Full Opinion

Opinion filed October 29, 2026 In The Eleventh Court of Appeals __________ No. 11-24-00283-CV __________ KATHY BURGESS INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF STEPHEN BURGESS, Appellant V. GUSTAVO JIMENEZ, INC. D/B/A SW FREIGHTLINES AND JEFFREY EBENER, Appellees On Appeal from the 161st District Court Ector County, Texas Trial Court Cause No. B-22-10-1278-CV MEMORANDUM OPINION This appeal arises out of a tragic accident that occurred on Interstate 20 in Eastland. Stephen Burgess died when he lost control of his pickup, crossing the eastbound lanes of the highway and colliding with a loaded tractor-trailer driven by Jeffrey Ebener, an employee of Gustavo Jimenez, Inc. d/b/a SW Freightlines (SW Freightlines). Kathy Burgess, the passenger in the pickup who survived the collision, sued SW Freightlines and Ebener (collectively, the defendants) for negligence. The defendants filed motions for summary judgment. The trial court granted the motions, and this appeal followed. We affirm the trial court’s orders in favor of SW Freightlines and Ebener. Factual and Procedural Background At the time of the accident, Ebener, who is an employee of SW Freightlines, was traveling eastbound on Interstate 20, carrying a load from El Paso to Meridian, Mississippi. The roadway was wet from rain. Prior to the point of impact, Stephen accelerated up an eastbound entrance ramp, intending to merge into the outside lane. Kathy was a passenger in the front seat and was reading an article on her cell phone. Moments later, the pickup left its intended path and moved across the eastbound lanes of Interstate 20. The cause of the pickup’s sudden loss of control is disputed. Kathy contended that Ebener’s tractor-trailer struck the pickup from behind while she and Stephen were still on the entrance ramp. According to Kathy, Stephen had control of the pickup as it ascended the ramp. Stephen then exclaimed, “Oh, f--k, we’re hit,” and Kathy sensed that something was approaching quickly from behind. At about the same moment, Kathy felt an impact to the rear of the pickup. That impact, she maintained, caused the pickup to careen across the highway, resulting in a second impact between the two vehicles. Kathy also relied on Ebener’s statement that Stephen had “gassed it” to get ahead of the Freightliner, which prompted Ebener to begin moving into the left lane. In Kathy’s view, this evidence placed Ebener’s truck close behind the pickup just before it lost control. 2 The defendants offered a different explanation to the trial court. According to the defendants, the pickup lost control on its own before it ever made contact with Ebener’s truck. As Stephen looked back to his left to check traffic, he steered the pickup to the right, and it hydroplaned on the wet roadway. Both right-side tires then dropped into the south bar ditch, causing Stephen to overcorrect back toward the roadway and sending the pickup into a side-skid. The pickup then slid across both eastbound lanes, at “either an angular side skid or a complete side skid” perpendicular to the roadway. In support of this theory, defendants pointed to the deposition testimony of Ebener, who stated that, after the pickup went off the ramp and into the gravel, he moved the Freightliner into the inside lane to give the pickup room to merge. Ebener indicated that, after he completed his mirror check and entered the left lane, the pickup continued out of control toward the center median and struck the front passenger side of the Freightliner. Ebener also testified that he was traveling at sixty to sixty-five miles per hour in a seventy-five mile-per-hour zone and had slowed further as he approached the ramp. Following the collision, both vehicles entered the center median. The pickup separated from the Freightliner, began to roll, and struck the center cable barrier. Stephen, who was not wearing a seatbelt, was ejected from the pickup as it struck the barrier, and the pickup then rolled over him, killing him. Kathy survived the collision but claims to have suffered several physical injuries. On October 27, 2022, Kathy filed suit against the defendants in Ector County. In her lawsuit, she alleged that Ebener was negligent in failing to maintain a reasonable speed under the circumstances, failing to maneuver safely after the initial impact, failing to keep a proper lookout, and failing to account for the speed of surrounding traffic. 3 Both defendants moved for summary judgment. SW Freightlines moved for a no-evidence summary judgment on every element of Kathy’s negligence claim. Ebener filed a combined motion, seeking summary judgment on both no-evidence and traditional grounds. In his no-evidence motion, Ebener asserted that there was no evidence to support the essential elements of duty, breach, and causation. In his traditional motion, he asserted that the summary judgment evidence conclusively negated the breach and causation elements of Kathy’s claims. In her response to Ebener’s motion for summary judgment, Kathy raised two evidentiary objections. First, she objected to the opinion testimony of Trooper Robert McGrath, the Department of Public Safety trooper who investigated the collision, contending that he was not qualified to render accident-reconstruction opinions and that his methodology was unreliable. Second, she objected on hearsay grounds to the recorded statements of Marcus Neely, an eyewitness whose account of