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HAN A
000111676
053006
CAUSE NO. GN204621
MELISSA PHILLIPS and IN THE DISTRICT COURT
JOHNNY PHILLIPS
Qt >
PLAINTIFFS
345™ JUDICIAL DISTRICT.
ue
vs.
2
2
CENTRAL PARKING SYSTEM OF
TEXAS, INC., BARTLETT HEIRS,
LTD., NELLIS DELANEY CLARK,
JOHN B. PEARSON, REPUBLIC
COMMERCIAL PROPERTIES, and
ROBERT HEMPHILL
3
DAO A 0) CO) 1
DEFENDANTS TRAVIS COUNTY, TEXAS
MOTION FOR SUMMARY JUDGMENT
AND FOR SEVERANCE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendants Barlett Heirs, Ltd., Nellis Delaney Clark, John B.
Pearson, Republic Commercial Properties, and Robert Hemphill (collectively,
“Defendants”) and files this their Motion for Summary Judgment, and would respectfully
show the Court as follows:
BACKGROUND
1. This is a personal injury case in which Plaintiffs has brought a claim of
premises liability against Defendant for an alleged accident that occurred on April 16,
2001. Ms. Phillips alleges that she slipped on the bottom step (Petition) or second step
(discovery) between the third and fourth floors of the parking garage. She alleges that
she lost her balance on “something,” though Defendants do not know what this
substance is or where it is alleged to have come from.
2. Defendants move for summary judgment on the grounds that it summary
judgment evidence affirmatively shows that it had no notice of the alleged substance in
the stairwell and that the alleged condition was not in existence long enough to provide
1a matter of law.
the present motion:
(a)
(b)
053006
notice under the law, and alternatively that there is no evidence showing such notice as
SUMMARY JUDGMENT EVIDENCE
3. Defendant relies on the following summary judgment evidence in making
Affidavit of Robert Hemphill, attached hereto as Exhibit “A” and
incorporated herein by this reference.
Certificate of Non-Appearance for Plaintiffs properly noticed
deposition, attached hereto as Exhibit “B” and incorporated herein
by this reference.
4. The above summary judgment evidence shows the following established
facts supporting summary judgment:
(1)
| (2)
(3)
The management company and Defendants had no prior notice of
the wet substance alleged to have been present by Plaintiffs at the
time of her fall (Hemphill Affidavit, 2).
Defendants have no knowledge of what this substance was, where
it supposedly came from, or when it appeared. No problem with the
stairway or this substance was reported prior to the alleged
accident (See /d.).
The stairs met code and were regularly maintained and cleaned
(Id).
5. Under these facts, Defendants are entitled to summary judgment as a
matter of law, both because the evidence affirmatively shows a lack of notice to
Defendants, and because there is no evidence to show a necessary element of the
Plaintiffs’ cause of action: notice of the alleged dangerous condition. Additionally, the
Plaintiff Melissa Phillips’ failure to appear at deposition means both that she has
presented no evidence regarding the alleged dangerous condition in this case and may
also be subject to sanctions for her refusal or failure to appear.053006
ARGUMENT AND AUTHORITIES
I.
STANDARDS
6. The summary judgment standard is well established. All evidence
favorable to the non-movant is taken as true and every reasonable inference is made in
the non-movant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-
49 (Tex.1985). However, an inference — as a matter of law — cannot be drawn from
circumstantial evidence "which gives rise to any number of inferences, none more
probable than another." E.g., Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
(Tex. 1998); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997).
7. Additionally, Rule 166a(i) of the Texas Rules of Civil Procedure allows a
litigant to move for summary judgment as to all or part of a lawsuit on the ground that
there is no evidence of one or more essential elements of a claim. Tex. R. Civ. P.
166a(i); Nicholson v. Smith, 986 S.W.2d 54 (Tex. App.—San Antonio 1999, no pet.).
Summary judgment is therefore proper where the plaintiff cannot support its case with
more than a scintilla of evidence. Nicholson, 986 S.W.2d at 57. Less than a scintilla of
evidence exists when the evidence is "so weak as to do no more than create a mere
surmise or suspicion” of a fact. E.g., Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63
(Tex.1983).
H
DEFENDANTS ENTITLED TO SUMMARY JUDGMENT
ON PREMISES LIABILITY CLAIMS
8. To recover damages in a premises fiability case, the plaintiff must prove
the following: (1) actual or constructive knowledge of some condition on the premises by
the owner/operator; (2) that the condition posed an unreasonable risk of harm; (3) that
the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and
3053006
(4) that the owner/operator's failure to use such care proximately caused the plaintiff's
injuries. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); Gonzalez, 968
S.W.2d at 936.
