Lead Opinion
OPINION
Opinion by:
This ease stems from Appellant Laura Vasquez’s
Appellant’s sole issue on appeal is whether “[Appellees had] a legal duty to act to prevent [José] Vasquez’s death from the dangerous situation on Krueger Road that [Appellees] themselves created.” Because Laura’s pleadings failed to show a basis in law that Appellees maintained a duty (1) to repair Krueger Road or (2) to warn of a dangerous condition on Krueger Road, the trial court’s dismissal is affirmed.
Factual and Procedural Background
On August 4, 2012, while driving on Krueger Road, in La Salle County, Texas, José Vasquez died as a result of a one-vehicle rollover accident. Laura Vasquez, José Vasquez’s widow, subsequently’ sued ten entities, jointly the Appellees, who own or operate oil and gas wells in the area around Krueger Road. Laura contended Appellees created a dangerous condition by their drivers’ continuous travel on “Krueger Road at a high rate of speed, [operating]- heavy and maybe overweight vehicles on Krueger Road, and [operating] vehicles that [Appellees] knew Krueger Road could not handle.”
Appellees Legend Natural Gas III, L.P., Legend National Gas, LLC, Lewis Energy
On October 2, 2014, Laura filed her First Amended Petition asserting multiple theories of .negligence: (1) Appellees’ negligent and non-negligent use and operation of their vehicles on Krueger Road; (2) Appellees’ negligent and non-negligent operation of their businesses; and (3) Appel-lees’ gross negligence. Under the negligence theories, Laura contended Appellees created a dangerous condition for all drivers bn Krueger Road.
All parties appeared for a contested hearing on October 16, 2014. At the close of the hearing, the trial court orally granted Appellees Legend Natural Gas III, L.P., Legend National Gas, LLC, Lewis Energy Group, LP, and Lewis Petro Properties, Inc. motions to dismiss pursuant to Texas Rule of Civil Procedure 91a.
The motion to dismiss and final judgment entered on January 5, 2015, provided as follows:
It is therefore ORDERED that Defendants’ Legend Natural Gas III, LP and Legend Natural Gas, LLC, Motion to Dismiss and Defendants’ Lewis Energy Group, LP, and Lewis Petro Properties, Inc., Partial Motion to Dismiss are hereby GRANTED pursuant to Texas Rule of Civil Procedure 91a on the grounds Plaintiffs Cause of Action against these Defendants has no basis in law. It is further ORDERED that all of Plaintiffs’ claims against all remaining Defendants: Rosetta Resources Operating LP, Virtex Holdings, LLP, Virtex Operation Company, Inc., Enterprise Products Holdings LLC, Enterprise Products Company, and XTO Energy Inc., are also DISMISSED pursuant to Texas Rule of Civil Procedure 91a, on the grounds Plaintiffs Cause of Action has no basis in law.
Laura’s sole issue on appeal is whether “[Appellees had] a legal duty to act to prevent [José] Vasquez’s death from the dangerous situation on Krueger Road that [Appellees] themselves negligently created.” Accordingly, we limit our review to this question.
Texas Rule op Civil Procedure 91a
Rule 91a provides that a party may move to dismiss a cause of action on the ground that it has ho basis in law or fact. Id. “A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” Id. Evidence is not considered when a trial court rules on a Rule 91a motion. Id. R. 91a.6. To the contrary, a trial court looks only to “the pleading of the cause of action, together with any pleading exhibits.” See Tex.R. Civ. P. 91a.6 (“[T]he court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59.”).
The trial court further construes the pleadings liberally in favor of the plaintiff, looks to the pleader’s intent, -and accepts the plaintiff’s factual allegations as true; and, if needed, draws reasonable inferences from the factual allegations to determine if the cause of action has a basis in law or fact. See Tex. R. Civ. P. 91a. 1; Weizhong Zheng v. Vacation Network,
A. Standard of Review
An appellate court reviews a trial court’s ruling on a motion to dismiss de novo. See Wooley,
B. Factual Allegations
Rule 91a mandates this court take all of Laura’s factual allegations set forth in her First Amended Petition as true. See Tex. R. Civ. P. 91a. Laura’s petition focuses on the condition of Krueger Road,' a public road located in La Salle County. Laura .alleges Krueger Road was , once a safe, paved road that became dilapidated and dangerous.
