Eddie Medina, Jr. v. Gloria Tate d/b/a Humble Family Skate Center and Humble Family Skate Center, Inc.Appeal from 270th District Court of Harris County (Opinion By Chief Justice Radack)

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 1st District Court of Appeals » 2013 » Eddie Medina, Jr. v. Gloria Tate d/b/a Humble Family Skate Center and Humble Family Skate Center, Inc.Appeal from 270th District Court of Harris County (Opinion By Chief Justice Radack)

State: Texas

Court: Texas Northern District Court

Docket No: 01-12-00496-CV

Case Date: 07/09/2013

Plaintiff: Eddie Medina, Jr.

Defendant: Gloria Tate d/b/a Humble Family Skate Center and Humble Family Skate Center, Inc.Appeal from 270th

Preview:Opinion issued July 9, 2013

In The

Court of Appeals
For The

First District of Texas
------------------------

NO. 01-12-00496-CV ---------------------- EDDIE MEDINA, JR., Appellant V. GLORIA TATE D/B/A HUMBLE FAMILY SKATE CENTER AND HUMBLE FAMILY SKATE CENTER, INC., Appellees

On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2011-71097

OPINION In this personal-injury case, the trial court granted summary judgment on the defendants' affirmative defense of limitations. We affirm as to Humble Family

Skate Center Inc. and reverse and remand as to Gloria Tate d/b/a Humble Family Skate Center. BACKGROUND On November 22, 2011, plaintiff/appellant Eddie Medina, Jr. sued defendants/appellees Gloria Tate d/b/a Humble Family Skate Center and Humble Family Skate Center Inc., alleging that while he was skating at defendants' skating rink "on or about November 23, 2009," he fell and was injured. Medina's petition claimed that defendants were negligent in several respects, including the maintaining of the premises in an unsafe condition and failing to warn plaintiff of the dangerous condition of the skating rink floor surface. Defendants answered, pleading a general denial and the affirmative defense of statute of limitations. On April 5, 2012, defendants filed a traditional motion for summary judgment, arguing that although plaintiff's petition alleges that he was injured at defendants' premises "on or about November 23, 2009," plaintiffs' medical records and the defendants' business records conclusively establish that the date of injury was actually November 21, 2009. Defendants' attached evidence included (1) a calendar reflecting that the skating rink was closed on Monday November 23, 2009, (2) an affidavit from defendant Gloria Tate indicating that the accident happened on Saturday, November 21, 2009, (3) emergency medical records from Memorial Hermann reflecting that plaintiff was admitted the night of November
2

21, 2009 with notes that plaintiff complained of a right-foot injury suffered while skating and discharge records from November 22, 2009 instructing plaintiff to follow up with surgeon about treatment for ankle fracture, and (4) December 2009 Ben Taub surgery records identifying the date of plaintiff's injury as November 21, 2009. Because the statute of limitations for negligence is two years, and because plaintiff did not file suit until November 22, 2011--the day after the limitations period expired on plaintiff's claim for a November 21, 2009 injury--defendants argued that plaintiff's claims were barred as a matter of law. Medina responded with three arguments. First, he argued that "fact issues regarding the actual date of limitations are abundant," i.e., (1) "prior to suit being filed, Defendant's agent repeatedly asserted November 23, 2009 as the date of loss; (2) Hospital records indicate Plaintiff was admitted approximately one hour prior to midnight on November 21, 2009; however emergency evaluations are indicated to have taken place on November 22, 2009; and (3) Plaintiff himself believed the date of loss to be November 23, 2009 in reliance on the representation of Defendants' agent." Next, he argued that defendant Tate had not conclusively negated the applicability of the out-of-state tolling statute.1 See TEX. CIV. PRAC. & REM. CODE

Download 01-12-00496-cv.pdf