331 S.W.3d 879
Tex. App.2011Background
- Webbs filed a wrongful death suit against Maldonado arising from a 2007 crash that killed Richard Webb Jr.
- Webbs allege Maldonado entrusted the Cadillac to his brother Albert, who allegedly drove recklessly or without proper license.
- Webbs noticed Maldonado's deposition and Maldonado moved to quash until criminal proceedings concluded; deposition proceeded with Maldonado repeatedly invoking the Fifth Amendment.
- Approximately 18 months later, Maldonado moved for no-evidence summary judgment on negligent entrustment and related elements; Webbs offered nine pages of Maldonado deposition excerpts as evidence.
- Trial court granted the no-evidence motion; appellate record contained no other probative evidence about ownership, ownership of vehicle, Albert's status, or police reports.
- Court held that negative inferences from the Fifth Amendment could not substitute for probative evidence; ownership and other elements remained unproven; judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fifth Amendment invocation and summary judgment | Webbs: invocation creates a fact issue against summary judgment. | Maldonado: no evidentiary link; privilege cannot create evidence. | No error; no probative evidence to raise fact issue |
| Sufficiency of circumstantial evidence for negligent entrustment | Ownership and entrustment inferred from deposition excerpts. | No evidence establishing ownership or entrusted act; ownership not proved. | Insufficient evidence to raise a fact issue |
| Negative inferences from Fifth Amendment | Negative inferences may establish liability elements. | Negative inferences cannot replace probative evidence. | Negative inferences cannot create material fact issues; record lacks probative evidence |
| Preservation of public policy argument | Public policy against shielding liability via Fifth Amendment should be raised. | Argument not preserved on trial record. | Unpreserved; not reviewable on appeal |
Key Cases Cited
- Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001) (circumstantial evidence must transcend mere suspicion)
- Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925 (Tex. 1993) (suspicion cannot replace evidence; some suspicion to evidence chain)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (no-evidence standard uses standard for directed verdict)
- Baxter v. Palmigiano, 425 U.S. 308 (U.S. 1976) (civil adverse inferences permissible from privilege)
- Rylander v. University of Texas, 460 U.S. 752 (U.S. 1983) (negative inferences cannot substitute for evidence)
- Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001) (reiterates that circumstantial evidence must be probative)
- Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) (negligent entrustment elements framework)
- Blake v. Dorado, 211 S.W.3d 429 (Tex.App.-El Paso 2006) (Fifth Amendment invocation in civil cases may not alone create liability)