The assertions contained within Laura’s First Amended Petition are set forth below:
(i) ■ [I]t takes almost 1200 trucks to bring one oil or gas well into production;
(ii) [0]ver 350 trucks are required per yéar for maintenance of an oil or gas well;
(iii) [T]he service life of roads in areas around oil or gas wells is reduced more than 30 percent per year due ' to natural gas well operations;
(iv) [Appellees knew] La Salle County could not repair Krueger Road as fast as [Appellees] destroyed it;
(v) [Appellees’] drivers continuously [drove] down Krueger Road at. a high rate of speed;
(vi) [Appellees’] operate[d] heavy and maybe overweight vehicles on • Krueger Road;
(vii) Krueger Road was once a safe, paved road for the public;
(viii) Now, Krueger Road is a dangerous, dirt road with potholes, bumps, [and] crevices;
(ix) [Appellees] knew they created a dangerous condition on Krueger . Road;
(x) [Appellees] failed to fix the road, . failed to attempt to prevent injuries, and failed to provide any warnings ■ to drivers on Krueger Road, such as José Vasquez.
Based on Laura’s factual allegations, we take as. true that Appellees’ continuous and allegedly negligent.acts created a danger
Laura asserts that her pleadings sufficiently alleged that Appellees owéd a legal duty to act. We thus turn to whether Laura’s pleadings sufficiently show a basis in law that Appellees owed a legal duty to José. See Wooley,
C. Negligence
A negligence cause of action necessarily requires a plaintiff establish the defendant had a legal duty and violated that duty. Villegas, v. Tex. Dep’t of Transp.,
The present case turns on the issue of whether Appellees owed a duty to José to repair Krueger Road or to warn of a dangerous condition on Krueger Road. See Buchanan v. Rose,
D. Arguments of the Parties
Laura argues her First Amended Petition factually supports her causes of action for negligence against the. Appellees for creating a dangerous condition. She contends the trial court erred in its implicit finding that Appellees had no legal duty to her husband. Laura infers that because La Salle County “could not repair Krueger Road as fast as [Appellees] destroyed it,” Appellees’ negligent use of the road gave rise to their, duty to repair Krueger Road or to warn drivers of its danger. She alleges that on the day of José’s accident, Appellees’ failure to .fix Krueger Road, or provide warnings of the dangerous condition on Krueger Road, resulted in the creation of a dust cloud when a Lewis Energy vehicle traveled negligently on Krueger Road in front of José.
Appellees assert, inter alia, that they have no duty to repair a public road or to warn of the condition of the public roadway where such condition was-the result of wear and tear and that such duty to repair or warn was La- Salle County’s sole responsibility. Appellees also argue they do not own or control the public road and, thus, do not have any property interest
E. Duty Owed by Private Entities in Relation to a Dangerous Condition on a Roadway
Because liability cannot be imposed in the absence of duty, whether Appellees owed José a duty is a threshold inquiry. See id. The trial court implicitly found that Appellees owed no legal duty to José when it dismissed Laura’s claims under Rule 91a. Tex. R. Civ. P. 91a. We, therefore, look to whether Laura’s pleadings established a duty on behalf of Appellees, being mindful that Laura’s factual allegations, and the reasonable inferences therefrom, must be taken as true. See Wooley,
The dispositive question is whether Ap-pellees owed a duty to either (1) repair Krueger Road or (2) warn of any danger created by a dangerous condition on Krueger Road. We address each separately.
1. Duty to Repair Roadway Damaged by Negligently Created Dangerous Condition
The petition alleged the following dangerous condition:
Every day, [Appellees] sent, and still send, numerous loaded and unloaded trucks up and down Krueger Road to operate and service the wells. [Appel-lees], knowing La Salle County could not repair Krueger Road as fast as [Appel-lees] destroyed it, created a dangerous condition for all drivers on Krueger Road, including Jose Vasquez.
The parties agree that La Salle County’s county commissioners possess general control over public roads, specifically Krueger Road, located within the county. See City of San Antonio v. City of Boerne,
Both parties point to Grapotte v. Adams,
The present case strongly resembles the facts set out in Grapotte. Like the defendant’s vehicles driving over a public sidewalk' in Grapotte, the Appellees’ employees drove then- work-related vehicles on a public road. Id. at 691-92. As in Grapotte, the subsequent degradation of that road over time, by itself, does not give rise to a duty, even if the road becomes dangerous for other users, regardless of the number of vehicles driven on the road. See id. Here,- the roadway in question was a public roadway used by the public, including-Ap-pellees-and José. Yet,-as Grapotte explains, absent an exception, the duty to repair a public road remains with the governmental entity in control of that road. Id.
