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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*

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Garrison Shields drove one of the first
cars to enter a multi-car pileup. Christina
Haargaard, a passenger in one of the cars
further down the chain, sued Shields and
others for negligence. The district court
granted summary judgment for Shields,
because Haargaard had failed to create a
fact question about whether Shields proxi-
mately caused her injuries. We affirm.
I.
Shields crested an overpass on a free-
way. A parked police car and two
wrecked cars blocked the two lefthand
lanes, which Shields and two other oncom-
ing cars occupied as they approached.
Constable Linnard Crouch, an off-duty
peace officer at the bottom of the hill,
testified that the patrol car was parked ten
yards from the bottom of the overpass, or
almost two hundred yards from the top of
the overpass. Shields either did not, or
could not, take evasive action fast enough
on the slick, wet pavement. On reaching
the patrol car, he swung into the far left-
hand lane and rear-ended a van parked in
front of the accident scene. Another vehi-
cle took evasive action by darting into the
nearest right-hand lane.
Elizabeth Smith, driving behind Shields,
noticed the police car only after Shields
had swerved to the left. Smith testified
that she did not have time to stop, and she
could not escape in either direction. The
stopped van and Shields blocked one of
those potential escape routes, and the
vehicle that had swerved right blocked
another. Smith hit the parked patrol car in
the near lefthand lane.
Haargaard claims that Kamika Harvey’s
and Roslyn Ray’s cars then slammed into
Smith’s. Shields avers that Harvey
brought her vehicle to a complete stop one
or two car lengths behind the stopped
vehicles; Ray braked but was hit from
behind. Angela Juneman’s car, with Haar-
gaard in the passenger’s seat, next collided
into Ray’s car, causing Junemann to veer
into the near right lane and collide with
William West’s vehicle. Jason Proctor
then rear-ended Juneman’s car, forcing
one or both of these cars to hit Harvey’s
car.
II.
After limited discovery, Shields moved
for partial summary judgment. The court
granted the motion because Haargaard had
not created a fact question about whether
Shields had proximately caused Haar-
gaard’s injuries. The court certified judg-
ment under FED. R. CIV. P. 54(b), allow-
ing Haargaard an immediate appeal.
III.
Haargaard has never identified compe-
tent summary judgment evidence that
Shields or Smith impaired the view of
Harvey and the other following drivers.
Nor has Haargaard pointed to any evi-
dence the Shields and Smith blocked es-
cape routes; both Shields and Smith
crashed into stopped vehicles already
occupying the two lefthand lanes. Harvey
and the other following drivers had the
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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

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

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quire, on the facts of the particular case,
that the first wreck in fact cause any
subsequent accidents. So we will turn to
the facts of this case, applying Bell.
C.
The district court held that Haargaard
had failed to create a fact question about
whether Shields’s delayed lane change was
a cause in fact. The court emphasized that
Harvey stopped short of the Shields/Smith
accident; any subsequent crashes resulted
from the previously blocked road, not from
Shields’s late braking and lane change.
Because the van already blocked the same
lane that Shields occupied, Shields did not
cause the accident.
Haargaard argues that Shields’s late
evasive action blocked the sight of
subsequent drivers and potential escape
routes. Haargaard presents some evidence
that Smith did not see the accident until
she was upon it. Smith testified that
Shields and another driver were in front of
her; she crested the hill; and five seconds
later each of the leading cars veered to one
side.
Smith veered to the left, into the van
stopped in front of the original accident.
The other car veered to the right, through
the open lanes of traffic and presumably to
safety. Smith testified that she braked, but
did not swerve, and drove straight into the
patrol vehicle. Less than five seconds
later, while still in the car, she heard but
did not feel the second accident.
Haargaard’s evidence creates a fact
question about whether Shields caused
Smith to crash but does not create a fact
question about whether the Shields/Smith
crash caused the subsequent accident.
Smith testified that no other cars were
within her sight when she crested the hill.
Haargaard has not argued that either
Shields or Smith blocked following
drivers’ line of sight.
Finally, the idea that Shields or Smith
blocked escape lanes is untenableSSboth
crashed into cars in occupied lanes.
Harvey had the same opportunity to see
and avoid the crash that Shields did: Each
6(...continued)
denied) (holding that when van negligently
sideswiped car and left car disabled on overpass,
van driver proximately caused secondary wreck
with disabled car); Hennessy v. Estate of Perez,
725 S.W.2d 507, 508 (Tex. App.SSHouston [1st
Dist.] 1987, no writ) (finding fact question for jury
where drunk driver overturned car and subsequent
drunk drivers ran into the crash scene); Tex.
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
rear-ending can proximately caused wreck between
second car and car third car); Westbrook v. Reed,
531 S.W.2d 890, 891-92, 893 (Tex. Civ.
App.SSAmarillo 1975, writ ref’d n.r.e.) (finding
that negligently causing primary accident in
sandstorm, when visibility was very poor,
proximately caused secondary wreck by following
vehicles); Herring v. Garnett, 463 S.W.2d 52, 54
(Tex. Civ. App.SSHouston [1st Dist.] 1971, writ
ref’d n.r.e.) (finding that driving with defective
tires creates liability not only for flat and primary
accident but also for secondary accident); Nash v.
Roden, 415 S.W.2d 251, 254–55 (Tex. Civ.
App.SSAustin 1967, writ ref’d n.r.e.) (holding that
when lead driver improperly applied brakes, spun
out, and was struck from behind, lead driver was
also responsible for secondary accident).

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

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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.

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