OPINION
Appellant Lazaro Reyes Ciguero (“Ci-guero”), individually and on behalf of his son Jesus Reyes Ricardez’s estate (“Ricar-dez”), appeals an adverse no-evidence summary judgment granted in favor of Jose Lara. We affirm."
BACKGROUND
This is a vehiclе-pedestrian strike case. Jose Lara was driving along the Cesar Chavez Border Highway in El Paso, Texas, sometime after 8 p.m. when his car hit Jesus Reyes Ricardez, a Mexican national who was running along the highway. The highway runs parallel tо the international border between El Paso and Ciudad Juarez, Mexico, and Ricardez was apparently being pursued by United States Customs and Border Protection (“CBP”) officers. The sun had already set at the time of the collision, but the Bоrder Highway has some street lights. Ricardez was wearing blue jeans, a black shirt, a jean jacket, and tennis shoes when he was hit. Within seconds after impact, four marked CBP vehicles with flashing signal lights arrived on the scene. Lara did not see the CBP vеhicles until after the collision. Ricardez was transferred to University Medical Center, where he died of his injuries.
Lara stated in deposition that he does not remember how fast he was driving, although he usually drives at or under the speed limit. Latеr, he stated that he was driving at or under 55 miles per hour. Lara also testified that he did not remember whether he applied his brakes before impact, and that the collision happened so quickly that he did not have a chance to do anything to avoid it. He did not realize he had hit a person until he exited his car. Lara admitted during deposition that he was generally aware that people occasion *747 ally climb over the fence abutting the Border Highway from Mexico and attempt to walk or run across the highway. In Lara’s opinion, the accident was unavoidable. No other competent summary judgment evidence exists in the record before us. 1
Appellant, Ricardez’s father, brought suit for negligence individually and on behalf of his son’s estate. Lara moved for no-evidence summary judgment, contending that Appellant failed to establish both a breach of a driver’s general duty of care and that Lara was the proximate cause of his son’s injuries. Following a hearing, the trial court granted Lara’s motion for summary judgment. This appeal followed.
DISCUSSION
In his sole issue, Appellant maintains that Lara’s testimony that he did not remember if he apрlied his brakes prior to impact and did not know what speed he was traveling created preclusive fact issues on whether Lara breached his duties to drive at a reasonable speed, keep a reasonablе lookout, and avoid hitting pedestrians if possible. Assuming without deciding that such testimony could create fact issues on breaches of a driver’s general duties of care, we find that Appellant failed to furnish more than a scintilla of еvidence establishing that the accident could have been avoided. As such, no record evidence exists to support a critical element of proximate cause.
Standard of Review
We review summary judgment decisions
de novo. Merriman v. XTO Energy, Inc.,
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“WRen reviewing a no-evidеnce summary judgment, we review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonаble jurors could, and disregarding contrary evidence unless reasonable jurors could not.”
Timpte Indus., Inc.,
Analysis
Ordinarily, the fact that a collision occurred, standing alone, does not prove negligence as a matter of law.
See Benavente v. Granger,
A driver has a general duty to exercise the ordinary care a reasonably prudent person would exercise under the same circumstances to avoid a foreseеable risk of harm to others.
Williamson Co. v.
Voss,
Proximate cause consists of two substantive elements — cause in fact and foreseeability.
W.C. LaRock, D.C., P.C. v. Smith,
Here, we need not decide whether the evidence presented creates fact issues on breach. Even if Larа was speeding or even if his failure to see CBP vehicle lights prior to the collision raised a fact issue on whether he kept a proper lookout, Appellant failed to offer more than a scintilla of evidence on proximate cause, i.e. that Lara could have avoided colliding with Ricardez if Lara fulfilled his general duties as a driver.
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In reaching this conclusion, we note that three of our sister courts have dealt with similar fact pattеrns in the no-evidence summary judgment context. For example, in
Kahng v. Verity,
No. 01-07-00695-CV,
Similarly, in
Vicknair v. Peters,
No. 12-13-00034-CV,
Kahng, Vicknair, and Turner are instructive. A driver’s testimony, that a collision occurred concurrent with or immediately preceding his recognition of a road hazard, standing alone, constitutes no evidence on the issuе of proximate cause because it does not raise a fact issue on whether the accident could have been avoided. While Appellant correctly notes that a comparative negligence approach on no-evidenee summary judgment is inappropriate, and that deceased individuals are generally presumed to not be behaving negligently, we are not making a merits assessment on whether Lara, Ricardez, or both were at fault. Instead, we only answer the narrow evidentiary question of whether there is more than a scintilla of evidence showing that Lara could have avoided hitting Ricardez, which would raise a fact issue on whether his negligence was the cause-in-fact of Ricardez’s death.
Here, assuming fact issues exist on the breach questions, Lara’s deposition testimony alone creates no more than surmise or suspicion that any breach of the duty to mаintain speed or keep a proper lookout was the proximate cause of the collision. As such, it is no evidence on proximate cause. The facts of this case are indistinguishable from Kahng. Because Apрellant failed to proffer any additional, competent, timely summary judgment evidence showing Lara could have avoided colliding with Ciguero, the trial court’s ruling was proper.
Issue One is overruled. The judgment of the trial court is affirmed.
Larsen, Senior Judge Sitting by Assignment
Notes
. Aftеr the summary judgment hearing in this cause but before rendition, Appellant filed police reports with the trial court. Those reports indicate that a dashcam video taken by CBP shows that Lara appears to apply his brakes and swerve left before hitting Ricar-dez. The record also shows that Appellant had difficulty obtaining the actual dashcam video from CBP. Based on the position of the body, an investigator calculated that Ricar-dez’s body traveled at between 49 to 58 miles-per-hour when struck, although based on other variables, Lara’s vehicle could have been traveling over 60 miles-per-hour, which was the posted speed limit on the highway.
"[A] trial court is not required to consider late-filed summary judgment evidence but may do so as long as the court affirmatively indicates in the record that it accepted or considered the evidence.”
Heartland Holdings, Inc. v. U.S. Trust Co. of Tex., N.A.,