the collision was captured on law enforcement body camera footage. However, the record does not include any rulings on these objections. The trial court heard the motions for summary judgment on September 27, 2024. On the same day, the court granted SW Freightlines’ no-evidence motion. Several days later, the court granted Ebener’s motion for summary judgment. The court’s order granted Ebener’s motion without specifying whether it granted the no- evidence motion, the traditional motion, or both. Together, these orders disposed of all of Kathy’s claims against both defendants, thus making them final and appealable. Kathy appeals only from the trial court’s summary judgment in favor of Ebener; she does not challenge the separate summary judgment in favor of SW Freightlines. Accordingly, we affirm the trial court’s order granting SW Freightlines’ motion for summary judgment without addressing the merits of 4 Kathy’s appeal.1 See Alanis v. Univ. of Tex. Health Sci. Ctr., 843 S.W.2d 779, 784 (Tex. App.—Houston [1st Dist.] 1992, writ denied). Did Kathy Preserve Her Objections to the Summary Judgment Evidence? In her third and fourth issues, Kathy complains that the trial court erred when it failed to exclude the opinion testimony of Trooper McGrath, as well as the recorded statements of Marcus Neely. To raise these complaints on appeal, however, Kathy first had to preserve them in the trial court. FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 837 (Tex. 2022); Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 165–66 (Tex. 2018). When a party objects to summary judgment evidence but fails to obtain a ruling, the objection is waived, and the challenged evidence remains part of the summary judgment record. FieldTurf, 642 S.W.3d at 837. Here, Kathy objected to Trooper McGrath’s opinion testimony and to Neely’s recorded statements, but the appellate record does not indicate that she ever obtained a ruling on either objection. Accordingly, she has waived her complaints about that evidence. See id. Because Kathy waived these objections, we need not and do not consider them on the merits. We overrule Kathy’s third and fourth issues. We note that the no-evidence grounds for summary judgment in Ebener’s motion for summary 1 judgment essentially tracked the no-evidence grounds in SW Freightlines’s motion for summary judgment. 5 Did the Trial Court Err in Granting Ebener’s No-Evidence Motion for Summary Judgment? In her first issue, Kathy complains that the trial court erred in granting Ebener’s no-evidence motion for summary judgment pursuant to Rule 166a(i) of the Texas Rule of Civil Procedure. 2 A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362–63 (1960)). Thus, “a no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Tex. Petrol. Land Mgmt., LLC v. McMillan, 641 S.W.3d 831, 840 (Tex. App.—Eastland 2022, no pet.). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” King Ranch, 118 S.W.3d at 751 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)); McMillan, 641 S.W.3d at 840. “More than a scintilla of evidence exists when the evidence ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’” 2 We note that the Texas Supreme Court has recently revised Rule 166a. Although the “rewrite is not intended to substantively change the law,” it has resulted in a renumbering of the provisions of the rule. See Final Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Tex. Feb. 27, 2026). The amendments to this rule only apply to motions for summary judgment filed on or after March 1, 2026. Because the motions for summary judgment in this case were filed prior to that date, we refer to the rule in effect at the time the motions were filed. See id. 6 King Ranch, 118 S.W.3d at 751 (quoting Havner, 953 S.W.2d at 711); McMillan, 641 S.W.3d at 840. Ordinarily, when a party moves for summary judgment on both traditional and no-evidence grounds, we first consider the no-evidence motion. KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019). However, we are mindful that “where . . . a trial court grants a motion for summary judgment that raises traditional and no-evidence grounds and both parties present evidence,” the ultimate question in connection with each motion is “whether the nonmovant raised a fact issue to preclude summary judgment.” Fossil Grp., Inc. v. Harris, 691 S.W.3d 874, 882 (Tex. 2024). 3 When, as here, the trial court’s order does not specify the grounds relied upon, we must affirm summary judgment “if any of the summary judgment grounds are meritorious.” FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). “The elements of a negligence cause of action are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach.” Tenaris Bay City Inc. v. Ellisor, 718 S.W.3d 193, 197 (Tex. 2025) (quoting Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013)). In his no-evidence motion for summary judgment, Ebener challenged the elements of duty, breach of duty, and proximate cause. Kathy cited Fossil Group, along with several other cases, for this same proposition in her reply 3 brief. In a supplemental brief, Ebener objected to Kathy’s reliance on Fossil Group because it was not “timely.” However, the standard of review is a legal question which we must resolve independently of any arguments, agreements, or concessions of the parties. Caprock Inv. Corp. v. F.D.I.C., 17 S.W.3d 707, 713 (Tex. App.