# Osvanis Lozada & Tels, Inc. v. Posada Supreme Court of Texas, No. 23-1015 **Osvanis Lozada & Tels, Inc. v. Posada, No. 23-1015 (Tex. June 20, 2025). Holding: Posada failed to produce more than a scintilla of evidence of breach for either negligence or negligence per se, so the summary judgment for Lozada and TELS is reinstated.** Practice areas: personal injury, civil procedure ## Key issues - A plaintiff who produced only the truck driver's own deposition testimony and two photographs failed to raise more than a scintilla of evidence that the driver breached his duty of care when a tire suddenly lost air and his tractor-trailer jackknifed across two interstate lanes, because an accident's occurrence is not itself evidence of negligence and no evidence showed what a prudent driver would have done. - Summary judgment may rest on the uncontroverted testimony of an interested witness the nonmovant himself offered, and the plaintiff, not the defendant, bears the burden to prove an accident was not "unavoidable" or the conduct "unexcused," so the defendant properly used a no-evidence motion. ## Factual History Cesar Posada crashed his tractor-trailer into Osvanis Lozada's tractor-trailer, which was jackknifed across both lanes of Interstate 10 in foggy conditions. Lozada, a driver for TELS, Inc., testified he was traveling in the left lane about 72 miles per hour, under the speed limit, when his new right front tire separated from the rim and lost air very fast, pulling him to the right and causing the truck to jackknife before Posada, who was traveling in the left lane, hit him (Opinion, PDF pp. 2-3, 6-7). ## Procedural History Posada sued Lozada in El Paso County for negligence and negligence per se and TELS for vicarious liability. After discovery Lozada and TELS filed no-evidence motions for summary judgment on breach and proximate cause; Posada responded with excerpts of Lozada's deposition and two photographs, and the trial court granted the motions. A divided Eighth Court of Appeals reversed, holding a jury could find Lozada breached his duty because his truck blocked both lanes (2023 WL 5671449). The Court decided the petition per curiam without oral argument (Opinion, PDF pp. 2-4, 13). ## Issues Presented Whether Posada produced more than a scintilla of evidence that Lozada breached his duty of care or caused the collision (Opinion, PDF pp. 1, 5). ## Legal Arguments **Lozada and TELS (Petitioners):** there is no evidence Lozada acted negligently in responding to a sudden tire failure. **Posada (Respondent):** Lozada's testimony and the photographs raise fact issues, credibility is for the jury, and Lozada had to file a traditional motion because he offered an explanation for his conduct (Opinion, PDF pp. 3, 10-11). ## Stated Reasons the Court Should Take the Case Not applicable to the Court's decision; the opinion does not recite the petition's cert-worthiness arguments. ## Practice Area Tags personal-injury, civil-procedure ## Procedural Posture/Vehicle Petition for review from the Eighth Court of Appeals after a no-evidence summary judgment; decided per curiam without oral argument under Rules 59.1 and 60.2(c) (Opinion, PDF pp. 1, 13). ## Amicus Involvement None noted ## Holding Posada failed to produce more than a scintilla of evidence of breach for either negligence or negligence per se, so the summary judgment for Lozada and TELS is reinstated (Opinion, PDF pp. 7-9, 13). ## Standard of Review A no-evidence motion is sustained when there is a complete absence of evidence of a vital fact or no more than a scintilla, viewing the evidence in the light most favorable to the nonmovant (Opinion, PDF pp. 3, 5). ## Court's Reasoning Lozada owed a common-law duty of reasonable care and statutory duties concerning speed and stopping on the roadway, but the record showed him driving safely under the limit when his tire rapidly and unexpectedly lost air, and no evidence suggested he reacted negligently, what speed would have been prudent, or that he should have moved the truck before Posada hit it. Res ipsa loquitur applies only rarely and Posada conceded it was not at issue; Restatement commentary confirms that a tire blowout alone does not show negligence. Rule 166a(c) permits summary judgment on uncontroverted interested-witness testimony that could have been readily controverted, and Posada could have offered photographs, other witnesses or an expert. The burden of proving no unavoidable accident or excuse is the plaintiff's, so a no-evidence motion was proper, and because Lozada was not negligent TELS is not vicariously liable (Opinion, PDF pp. 5-13). ## Disposition Court of appeals' judgment reversed and trial court's judgment dismissing Posada's claims with prejudice reinstated (Opinion, PDF p. 13). ## Vote Breakdown Per curiam opinion (Opinion, PDF p. 1). --- Source: The SCOTX Report, https://scotxreport.com/cases/23-1015. 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