Based on Laura’s allegations, we take as true the allegation that Appellees’ work-related. vehicles were - “heavy and maybe overweight’ and Appellee’s drivers traveled at a high rate of speed on Krueger Road. We also take as true that Appellees’ acts ultimately damaged the roadway; and, it was the condition of the roadway that caused the cloud, of dust resulting in José’s accident and subsequent death. Laura’s petition; however, failed to allege how the Legislature’s “granting commissioners courts general, control over the roads,” imposed on Appellees “a duty to make the roadways safe for public,travel.” City of Boerne,
Absent an allegation that La Salle County delegated its maintenance and repair functions to Appellees, or that Appellees gratuitously assumed those functions, Laura’s pleadings do not support the exisfenee of a legal duty, owed by Appellees, to maintain and repair Krueger Road. See Guerra v. Rodriguez, 239 S.W.2d- 915, 917 (Tex.Civ.App.-San Antonio 1951, no writ) (recognizing that county commissioners may delegate road repair functions); see also Fort Bend Cty. Drainage Dist. v. Sbrusch,
Having found Appellees owed no legal duty to repair Krueger Road, we next turn to whether Appellees had a duty to warn José regarding a potentially dangerous condition on Krueger Road.
2. Duty to Warn of a Dangerous Condition
In Buchanan v. Rose,
Laura correctly points to Buchanan for the general proposition that when someone acts without negligence and creates a dangerous situation, that person must give warning of the danger, Id. at 109-10. We note, however, the Buchanan Court was careful to limit the applicability of its opin
The Buchanan Court examined when ah individual “by his own acts, although without negligence on his part, creates a dangerous situation in or along a public way.” Id. In doing so, the court provided examples — each of which was a specific act performed by a defendant, i.e. the rear wheels crushed the bridge, an excavation of a street or sidewalk, or obstruction on the roadway with a vehicle or other foreign object. Id. The court opined that the roadway in question was “insufficient in strength to carry a normal load. It merely gave way as the result of the usual and legitimate use of the.road.” Id.'The Buchanan Court acknowledged there may be a moral duty to act, but there was no such duty under the law.
Appellees’ actions are no different. As the Texas Supreme Court explained in Jezek v. City of Midland,
Accordingly, for the same reasons the defendant in Buchanan was under no legal “duty to give warning of the defect of the bridge,” and the Grapotte defendant was under no legal duty to repair the sidewalk damaged by his employees’ continuous traffic over the sidewalk, Appellees were under no legal duty to provide, notice of any dangerous condition on Krueger Road. Id. at 109-10; see also Grapotte,
Because' Laura’s pleadings failed to show a basis in law that Appellees owed a legal duty to warn José of a dangerous condition on Krueger Road, the trial court did not err in dismissing Laura’s cause of action pursuant to Rule 91a. See Tex. R. Civ. P. 91a.
Conclusion
Having concluded Appellees did not owe José Vasquez a legal duty to repair Krueger Road or to warn of a dangerous condition on Krueger Road, we affirm the trial court’s order dismissing Appellant Laura Vasquez’s claims against Appellees Legend
Concurring Opinion by: Luz Elena D. Chapa, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice
Notes
. To assist in clarification of the incidents involving José Vasquez and Appellant Laura Vasquez’s claims on appeal, we refer to each individual by their first name throughout this appeal.
.Unless otherwise specified, the term “Appel-lees” is used throughout this opinion to jointly identity Legend Natural Gas III, LP; Legend Natural Gas, LLC; Lewis Energy Group, LP; Lewis Petro Properties, Inc.; Rosetta Resources Operating, LP; Virtex Holdings, LLP; Virtex Operating Company, Inc.; Enterprise Products Holdings, LLC; Enterprise Products Company; and XTO Energy, Inc.
. The cause of action against Lewis Energy, for the alleged negligent driving of one of its trucks on the dirt road, causing a cloud of dust that blinded Vasquez, was severed from the main cause of action and is not part of this appeal.