—Eastland 2000, pet. denied) (“Stipulations as to legal conclusions, as opposed to facts, are not binding on courts or parties.”). Accordingly, while the parties may not raise new issues in their reply brief, White v. Lozano, 719 S.W.3d 407, 420 & n.7 (Tex. App.—Corpus Christi–Edinburg 2025, no pet.), they may raise arguments or elaborate on their previous arguments concerning the standard of review. 7 A. Duty Ebener first challenged the existence of a legal duty to use ordinary care. Whether a duty exists is a question of law for the court to decide from the facts surrounding the occurrence in question. Elephant Ins. Co., LLC v. Kenyon, 644 S.W.3d 137, 145 (Tex. 2022). To carry her burden on this element, Kathy relied on Ebener’s own deposition testimony. That testimony showed that Ebener was operating a Freightliner tractor- trailer eastbound on Interstate 20 when the collision occurred. It further showed that his trailer was loaded with more than 30,000 pounds of freight, and that Ebener and his loaded rig together weighed more than 60,000 pounds. A driver on a public roadway owes a duty to exercise ordinary care for the safety of others using the road. De Winne v. Allen, 277 S.W.2d 95, 98 (Tex. 1955); Ciguero v. Lara, 455 S.W.3d 744, 748 (Tex. App.—El Paso 2015, no pet.). That duty includes a continuing obligation to maintain a proper lookout and not to “proceed blindly and in disregard of dangers that might reasonably be anticipated to exist.” De Winne, 277 S.W.2d at 98; see also Lozada v. Posada, 718 S.W.3d 262, 267 (Tex. 2025) (“In driving his tractor-trailer,” the operator “owed a common-law duty ‘to act as a reasonably prudent person . . . toward others on the road.’” (quoting Perry v. S.N., 973 S.W.2d 301, 306 (Tex. 1998))). Kathy’s summary judgment evidence showed that Ebener was operating a large, loaded commercial vehicle on a public highway at the time of the collision. As such, Ebener owed a duty to exercise ordinary care for the safety of the other motorists around him, including the vehicle that was operated by Stephen. De Winne, 277 S.W.2d at 98; Lozada, 718 S.W.3d at 267. 8 We conclude that Kathy produced more than a scintilla of evidence on the element of duty, and the trial court could not have properly granted Ebener’s no- evidence motion on the grounds that Ebener owed no duty. B. Proximate Cause In his motion, Ebener alleged that there was no evidence that his conduct was a proximate cause of the accident. Proximate cause requires proof of two elements: (1) cause in fact and (2) foreseeability. Ellisor, 718 S.W.3d at 197. “Cause in fact, in turn, also has two essential components: (1) ‘but for’ causation, and (2) ‘substantial factor’ causation.” Id. (quoting Pediatrics Cool Care v. Thompson, 649 S.W.3d 152, 158 (Tex. 2022)). Thus, a party’s negligence is the cause-in-fact of an injury if (1) “without the act or omission, the harm would not have occurred” (“but for” causation), and (2) “the negligence was a substantial factor in causing the injury” (“substantial factor” causation). Thompson, 649 S.W.3d at 158 (quoting Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018)). “But for” causation simply means that, absent the allegedly negligent act or omission, “the harm would not have occurred.” Rogers v. Zanetti, 518 S.W.3d 394, 403 (Tex. 2017) (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)). “The substantial-factor requirement incorporates ‘the idea of responsibility’ into the question of causation.” Werner Enterprises, Inc. v. Blake, 719 S.W.3d 525, 528 (Tex. 2025) (quoting Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex. 1991)). “Thus, even if the defendant’s negligence is part of the causal chain of events that led to the injury, the defendant is not liable if his involvement was a mere ‘happenstance of place and time.’” Id. (quoting Lear Seigler, 819 S.W.2d at 472). “Instead, the substantial-factor requirement means that liability falls only on a party whose substantial role in bringing about the injury is such that he is 9 ‘actually responsible for the ultimate harm.’” Id. (quoting Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 224 (Tex. 2010)). In this case, Kathy’s theory of “but for” causation relies on an allegation that there were two impacts between the Freightliner and the pickup. The chain of events upon which she relies is particularly elaborate. She contends that Ebener’s tractor- trailer first bumped the rear of the pickup. She contends that the bump then caused Stephen to lose control. And finally, she contends that the out-of-control pickup was again struck by the Freightliner in a second, more severe impact. But she does not support her allegations of the chain of events and causation with expert testimony of an accident reconstructionist or otherwise. All causation theories rely on a chain of events, and each link must be supported by more than a scintilla of evidence. See King Ranch, 118 S.W.3d at 751; Alarcon v. Alcolac Inc., 488 S.W.3d 813, 827 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“Even if only one of these three inferences is unreasonable, [claimant’s] entire premise must fail because each is dependent on the others to raise a genuine issue of material fact” supporting the injury.). A plaintiff may prove the links in a causal chain by either direct or circumstantial evidence. