Edward Bujnoch, Judy Bujnoch, Jose C. Aguillon, as Next Friend of Tinley Bujnoch Aguillon, a Minor Child and Monica Janssen, as Dependent Administratrix of the Estate of Amanda Lauren Bujnoch v. National Oilwell Varco, L.P.
542 S.W.3d 2
Tex. App.2017Background
- Amanda Bujnoch was killed after her vehicle slid on oil-based mud that had fallen onto a public roadway; mud came from an open-top dump trailer hauling drill-site cuttings.
- NOV (National Oilwell Varco) performed solids-control work at the rig and its employee loaded the mud into Big Red’s open-top trailer; Big Red was an independent carrier and its trailer had no tarp.
- NOV’s solids-control operator admitted he was responsible for loading the trailer and for verifying the driver had secured the load under NOV’s “safe work” procedure, but he did not physically verify latches and the driver did not walk around the trailer before departing.
- Appellants (Amanda’s estate, parents, and next friend for her child) sued NOV for negligence among other claims; NOV moved for traditional summary judgment arguing it owed no duty.
- NOV’s summary-judgment grounds relied on (a) federal and Texas regulations placing cargo-securing duties on carriers and the Savage rule allocating carrier liability to shippers/receivers, (b) NOV’s internal policies did not create a duty, and (c) nonforeseeability of the driver’s failure to secure the load.
- The trial court granted NOV’s motion; the court of appeals reversed as to the negligence claim and remanded, holding NOV did not negate duty as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of duty to injured third parties | NOV undertook loading and thus owed a common-law duty to use reasonable care in loading and verifying the load to protect motorists. | NOV owed no duty because carrier (Big Red) had non-delegable statutory/common-law duty to secure cargo. | Court: NOV owed a duty; undertaking to load and foreseeability of roadway hazard create a duty to third parties. |
| Effect of carrier regulations and Savage rule | Regulations/Savage rule govern carrier-shipper allocation but do not bar third-party negligence claims against a shipper/loader who creates a hazard. | Regulations and Savage rule impose final responsibility on carrier and negate NOV’s duty as a matter of law. | Court: Regulations/Savage rule do not negate NOV’s common-law duty to third-party motorists here. |
| NOV’s internal policy / voluntary undertaking | NOV’s safe-work procedures and the employee’s role in loading established an assumed duty to verify the load, creating liability if negligently performed. | Internal policy alone cannot create a duty where none exists as a matter of law. | Court: NOV’s undertaking to load and supposed verification obligations are legally sufficient to raise a fact issue on duty. |
| Foreseeability and summary-judgment burden | It was foreseeable that unsecured mud could spill and endanger motorists; evidence raised fact issues (policy, operator testimony). | No evidence NOV could foresee the driver would fail to secure the load; responsibility lay entirely with the carrier. | Court: Foreseeability focuses on risk of harm, not another actor’s performance; NOV failed to negate foreseeability and thus failed its summary-judgment burden. |
Key Cases Cited
- City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979) (nonmovant need not preserve challenge to legal sufficiency of movant's summary-judgment grounds)
- Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507 (Tex. 2014) (movant must conclusively establish entitlement to traditional summary judgment)
- Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523 (Tex. 1990) (factors for duty analysis; foreseeability is dominant)
- Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) (no general duty to act absent special circumstances; duty may arise from undertaking)
- Elmore & Stahl, Mo. Pac. R.R. Co. v. Elmore & Stahl, 368 S.W.2d 99 (Tex. 1963) (Savage rule on carrier liability for cargo)
- United States v. Savage Truck Line, Inc., 209 F.2d 442 (4th Cir. 1953) (historic common-law rule allocating primary responsibility for cargo to carriers)
- C & H Nationwide, Inc. v. Thompson, 810 S.W.2d 259 (Tex. App.—Houston [1st Dist.] 1991) (duty can arise where party supervises or undertakes loading and creates foreseeable risk)