Concurrence Opinion
concurring
Laura Vasquez contended at oral argument that a Rule 91a motion was premature because additional time for discovery was necessary to develop the facts of the underlying case. Vasquez implies that had she had an opportunity to engage in additional discovery, she would have been able to plead facts to establish appellees owed a duty to repair or warn of -a dangerous condition , on a public road. Vasquez did not raise these issues in her brief and, thus, addressing them is not necessary to the disposition of the appeal. See Tex. R. App. P. 38.1(i); Tex. R. App. P. 47.1. Although I join the majority’s opinion and judgment, I write separately because these issues raise important questions about whether Vasquez could have pled additional facts in support of the alleged cause of action to establish appellees owed a duty.
Rule 91a
The legislative history and the plain language of Rule 91a assist tidal courts in determining whether a Rule 91a dismissal is appropriate or whether the claimant should have an opportunity to conduct additional discovery. In 2011, the Texas Legislature enacted section 22.004(g) of the Civil Practice & Remedies Code and required the Supreme - Court of Texas to “adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence.” Tex. Gov’t Code Ann. § 22.004(g) (West Supp.2015). The legislative history reflects an intent to provide for the “early dismissal of actions” involving causes of action that lack a. basis in law or fact. Texas House Research Organization, Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011). The purpose was “to make the civil justice system more efficient, less costly, and more accessible by reforming certain procedures in these cases and making available certain new procedures.” House Comm, on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011); Senate Comm, on State Affairs, Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011). To implement section 22.004(g), the supreme court adopted Rule 91a, which allows a party to file a motion to dismiss “within 60 days after the first pleading containing the challenged cause of action is served on the movant.” See Tex.R. Crv. P. 91a.3(a) & cmt. (2013).
Rule 91a contemplates that in response to a Rule 91a motion, a claimant may defend or amend her pleadings. See Tex.R. Crv. P. 91a.4, 91a.5. Under Rule 91a.4, a claimant may defend her pleadings by filing a response and arguing her cause of action has a basis in law and fact. Tex.R. C iv. P. 91a.4. Under Rule 91a.5, a claimant may, three days before the hearing on the motion to dismiss, amend her pleadings or nonsuit her cause of action subject to refiling a pleading that alleges sufficient facts. See R. 91a.5(a), (b); see also Timothy Patton, Motions to Dismiss Under Texas Rule 91a: Practice, Procedure & Review, 33 Rev. Litig. 469, 519-24 (2014) (describing options to respond to a Rule 91a motion). “Rule 91a does not mention discovery, much less include an automatic stay.” Id. at 558-59. The issue of “whether the non-movant has a right to discovery before the motion to dismiss is
A Rulé 91a motion is an appropriate mechanism to challenge the pleadings when the facts' pled “together with inferences reasonably drawn' from them do not entitle the claimant to the relief sought.” Tex.R. Civ. P. 91a.li When the factual allegations in the plaintiffs petition establish the plaintiff is not entitled to the relief sought as a matter of law, permitting discovery to develop other facts would undermine Rule 91a’s purposes and would not place, the plaintiff in any better of a position to allege facts entitling her to relief. The matter before us presents such a case.
Here, the Rule 91a motions filed in-the trial court were not based on 'the lack of factual allegations, but on the facts- Vasquez had alleged in her first amended petition. Appellees contended the facts Vasquez alleged, taken as true and together with reasonable inferences drawn from them, did not entitle Vasquez to-the relief she sought because, as energy companies whose employees drove on a public road to operate and service oil and gas wells, they owed no legal duty to repair ,or warn of dangerous conditions - on a public road. Vasquez suggested at oral argument that additional time for discovery would allow her to develop the facts as to how appel-lees created the dangerous condition on Krueger Road. Vasquez argued she should have the opportunity to prove whether ap-pellees’ vehicles were overweight, oversized, and speeding.
However, based on our limited scope of review, we take as true that appellees’ vehicles were indeed, overweight, oversized, and speeding. How their vehicles became so is of no relevance. We also take as true that appellees created a dangerous condition on Krueger Road. Time for additional discovery would only allow Vasquez to attempt to prove how appellees created the dangerous condition. Under the facts of this case, how appellees created the dangerous condition is of no relevance to establish.'whether 'appellees owed a legal duty to repair or warn of a dangerous. condition on a public road.
Duty to Repair and WaRn
Users of public roads have-a duty of ordinary care not to create foreseeable risks of harm to other drivers on the road. See Hatcher v. Mewbourn,
After the Rule 91a motions were filed in the trial court, Vasquez did not amend her pleadings but, instead, defended her live pleading as alleging sufficient facts to establish appellees owed a duty. See Tex.R. Giv. P. 91a.4, 91a.5. Vasquez alleged the following facts: . .