4. In this case, the above summary judgment evidence conclusively shows
that Defendants did not have actual or constructive knowledge of any dangerous
condition. The stairway had been used on a daily basis without any indication of trouble
prior to this accident. There was nothing to indicate that this “wet substance” was
reported to the Defendant or was present on the stairs for a long enough period of time
to provide any type of notice — either actual or constructive — to Defendants prior to this
event.
5. As importantly, there is no evidence that could support a finding against
the Defendant on this essential element of the claim. It was the Plaintiffs burden to
show that the alleged danger was present for a sufficient time to provide notice to ACO.
See, e.g., Gonzalez, 968 S.W.2d at 938. However, there is no indication that this
substance — whatever it may be — was or should have been spotted by Defendants and
no evidence that the problem (whatever it was) existed for any period of time prior to the
accident. Without this showing, Defendants are entitled to summary judgment as a
matter of law. See, e.g., Bendigo v. City of Houston, 178 S.W.3d 112, (Tex. App.—
Houston (1st Dist. 2005, n.p.h.); Gonzalez, 968 S.W.2d at 938.
Ml.
MOTION TO SEVER
6. Defendant Central Parking System of Texas, Inc., to the knowledge of the
other Defendants, has never been served and has not made any appearance in this
case. The present Defendants therefore move to sever the cause of action brought
against them from the claims made against Central Parking System of Texas, Inc. so053006
that the summary judgment in this case will become final. This will avoid unnecessary
expense and delay for all of the parties.
ACCORDINGLY, Defendants Barlett Heirs, Ltd., Nellis Delaney Clark, John B.
Pearson, Republic Commercial Properties, and Robert Hemphill respectfully pray that
the Court set this matter for hearing more than twenty-four (24) days from the service of
the present Motion and that, after hearing, the Court grant the Defendants’ Motion for
summary Judgment and Motion for Severance, as well as for such other and further
relief, either at law or in equity, as to which they are justly entitled.
Respectfully Submitted,
The Law Office of Patrick A. Groves
1501 S. MoPac Parkway
Suite A320
Austin, Texas 78746
512-328-7055
512-328-8441 Facsimile
Stan A, lhouis4
SteVen B. Loomis
State Bar No. 00793177
CERTIFICATE OF SERVICE
certify that the foregoing document was sent to all parties listed below on May
, 2006.
Melissa Phillips
Johnny Phillips
178 Ulupau Circle
Bastrop, Texas 78602
a
Maan La ED UAtr
Steven B. Loomis
Preview
HAN A 000111676 053006 CAUSE NO. GN204621 MELISSA PHILLIPS and IN THE DISTRICT COURT JOHNNY PHILLIPS Qt > PLAINTIFFS 345™ JUDICIAL DISTRICT. ue vs. 2 2 CENTRAL PARKING SYSTEM OF TEXAS, INC., BARTLETT HEIRS, LTD., NELLIS DELANEY CLARK, JOHN B. PEARSON, REPUBLIC COMMERCIAL PROPERTIES, and ROBERT HEMPHILL 3 DAO A 0) CO) 1 DEFENDANTS TRAVIS COUNTY, TEXAS MOTION FOR SUMMARY JUDGMENT AND FOR SEVERANCE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendants Barlett Heirs, Ltd., Nellis Delaney Clark, John B. Pearson, Republic Commercial Properties, and Robert Hemphill (collectively, “Defendants”) and files this their Motion for Summary Judgment, and would respectfully show the Court as follows: BACKGROUND 1. This is a personal injury case in which Plaintiffs has brought a claim of premises liability against Defendant for an alleged accident that occurred on April 16, 2001. Ms. Phillips alleges that she slipped on the bottom step (Petition) or second step (discovery) between the third and fourth floors of the parking garage. She alleges that she lost her balance on “something,” though Defendants do not know what this substance is or where it is alleged to have come from. 2. Defendants move for summary judgment on the grounds that it summary judgment evidence affirmatively shows that it had no notice of the alleged substance in the stairwell and that the alleged condition was not in existence long enough to provide 1a matter of law. the present motion: (a) (b) 053006 notice under the law, and alternatively that there is no evidence showing such notice as SUMMARY JUDGMENT EVIDENCE 3. Defendant relies on the following summary judgment evidence in making Affidavit of Robert Hemphill, attached hereto as Exhibit “A” and incorporated herein by this reference. Certificate of Non-Appearance for Plaintiffs properly noticed deposition, attached hereto as Exhibit “B” and incorporated herein by this reference. 4. The above summary judgment evidence shows the following established facts supporting summary judgment: (1) | (2) (3) The management company and Defendants had no prior notice of the wet substance alleged to have been present by Plaintiffs at the time of her fall (Hemphill Affidavit, 2). Defendants have no knowledge of what this substance was, where it supposedly came from, or when it appeared. No problem with the stairway or this substance was reported prior to the alleged accident (See /d.). The stairs met code and were regularly maintained and cleaned (Id). 