc. v. Thompson,
810 S.W.2d 259, 267 (Tex. App.—Houston [1st Dist.] 1991), rev’d in part on other
grounds, 903 S.W.2d 315 (Tex. 1994). In that case, Shell hired C & H Nationwide
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to transport Shell’s pipe from Energy Coatings’ facility after Energy Coatings had
coated the pipe with epoxy. See id. at 262. Shell also hired Ecotech to “monitor the
coating process and monitor the loading and securing of the pipe to ensure the
coating was not damaged.” Id. Energy Coatings loaded the pipe onto the tractor
trailer, and C & H Nationwide secured it with straps. Id. The court of appeals upheld
the jury’s verdict against Ecotech despite Ecotech’s argument that it owed no duty
to the decedent. See id. 266–67.
The court of appeals reasoned that “a duty arises when a person’s conduct
poses a foreseeable risk to another that could be avoided by the exercise of ordinary
care.” Id. at 266. The court also noted that a person should exercise ordinary care to
avoid harm if a reasonable person would recognize that his conduct poses a risk of
harm to another. Id. The court held that Ecotech could “foresee that if the pipe was
not safely secured, the pipe might come off the trailer in transit and injure another
motorist.” Id. at 267. And, “Ecotech could foresee that its conduct in supervising the
loading of the pipe could create a risk of harm to another and that risk of harm could
be avoided by exercising ordinary care in its conduct.” Id. Thus, the decedent was
within the scope of Ecotech’s duty to exercise ordinary care in supervising the
loading of the pipe. Id.
Also relying on the Restatement, the Dallas Court of Appeals reversed the
trial court’s summary judgment for the defendant in Steward v. Costello, No. 05-02-
00679-CV, 2003 WL 115453, at *1 (Tex. App.—Dallas Jan. 14, 2003, no pet.)
(mem. op.). A customer purchased some pipes from Kaufman Pipe and Supply, and
Kaufman’s employee assisted the customer in loading the pipe onto a flatbed trailer.
Id. The customer secured the pipes to the trailer, and Kaufman’s employee measured
the pipes extending over the end of the trailer to determine whether they required
red flags. See id. at *1 & n.1. He told the customer that it was “legal,” and the
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customer left. Id. at *1. The plaintiff collided with the trailer and was injured by the
pipes. Id. The plaintiff sued Kaufman and alleged that Kaufman was negligent by
failing to ensure the pipes were properly secured and failing to put a red flag on the
pipes. Id.
In Steward, the parties did not dispute that the customer had a duty to secure
the pipes to the trailer and attach a red flag if they extended too far past the trailer.
Id. at *2. The issue was whether Kaufman assumed this duty. Id. The court of appeals
upheld Kaufman’s duty to the plaintiff because the Kaufman employee’s “job duties
included loading pipe purchased from Kaufman into the customer’s vehicle,” and
the employee “knew it was necessary to secure the pipe in order to prevent injury to
third parties.” Id.
Here, the parties do not dispute that Big Red, as a carrier, ordinarily has the
duty to load and secure cargo. See Texas Specialty, 2009 WL 2462530, at *7. NOV’s
solids control operator testified, however, that it was NOV’s responsibility to load
the open-top dump trailer with mud. As part of this responsibility, the solids control
operator testified that he was supposed to verify that the driver had secured the load
of mud. Yet, the solids control operator testified that the driver did not get out of the
trailer or verify that the load was secured. And, the solids control operator recognized
that if mud leaked onto a highway, it would pose a risk to people traveling on the
highway, like Amanda Bujnoch.
NOV was not a mere bystander in this case. NOV, having undertaken the duty
to load the mud, was required to use reasonable care in doing so to prevent an
unreasonable risk of harm to other motorists who would be affected if the load was
inadequately secured. Cf. Golden Spread Council, Inc. No. 562 of Boy Scouts of
America v. Akins, 926 S.W.2d 287, 292 (Tex. 1996) (holding that the defendant,
having undertaken to recommend someone for a position, had a duty to use
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reasonable care in doing so to prevent an unreasonable risk of harm to others who
would be affected). By loading mud into an open-top dump trailer and foreseeing
that spillage could cause injury to motorists, NOV had a duty “to do something about
it to prevent injury to others.” See Torrington, 46 S.W.3d at 837. NOV’s loading the
mud into an open-top dump trailer without allegedly securing the load or verifying