Every day, [appellees] sent, and still sends numerous loaded and unloaded trucks up and down Krueger Road in La Salle County, Texas to operate and service the wells. [Appellees], knowing LaSalle County could not repair Krueger Road as fast as [appellees] destroyed it, created a: dangerous condition for all drivers on ¡Krueger Road. Even though [appellees] created-a dangerous condition, they failed to fix the road, and/or provide any warnings to drivers on Krueger Road.
On August 4, 2012, Jose Vasquez was operating a vehicle on Krueger. Road when a cloud of dust caused him to lose sight of the road. The cloud of dust was caused by the dangerous condition of the road and the negligent driving of a Lewis Energy truck travelling immediately in front of Jose' Vasquez. Because of the. dilapidated and dangerous condition of the road, it was impossible for Jose Vasquez to . see where the road was. He drove into a ditch which caused his vehicle to flip over. Jose Vasquez died as a result of the incident.
In the “Causes of Action” section of her pleading, Vasquez further alleged:
Krueger Road was once a safe, paved road for the public. Now, Krueger Road is a dilapidated,' dangerous, dirt road with potholes, bumps, crevices and no markings left to determine the proper lanes of travel. The reason Krueger Road is so dangerous 'is because of the .[appellees’] actions. [Appellees’] drivers continually drive down Krueger Road at a high rate of speed, operate heavy and maybe overweight vehicles on Krueger Road, and. operate vehicles that [appel-lees] knew Krueger Road could not handle.
The trial court severed Vasquez’s “negligent driving” cause of action against the Lewis appellees into a new case.
Vasquez’s remaining cause of action is based on injury caused by the condition of a road, and sounds exclusively in premises liability. See Austin,
Relying on Buchanan v. Rose, Vasquez argues appellees had a “duty to do something” because they knowingly created a dangerous condition on Krueger Road.
However, a duty to repair or warn of a dangerous condition on a premises generally does not extend to those who do not own, possess, or control the premises. See Allen Keller Co. v. Foreman,
Furthermore, Buchanan is not controlling because the supreme court therein held that the defendant driver had no legal duty to warn other drivers.
Conclusion
We need not decide in this case what the “something” is, if anything, appellees had a duty to do. Vasquez argues that appellees had a duty to take water trucks up and down Krueger Road or to warn other drivers by erecting signs in the public right of way. Here, they do not. Vasquez’s cause of action sounds exclusively in premises liability under Austin. Under Allen Keller Co., a premises-liability duty to repair or warn about a dangerous condition on a public road does not extend to an individual who does not own, possess, or control the road, even if the individual created the dangerous condition. Because we must take as true Vasquez’s allegation that ap-pellees created the dangerous condition on Krueger Road, the manner in which appel-lees created the dangerous condition is not relevant to whether appellees owed a legal duty to repair or warn if appellees did not own, possess, or control Krueger Road. Permitting Vasquez to conduct additional discovery to develop facts about how ap-pellees created the .dangerous condition on Krueger Road would therefore defeat Rule 91a’s purposes and would not place Vasquez in any better of a position to allege facts that appellees owned, possessed, or controlled Krueger Road or establish her entitlement to the relief sought. ■
Rebeca C. Martinez, Justice, dissenting
I disagree that Laura’s pleadings entirely fail to assert the basis of a claim of negligence against Appellees. Laura’s pleadings contain an assertion that Appel-lees .knew they created a dangerous condition on Krueger Road, yet failed to provide any warning to other drivers,’ including José. Thus, I belieye that Laura has — for purposes of surviving a Rule 91a motion to dismiss — sufficiently alleged that, a duty was imposed on Appellees to warn fellow travelers of the dangerous condition they created by their negligent conduct on Krueger Road. Accordingly, I respectfully dissent.