5. Under these facts, Defendants are entitled to summary judgment as a matter of law, both because the evidence affirmatively shows a lack of notice to Defendants, and because there is no evidence to show a necessary element of the Plaintiffs’ cause of action: notice of the alleged dangerous condition. Additionally, the Plaintiff Melissa Phillips’ failure to appear at deposition means both that she has presented no evidence regarding the alleged dangerous condition in this case and may also be subject to sanctions for her refusal or failure to appear.053006 ARGUMENT AND AUTHORITIES I. STANDARDS 6. The summary judgment standard is well established. All evidence favorable to the non-movant is taken as true and every reasonable inference is made in the non-movant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548- 49 (Tex.1985). However, an inference — as a matter of law — cannot be drawn from circumstantial evidence "which gives rise to any number of inferences, none more probable than another." E.g., Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). 7. Additionally, Rule 166a(i) of the Texas Rules of Civil Procedure allows a litigant to move for summary judgment as to all or part of a lawsuit on the ground that there is no evidence of one or more essential elements of a claim. Tex. R. Civ. P. 166a(i); Nicholson v. Smith, 986 S.W.2d 54 (Tex. App.—San Antonio 1999, no pet.). Summary judgment is therefore proper where the plaintiff cannot support its case with more than a scintilla of evidence. Nicholson, 986 S.W.2d at 57. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion” of a fact. E.g., Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). H DEFENDANTS ENTITLED TO SUMMARY JUDGMENT ON PREMISES LIABILITY CLAIMS 8. To recover damages in a premises fiability case, the plaintiff must prove the following: (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) that the condition posed an unreasonable risk of harm; (3) that the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and 3053006 (4) that the owner/operator's failure to use such care proximately caused the plaintiff's injuries. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); Gonzalez, 968 S.W.2d at 936. 4. In this case, the above summary judgment evidence conclusively shows that Defendants did not have actual or constructive knowledge of any dangerous condition. The stairway had been used on a daily basis without any indication of trouble prior to this accident. There was nothing to indicate that this “wet substance” was reported to the Defendant or was present on the stairs for a long enough period of time to provide any type of notice — either actual or constructive — to Defendants prior to this event. 5. As importantly, there is no evidence that could support a finding against the Defendant on this essential element of the claim. It was the Plaintiffs burden to show that the alleged danger was present for a sufficient time to provide notice to ACO. See, e.g., Gonzalez, 968 S.W.2d at 938. However, there is no indication that this substance — whatever it may be — was or should have been spotted by Defendants and no evidence that the problem (whatever it was) existed for any period of time prior to the accident. Without this showing, Defendants are entitled to summary judgment as a matter of law. See, e.g., Bendigo v. City of Houston, 178 S.W.3d 112, (Tex. App.— Houston (1st Dist. 2005, n.p.h.); Gonzalez, 968 S.W.2d at 938. Ml. MOTION TO SEVER 6. Defendant Central Parking System of Texas, Inc., to the knowledge of the other Defendants, has never been served and has not made any appearance in this case. The present Defendants therefore move to sever the cause of action brought against them from the claims made against Central Parking System of Texas, Inc. so053006 that the summary judgment in this case will become final. This will avoid unnecessary expense and delay for all of the parties. ACCORDINGLY, Defendants Barlett Heirs, Ltd., Nellis Delaney Clark, John B. Pearson, Republic Commercial Properties, and Robert Hemphill respectfully pray that the Court set this matter for hearing more than twenty-four (24) days from the service of the present Motion and that, after hearing, the Court grant the Defendants’ Motion for summary Judgment and Motion for Severance, as well as for such other and further relief, either at law or in equity, as to which they are justly entitled. Respectfully Submitted, The Law Office of Patrick A. Groves 1501 S. MoPac Parkway Suite A320 Austin, Texas 78746 512-328-7055 512-328-8441 Facsimile Stan A, lhouis4 SteVen B. Loomis State Bar No. 00793177 CERTIFICATE OF SERVICE certify that the foregoing document was sent to all parties listed below on May , 2006. Melissa Phillips Johnny Phillips 178 Ulupau Circle Bastrop, Texas 78602 a Maan La ED UAtr Steven B. Loomis