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). Circumstantial evidence will not suffice, however, when it rests on “mere conjecture, guess, or speculation.” Id. Thus, when the evidence is “so slight as to make any inference a guess,” it is, in legal effect, no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Furthermore, a vital fact may not be established by “piling inference upon inference.” Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968). Whether the links in the causal chain of an accident may be proved without expert testimony depends on the nature of the proof. In some circumstances, lay 10 testimony is enough. Lay testimony can establish causation when “general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition.” Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984); see also Guevara v. Ferrer, 247 S.W.3d 662, 665–67 (Tex. 2007). In that situation, lay testimony is sufficient where it establishes a “strong, logically traceable” sequence of events that will support a causation finding. Morgan, 675 S.W.2d at 733; see also Lopez-Juarez v. Kelly, 348 S.W.3d 10, 19–22 (Tex. App.—Texarkana 2011, pet. denied) (The testimony of a lay witness about how a collision occurred “presumes the witness observed or experienced the underlying facts.”). The rule is different when, due to the absence of eyewitnesses to the accident, the causal chain must be established from the physical evidence. See, e.g., TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 240 (Tex. 2010) (permitting accident reconstruction testimony from an expert in a case where all of the passengers in a vehicle, except for an infant, were killed in a collision with a gravel truck); Quintanilla v. Tuma’s Estate, 579 S.W.2d 531, 532 (Tex. App.—San Antonio 1979, writ ref’d n.r.e.) (“Since there were no eyewitnesses to the accident, the only evidence offered on the cause of the accident came from the accident reconstruction experts.”). In such situations, causation largely turns on the dynamics of how vehicles moved, collided, and came to rest, and the matter often lies beyond common experience, requiring expert testimony. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006) (expert testimony is required for matters “beyond jurors’ common understanding,” and whether it is necessary is a question of law); Bright v. Simpson, No. 11-17-00104-CV, 2019 WL 1941885, at *3 (Tex. App.—Eastland Apr. 30, 2019, no pet.) (mem. op.) (holding that, where lay testimony does not 11 establish a “strong, logically traceable” sequence, expert testimony is required to prove causation). In this instance, Kathy can supply some of the necessary lay testimony from her own contemporaneous perception of the accident. She testified that she felt “something bump us, hit us from behind,” and that the pickup then went “across the highway.” That testimony is some evidence of an initial impact and Stephen’s subsequent loss of control of the pickup. Kathy cannot, however, supply the remaining links from her perception, since she was reading an article on her cell phone when the sequence began. Thus, for example, she could not tell the factfinder that it was the Freightliner that bumped the pickup, nor did she testify about the full path of the pickup as it lost control or the manner in which the vehicles interacted following the “bump.” The factfinder is permitted to make reasonable inferences from the evidence. See Ford Motor Co. v. Castillo, 444 S.W.3d 616, 621 (Tex. 2014). However, to conclude that Kathy’s theory of the causal chain of events is correct, a factfinder would have to draw multiple inferences, one stacked upon the other. For example, the factfinder would have to infer that Ebener caused the initial impact. Then, from that inference, the factfinder would have to infer the physics of everything that followed, including the inference that the initial contact between the vehicles, rather than an independent loss of control on the wet roadway, sent the pickup across the highway and into the fatal second impact. The second inference depends entirely on the first, a practice that is prohibited under Schlumberger. 435 S.W.2d at 858; see also Marathon, 106 S.W.3d at 728 (“[A]n inference stacked only on other inferences is not legally sufficient evidence.”). We conclude that Kathy failed to produce more than a scintilla of probative evidence that Ebener’s conduct was a cause in fact of the collision. Cause in fact is 12 essential to proximate cause. Ellisor, 718 S.W.3d at 197. Otherwise, Ebener’s role in the tragic accident was nothing more than the “happenstance of place and time.” See Werner Enterprises, Inc., 719 S.W.3d at 528 (quoting Lear Seigler, 819 S.W.2d at 472). The trial court therefore properly granted Ebener’s no-evidence motion on the causation element, and that ground supports the summary judgment. FM Props., 22 S.W.3d at 872. We overrule Kathy’s first issue. Other Issues Having concluded that Kathy produced no evidence of cause in fact, we need not (and do not) address the question of whether she raised a fact issue on breach. Likewise, having concluded that the trial court did not err in granting the no- evidence motion for summary judgment, we need not (and do not) reach Kathy’s second issue, in which she contends that the trial court erred in granting the traditional motion for summary judgment. See TEX. R. APP. P. 47.1. This Court’s Ruling We affirm the trial court’s orders in favor of Ebener and Gustavo Jiminez, Inc. d/b/a/ SW Freightlines. JOHN M. BAILEY CHIEF JUSTICE October 29, 2026 Panel consists of: Bailey, C.J., Trotter, J., and Williams, J. 13