that the load was secured, and with knowledge that the trailer would traverse Texas
highways, posed a foreseeable risk to other motorists. See Thompson, 810 S.W.2d at
266. A reasonable actor in NOV’s position would recognize that its conduct posed a
risk of harm to others. See id.
NOV contends that there is “no evidence cited by Appellants that NOV could
foresee that [the driver] would not exercise due care and secure his load before
entering a public highway.” But the analysis of foreseeability concerns the “risk of
harm (injury) to others,” not whether another actor with a duty will fulfill that duty.
See Phillips, 801 S.W.2d at 527. It is only in “exceptional cases” that a party with a
duty may shift the “entire responsibility for the situation” to another; this is not one
of those cases. See Restatement (Second) of Torts § 452, cmt. d–e (1965) (noting
that when “the personal safety of third persons is threatened, it is probably true that
normally any duty to exercise reasonable care for their protection cannot be
shifted”). Regardless, Appellants have cited to sufficient evidence to raise a fact
issue on the foreseeability of whether the driver would secure the load of mud. For
example, NOV had a “safe work” procedure to verify that truck drivers secured their
loads, and NOV knew that the driver did not get out of the truck and walk around to
do any type of verification that the load was secure. Cf. Thompson, 810 S.W.2d at
267 (duty to third-party motorist established by undertaking to monitor the loading
and securing of cargo performed by others).
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Finally, NOV cites several cases concerning the duty a landowner owes to the
traveling public on roads adjacent to their land.6 In each case, the court declined to
place a duty on landowners to prevent accidents when motorists collided near the
property. In Naumann for example, upon which NOV principally relies, a tractortrailer
was loaded with cargo at the landowner’s premises. 749 S.W.2d at 190. When
the tractor-trailer left the premises, it made a right turn onto a two-lane road and
blocked both lanes of traffic in the process. Id. Another driver struck the tractortrailer.
Id. The court of appeals held that the landowner owed no duty to the motorist
because “a landowner’s duty to exercise reasonable care not to endanger the safety
of persons on an abutting highway does not create an obligation to guard passing
motorists against the possible negligence of an independent contractor over whom
the landowner exercises no control and whose competence to perform his duties the
landowner has no reason to doubt.” Id. at 191–92. Critically, the dangerous situation
in Naumann was not created by the landowner. Id. at 192. The landowner was a
“mere bystander who did not create the dangerous situation.” Id. “The same
dangerous situation exists every time a tractor-trailer makes a right turn at an
intersection of two-laned roads.” Id.
NOV’s landowner cases involve failures of the drivers to exercise due care
while driving or parking on roadways, and the landowners had no reason to foresee
that the drivers would act negligently. Here, NOV’s duty concerns conduct at the
drilling site when NOV loaded the mud into an open-top dump trailer. Unlike in
6 NOV cites the following cases: Heubotter v. Diamond Shamrock Refining Co., No. 04-
99-00243-CV, 1999 WL 1244422 (Tex. App.—San Antonio Dec. 22, 1999, no pet.) (not
designated for publication); Lawson v. B Four Corp., 888 S.W.2d 31 (Tex. App.—Houston [1st
Dist.] 1994, writ denied); Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760 (Tex. App.—
Houston [1st Dist.] 1994, no writ); Carter v. Steere Tank Lines, Inc., 835 S.W.2d 176 (Tex. App.—
Amarillo 1992, writ denied); Naumann v. Windsor Gypsum, Inc., 749 S.W.2d 189 (Tex. App.—
San Antonio 1988, writ denied).
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Naumann, NOV participated in creating the dangerous situation that led to the
injury: NOV placed on a trailer, which NOV knew would traverse Texas highways,
material that NOV knew could cause a hazard to other motorists if it was
inadequately secured.
In sum, NOV did not meet its summary-judgment burden to negate duty as a
matter of law. The trial court erred by granting summary judgment on NOV’s
negligence claim.7

* * *

7 On appeal, Appellants challenge the summary judgment regarding their negligence claim
only, not any of their other claims.

Outcome: Having sustained Appellants’ issues concerning summary judgment on their
negligence claim, we reverse that portion of the trial court’s judgment and remand
for further proceedings.

Plaintiff's Experts:

Defendant's Experts:

Comments: