August Newsletter

August in Texas means that the heat of summer is still here, but we are now in the home stretch. Vacations are wrapping up, kids are returning to school, and high school football games are just around the corner. Fall is usually a busier time at the courthouse as everyone gets back to work after a summer lull, and we are gearing up for it. This August our firm also celebrated its thirty third anniversary of service to our clients, causing us to look back with appreciation and gratitude and just a bit of pride. When Doug Fletcher and Steve Springer founded the firm all those years back, it was probably hard for them to imagine a law firm with over forty lawyers in two offices serving clients around the State of Texas. We are humbled and grateful for the opportunity to serve you, our clients, and believe that our best years are ahead. 

Joke of the month: Why are lawyers always so charming? (see answer at the bottom of the newsletter)

On June 20, 2025, the Texas Supreme Court issued its opinion on Lozada v. Posada. This case involved an accident which occurred because an eighteen-wheeler had a sudden tire blowout. Specifically, Posada sued Osvanis Lozada and Lozada’s employer, TELS, Inc. due to an accident that occurred between two tractor-trailers. Posada brought negligence and negligence per se claims against Lozado and sought to hold his employer, TELS vicariously liable. Both Lozada and TELS filed no-evidence motions for summary judgment. In reviewing the motions, the Court found that a key to placing the burden on Plaintiff was the fact that Defendants pled an “unavoidable accident” in their response. 

Under Texas law, the Court will construe facts of a motion for summary judgment in the light most favorable to Posada, the nonmovant. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). Given this standard, Lozada's burden was to prove that there is no evidence of one or more essential elements of Posada’s claim. TEX. R. CIV. P. 166a(i). In this case, Lozada’s argument was that there is no evidence of either breach or proximate cause. Posada countered with evidence that Lozada was negligent in some manner.

The evidence presented by Lozada in support of his motion clearly showed that Lozada was driving safely under the speed limit when his right front tire rapidly and unexpectedly lost air. In response, Posada failed to establish that Lozada breached his duty of care. Specifically, the Supreme Court noted there are many types of accidents which commonly occur without the fault of anyone. The fact that a tire blows out…is not, in the absence of anything more, enough to permit the conclusion that there was negligence in inspecting the tire… because it is common human experience that such events all too frequently occur without such negligence. Restatement Second of Torts 328d.

In further support, the Supreme Court noted that Lozada pled an “unavoidable accident” in his answer which in turn places the burden of proof on Posada to show that his injuries were not the product of an “unavoidable accident” and that Lozada’s conduct was “unexcused.” Therefore, the Court essentially placed the burden of proof on the Plaintiff to negate an avoidance defense once it has been pled in a Defendant’s answer.

Based on this decision, it is crucial to gather information regarding any mechanical failures that contributed to the cause of the accident. As evidenced in Lozada v. Posada knowledge of an unavoidable accident can be a game-changer in getting a case dismissed.  

This month, we were proud to participate in the Texas Trucking Association Conference and spend time connecting with the trucking industry!

Our firm participated in the first ever RIMS Texas Regional Conference! A big thank you to everyone who stopped by our booth, it was a great time to connect.  

Our softball team reached the end of their season earlier this month. While the games may be done, the experiences of playing on the field together will carry through the rest of the year until next time! No matter the score, the camaraderie and spirit made every game feel like a win. Until next year! 

Joke of the month: Because they have their own appeal!