TANDY JOHNSON, Appellant v. CAROLYN BRADFORD AND METZGER DAIRIES, Appellee

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Laws-info.com » Cases » Texas » 5th District Court of Appeals » 1989 » TANDY JOHNSON, Appellant v. CAROLYN BRADFORD AND METZGER DAIRIES, Appellee

State: Texas

Court: Texas Northern District Court

Docket No: 05-89-00361-CV

Case Date: 11/28/1989

Plaintiff: TANDY JOHNSON, Appellant

Defendant: CAROLYN BRADFORD AND METZGER DAIRIES, Appellee

Preview:TANDY JOHNSON, Appellant v. CAROLYN BRADFORD AND METZGER DAIRIES, Appellee
Reversed and Remanded and Opinion filed November 28, 1989. S In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-89-00361-CV ............................ TANDY JOHNSON, Appellant V. CAROLYN BRADFORD AND METZGER DAIRIES, Appellee ................................................................. On Appeal from the 14th District Court Dallas County, Texas Trial Court Cause No. 88-3088-A ................................................................. OPINION Before Justices McClung, Thomas and Whittington Opinion By Justice McClung Tandy Johnson appeals from a summary judgment granted in favor of Carolyn Bradford and Metzger Dairies, Inc.. Johnson filed suit to recover damages for the injuries she sustained from a fall that occurred at a Mr. M Food Store. The store was occupied and operated by Metzger Dairies and the premises were owned by Bradford. Bradford and Metzger both filed motions for summary judgment which were granted. Johnson raises five points of error, all of which allege that the summary judgments should be reversed because there are fact issues to be resolved. We agree and therefore reverse the judgment of the trial court and remand the case to the trial court. On March 11, at approximately 7:30 p.m., while exiting a Mr. M Food Store, Johnson tripped or stumbled on something in the doorway and fell fracturing her ankle and sustaining various other injuries. In her petition Johnson alleged that Metzger and Bradford were negligent in maintaining the premises and that such negligence was the proximate cause of her injuries. Johnson claimed that the walk way in front of the store was broken and uneven. She also claimed that the lack of a door mat at the entrance caused the floor to become slick due to a recent rain. Because of the aforementioned, Metzger and Bradford failed to exercise the degree of care which an ordinary prudent person would exercise under the same or similar circumstances to make the premises reasonably safe. Attached to Johnson's response to the summary judgment motion was a series of pictures, taken shortly after the accident of the Mr. M Store. These pictures reflect breaks and cracks in the sidewalk at the entrance to the store. In their motions for summary judgment, both Metzger and Bradford asserted that they were entitled to summary judgment based on Johnson's deposition testimony which was as follows: Q Describe for me how you fell or how you allege you fell? A Q A All I knew is I tripped or stumbled, or whatever. Do you know what you tripped or stumbled over? No.

file:///C|/TX/Folder%2002/05-89-00361-cv-6.html[7/20/2013 1:56:29 AM]

Q

What are alleging caused you to fall?

A I don't know. Johnson also testified that it was not raining at the time of the accident nor had it rained prior to the accident. She further stated that she did not see any water or slippery substance on the floor or concrete. When specifically asked whether the sidewalk caused her to fall she replied she did not know. Also attached to the motion for summary judgment was the affidavit of Bradford who stated that she visited and inspected the premises within two weeks prior to the accident. She did not observe any condition which would cause someone to fall, nor did she observe anything that was hazardous or dangerous to anyone using the walkway. The standards for reviewing a motion for summary judgment are well established. As mandated by the Supreme Court of Texas, they are: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). It is not the purpose of the summary judgment rule to provide either a trial by deposition or a trial by affidavit, but rather to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact. Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962). If it is necessary for the trial court to resolve factual issues, then the summary judgment rendered is neither authorized by the summary judgment procedure nor proper. See Smith v. Bolin, 153 Tex. 486, 489, 271 S.W.2d 93, 94 (1954); Tex. R. Civ. P. 166a(c). The summary judgment procedure is designed to eliminate patently unmeritorious claims and untenable defenses when there is no genuine issue of material fact; therefore, it is unavailable for the adjudication of the merits of any material issue of fact. See In re Estate of Price v. State Nat'l Bank, 375 S.W.2d 900, 904 (Tex. 1964). The movant must establish his entitlement to a summary judgment of the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). In the present case, the parties do not dispute the material facts, but they do disagree on whether the facts negate a finding of breach of a duty and proximate cause as a matter of law. In order to hold a defendant liable for negligence, the plaintiff must prove the: (1) existence of a duty on the part of one party to another; (2) breach of that duty; and (3) damages proximately caused by the breach of the duty. Lucas v. Texas Industries, Inc., 696 S.W.2d 372, 376 (Tex. 1984). As a business owner, Bradford owes a business invitee such as Johnson the duty to keep the premises in a reasonably safe condition and to inspect the premises to discover any latent defects and to make safe any defects or give adequate warnings. H.E.B. Food Stores, Inc. v. Flores, 661 S.W.2d 297, 299 (Tex. App.--Corpus Christi 1983, writ dism'd). Although Bradford maintains in her affidavit that she had inspected the premises two weeks prior to Johnson's accident and found nothing that would cause anyone to fall, it still remains a question of fact for the jury to decide whether a hazard did exist regardless of the inspection. The opinion stated by the owner of the building as to the condition of the premises does not establish as a matter of law the issue of whether a hazardous condition existed. As to the issue of proximate cause, Bradford and Metzger argue that Johnson has offered no proof that either of them were the proximate cause of her injuries. Because proximate causation is inherently a factual issue, and because it is a contested issue in most summary judgment proceedings, summary judgment is not well adapted to the disposition of negligence cases. Taylor v. Southwestern Bell Tel. Co., 483 S.W.2d 330, 332 (Tex. Civ. App.--El Paso 1972, no writ). This general rule, that negligence issues are not to be summarily adjudicated does not apply "when the showing upon the motion establishes undisputed facts which would compel all reasonable men, exercising sound and impartial judgment, to draw inferences and conclusions which would lead only to a verdict for the moving party." 4 R. McDONALD, Texas Civil Practice in District and County Courts

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