LMB, LTD. v. ROSA MARIA MORENO, ET AL. (Other)

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State: Texas

Court: Supreme Court

Docket No: 05-0764

Case Date: 08/31/2006

Judge: argument, we reverse the court of appeals judgment and render judgment that the

Plaintiff: LMB, LTD.

Defendant: ROSA MARIA MORENO, ET AL. (Other)

Preview:LMB, LTD. v. ROSA MARIA MORENO, ET AL.
(Other)
IN THE SUPREME COURT OF TEXAS
No. 05-0764
LMB, Ltd., Petitioner,
v.
Rosa Maria Moreno, Jose M. Moreno, Maria J. Vela,
Jorge Luis Moreno, Mary A. Garcia, Ernestina Moreno,
and Elisa Figueroa, Individually, as the Surviving Children of
Ernestina Moreno, Deceased, Entitled to Recover Under the
Wrongful Death Statute and as Representative of the Estate of Ernestina Moreno, Deceased, Respondents
On Petition for Review from the
Court of Appeals for the Thirteenth District of Texas
PER CURIAM
The issue in this premises liability case is whether the plaintiffs presented any evidence of proximate cause in response
to the defendant s summary judgment motion under Texas Rule of Civil Procedure 166a(i). The trial court concluded
they did not and granted summary judgment. The court of appeals reversed. We hold that the trial court properly
granted summary judgment. Accordingly, we reverse the court of appeals judgment and render judgment that the
respondents take nothing.
Ernestina Moreno was struck by a car when she walked out from between two vehicles in a parking lot owned by
LMB, Ltd. Ernestina, who was suffering from cancer at the time, sustained a number of injuries in the accident. When
she died approximately one year later, her spouse, children, and the representative of her estate ( the Morenos )
brought suit against LMB and others. The Morenos alleged LMB was negligent in failing to inspect for and correct
premises defects which caused the accident and Ernestina Moreno s death.
LMB moved for summary judgment on the ground that there was no evidence it proximately caused Ernestina Moreno
s injuries or her death. See Tex. R. Civ. P. 166a(i). The Morenos response to the motion asserted that there were three
issues of material fact: (1) whether the premises were kept in reasonably safe condition; (2) whether LMB adequately
and reasonably inspected the premises to discover latent defects; and (3) whether, upon discovering defects in the
premises, LMB made the premises safe or gave adequate warning of the defects. In support of their response to the
summary judgment motion, the Morenos attached an affidavit from Dr. Gumaro Garza, Ernestina Moreno s treating
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physician, medical records, and a police accident report. In his affidavit, Dr. Garza stated that [i]n reasonable medical
probability, the death of Ernestina Moreno resulted from her weakened condition caused by the accident in question.
Therefore, in my opinion, the conduct of [LMB] substantially caused Ernestina Moreno s injuries and death. The
medical records detailed her treatments for both injuries from the accident and cancer. The investigator s narrative
section of the accident report noted that Ernestina Moreno walked from between two parked cars and was struck by a
driver who was blinded by the sun and who was cleaning his windshield with the wipers when he hit her. The factors
and conditions noted as contributing to the accident were (1) the driver who struck Ernestina Moreno had impaired
visibility, and (2) Ernestina Moreno failed to yield [right of way] to vehicle.
The trial court granted LMB s motion for summary judgment. By a divided opinion, the Thirteenth Court of Appeals
reversed. The court of appeals concluded that Dr. Garza s affidavit was sufficient to raise a question of fact as to
causation. ___ S.W.3d ___. The court of appeals held that Dr. Garza s affidavit explained that the injuries sustained as
a result of the accident led to Moreno s death, and concluded that his affidavit was not conclusory. Id. LMB maintains
that the court of appeals erred because regardless of Dr. Garza s opinion that injuries from the accident were causally
related to Ernestina Moreno s death, the Morenos presented no evidence that an act or omission of LMB was a
proximate cause of the accident itself. We agree.
The elements of the Morenos premises liability claim against LMB are that (1) LMB had actual or constructive
knowledge of some condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) LMB did not
exercise reasonable care to reduce or eliminate the unreasonable risk of harm, and (4) LMB s failure to use reasonable
care to reduce or eliminate the unreasonable risk of harm proximately caused Ernestina Moreno s injuries. See CMH
Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). The proximate cause element has two components: cause in fact
and foreseeability. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). The test for cause in fact, or but-
for causation, is whether (1) the act or omission was a substantial factor in causing the injury and (2) without the act or
omission the harm would not have occurred. Id.
A motion for summary judgment must be granted if, after adequate time for discovery, the moving party asserts that
there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have
the burden of proof at trial and the respondent produces no summary judgment evidence raising a genuine issue of
material fact on those elements. Sudan v. Sudan, ___ S.W.3d ___ (Tex. 2006); see Tex. R. Civ. P. 166a(i). LMB
challenged the existence of evidence that it proximately caused Ernestina Moreno s injuries and death. Thus, the
Morenos had the burden to produce summary judgment evidence that an accident such as that involving Ernestina
Moreno, or some similar occurrence, was a foreseeable result of a failure by LMB to use reasonable care to reduce or
eliminate an unreasonably dangerous premises condition, and that LMB s failure was a substantial factor in causing
Ernestina Moreno s injuries and death. Mere proof that Ernestina Moreno was injured in LMB s parking lot is not
proof of such proximate cause. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 52 (Tex. 2005) (holding that
summary judgment was proper when there was no evidence that any of the premises owner s acts or omissions were a
substantial factor in causing the plaintiff s injuries); Sw. Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex.
2002).
Dr. Garza s assertion in his affidavit that in my opinion, the conduct of [LMB] substantially caused Ernestina Moreno s
injuries and death does not comprise evidence that some premises condition or an act or omission of LMB was
causally related to the accident and Ernestina Moreno s resulting injuries. His statement fails to address any particular
condition of the premises, conduct of LMB, or underlying facts on which his conclusion is based. His affidavit does
not set out specific facts from which a jury could reasonably infer that LMB knew or should have known of some
unreasonably dangerous condition of the premises which was involved in the accident. Nor does his affidavit amount
to more than a bare conclusion that some unknown conduct of LMB was a substantial cause of the occurrence, or that
absent the conduct, the incident would not have occurred. In sum, the affidavit does not contain competent summary
judgment evidence of either cause-in-fact or foreseeability. See Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999);
Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298, 305 (Tex. 1962); see also McIntyre v. Ramirez, 109 S.W.3d 741, 750
(Tex. 2003).[1]
Because there was no summary judgment evidence that LMB proximately caused the incident in which Ernestina
Moreno was injured, we conclude that the court of appeals erred in reversing the trial court s grant of summary
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judgment. See Tex. R. Civ. P. 166a(i). Accordingly, we grant LMB s petition for review, and without hearing oral
argument, we reverse the court of appeals judgment and render judgment that the Morenos take nothing. Tex. R. App.
P. 59.1.
OPINION DELIVERED: August 31, 2006
[1] The Morenos do not seek to sustain the court of appeals judgment on the basis that the medical records or accident
report submitted in response to LMB s motion for summary judgment contain evidence of proximate cause.
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