“Rule 91a is unique, an animal unlike any other in its particulars.” Wooley v. Schaffer,
The determination of whether a cause of action has any basis in law is a legal question that this court reviews de novo, based purely on the allegations of the live petition' 'and any attachments thereto. Wooley,
Laura’s First Amended Petition asserted three causes of action: (1) negligent use and operation of vehicles, (2) negligent operation of business, and (3) gross negligence. As to each, Laura alleged the following facts in her petition: Appellees, as owner or operators of oil or gas wells in the area around Krueger Road in La Salle County, had knowledge of the following before they began operating-the wells: it takes almost 1,200 loaded trucks to' bring one oil or gas well into production; over 350 trucks are required per year for maintenance of an oil or gas well; and almost 1,000 trucks are needed every five years to re-fracture a well. Appellees sent numerous loaded and unloaded trucks up and down Krueger Road on a daily basis to operate and service the wells, and Appel-lees created a dangerous condition on Krueger Road because- they knew the county could not repair the road as fast as Appellees destroyed it. Even though Ap-pellees created a dangerous condition, they failed to fix the road, and/or provide any warnings to drivers on Krueger Road. On August 4, 2012, José Vasquez was operating a vehicle on Krueger Road when a cloud of dust caused him to lose sight of the road. The cloud of dust was caused by .the dangerous condition of the road and the negligent driving of a Lewis Energy truck traveling immediately in front of José. Because of the dilapidated and dangerous condition of the road, it was impossible for José to see where the road was; he drove into a ditch which caused his vehicle to flip over; He died as a result of the incident.
■ As to both her negligent use and operation of vehicles cause of action and her ■negligent operation of business cause of action, Laura asserted that “Defendants knew they created a dangerous condition and failed to fix the road, failed to attempt to prevent injuries, and failed to provide any warnings to drivers on Krueger Road, .such as José Vasquez.”
The Rúle 91a motion to dismiss asserted Laura’s negligence claims had no basis in law because Appellees owed no legal duty to José. See Tex.R. Crv. P. 91a.l; 91a.2. The trial court granted the Rule 91a motion “on the grounds Plaintiffs Cause of Action has no basis in law.” A cause of action for negligence requires three elements: a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach. See, e.g., D. Houston, Inc. v. Love,
Here, the proper question is whether the negligence causes of action, taking as true the factual allegations as pled by Laura, along with all reasonable inferences drawn from them, would entitle Laura to the relief sought. See Tex.R. Civ. P. 91a.l. I believe they do.
The Texas Supreme Court has held that: [I]f one by his own acts, although without negligence on his part, creates a dangerous situation in or along a public way and it reasonably appears that another in the lawful use of such way in the exercise of ordinary care for his own ' safety may be injured by the dangerous situation so created, the one creating the same must' give warning of the danger or be responsible for the consequences.
Buchanan v. Rose,
Turning to Laura’s pleadings, and taking the factual assertions contained therein as true, she alleges that Appellees knew Krueger Road was dangerous because their vehicles were destroying the road. As to her negligent use and operation of vehicles claim, Laura alleges that Appel-lees operated heavy and potentially overweight vehicles at a high rate of speed on a road that they knew could not handle such traffic and that they knew was being destroyed faster than the county could repair it. As to her negligent operation of business claim, she further alleges that'in addi
Because Appellees only attacked the gross negligence claim on the basis that no legal duty was owed, and I have concluded that the pleadings sufficiently allege that a duty was in fact owed by Appellees, I would hold that the gross negligence claim is likewise viable. Thus, Laura has sufficiently alleged facts that would entitle her to the relief sought, under all three causes of action asserted in her First Amended Petition. Whether the evidence later proves or negates any essential element of a cause of action, as asserted, is a question for another day. It is not this court’s role, in reviewing the granting of a Rule 91a motion, to determine prematurely the merits of an alleged cause of action, but rather to recognize the foundation of one.
Accordingly, I believe the trial court erred in granting the Rule 91a motion to dismiss in its entirety, and I would reverse the judgment of the trial court and remand the case for further proceedings.
. A “defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading” may be excepted to. See Tex. R. Civ. P. 91 (“particularity” no longer required) (enacted 1941).
. The source of Rule 78 is District and County Court Rule 3, which omitted “to enable the plaintiff to state all the facts presenting his cause of action, and such other facts as may . be required to rebut &e facts that may be stated in the original and supplemental petitions as pleaded by the defendant,” at the end of first sentence. See Tex. R. Civ. P. 78.
. The majority relies heavily on Buchanan and Grapotte v. Adams,
. Appellees do not challenge on appeal the remaining negligence elements. Nonetheless, Laura has sufficiently alleged that Appellees breached the duty owed "by negligently using and operating their vehicles on Krueger Road in such a manner as to'cause the road to become dangerous. This breach of [Appel-lees’] legal duty caused Plaintiffs’ injuries and damages.”