Motion for No Evidence Summary Judgment in TINA DOUGLAS vs. GOLDMARK HOSPITALITY, LLC| Trellis.Law

On December 22, 2020 a Motion,Ex Parte was filed involving a dispute between Douglas, Tina, and Goldmark Hospitality, Llc, for PROPERTY in the District Court of Dallas County.

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FILED
9/27/2021 6:58 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY

CAUSE NO. DC-20-18921

IN THE DISTRICT COURT

§§§§§
TINA DOUGLAS

V 191ST JUDICIAL DISTRICT

GOLDMARK HOSPITALITY, LLC DALLAS COUNTY, TEXAS

DEFENDANT’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

Defendant Goldmark Hospitality, LLC ﬁles this No-Evidence Motion for Summary

Judgment pursuant to Rules 166a(i) and 166a(c) of the Texas Rules of Civil Procedure and in

support thereof, would respectﬁilly show the Court as follows:

I.
INTRODUCTION AND SUMMARY OF THE ARGUMENT

In this premises liability case, the Plaintiff claims on August 29, 2019 she was injured on

the Defendant’s premises when she pulled open an entrance door and the door fell on her. The

Plaintiff asserts that she was an invitee when the incident took place. Accordingly, to prove a

premises liability claim as an invitee, a plaintiff must establish:

(l) Actual or constructive knowledge of a condition on the premises by the owner or occupier;
(2) The condition posed an unreasonable risk of harm;

(3) The owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and

(4) The owner or occupier’s failure to use such care proximately caused the plaintiff’ s injury.

See Wal—Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex. 1998); Wal—Mart Stores v. Reece,

81 S.W.3d 812 (Tex. 2002).

Defendant Goldmark is entitled to summary judgment on Plaintiff’s premises-liability

claim because Plaintiff cannot satisfy the necessary “notice” element required of a premises

liability claim. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000).

Defendant’s Motion for Summary Judgment, Pg. l
II.
SUMMARY JUDGMENT EVIDENCE

Defendant has attached the following summary judgment evidence to this motion, which

demonstrates that Plaintiff cannot satisfy the necessary “notice” element required of a premises

liability claim:

Exhibit A: Plaintiff‘s Responses to Disclosures

Exhibit B: Plaintiff’s Responses to Interrogatories

Exhibit C: Plaintiff’s Responses to Request for Admissions

Exhibit D: Plaintiff‘s Responses to Request for Production

Exhibit E: Plaintiff’s Deposition Testimony

III.
LEGAL STANDARDS
After an adequate time for discovery has passed, a party may ﬁle a no-evidence motion for

summary judgment on the grounds that there is no evidence of one or more essential elements of

a claim or defense on which an adverse party would have the burden of proof at trial. TEX.R.Civ.P.

166a(i). The rule does not require that discovery be completed —
only that adequate time has

passed prior to ﬁling the motion. Specialty Retailers v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.-

Houston, 2000). Once the movant alleges that there is no evidence to support one or more elements

of the non-movant’s cause of action, the burden shifts to the non-movant to produce more than a

scintilla of evidence on the cause(s) of action challenged. Mack Trucks v. Tomei, 206 S.W.3d 572,

582 (Tex. 2006); W. Ines, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). If the non-movant is

unable to produce more than a scintilla of evidence on the cause(s) of action challenged by the

movant, then the Court should grant the movant’s motion for summary judgment as a matter of

law. Merrell Dow Pharm, Inc. v. Havner, 953 S.W.2d 706, 7ll (Tex. 1997).

Defendant’s Motion for Summary Judgment, Pg. 2
In other words, once a party ﬁles a no-evidence motion for summary judgment, summary

judgment must be granted unless Plaintiff is able to meet his burden to produce more than a

scintilla of evidence raising a triable issue of fact on each element essential to his case. LMB, Inc.

v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).

ADEQUATE TIME FOR DISCOVERY HAS ELAPSED

Plaintiff ﬁled this lawsuit on December 22, 2020 and plead this matter under Discovery

Level 2. The Defendant ﬁled its answer and served written discovery requests on February 25,

2021. The Plaintiff responded to written discovery on March 17, 2021 and the Plaintiff was

deposed on July 14, 2021. Discovery has been ongoing for over seven months. Therefore, the

Defendant’s No-Evidence Motion for Summary Judgment is ripe for consideration. See uqua, 29 F
S.W.3d at 145 (holding that Rule 166a(i) does not require that discovery be completed for an

adequate amount of time for discovery to have passed). See also Rest. Teams Intl, Inc. v. Mg Sec.

C0rp., 95 S.W.3d 336, 340 (Tex. App-Dallas 2002) (holding that case on ﬁle for seven months

provided an adequate time for discovery); McClure v. Attebury, 20 S.W.3d 722, 729 (Tex. App.-

Amarillo 1999, no pet.) (case pending for seven months allowed an adequate time for discovery)

IV.
ARGUMENT AND AUTHORITY

Plaintiff’s premises liability claim fails as a matter of law because, after adequate time for

discovery has passed, Plaintiff lacks evidence to support the necessary “notice” elements of her

claim. To prove a premises liability claim as an invitee, a plaintiff must establish:

1. Actual or constructive knowledge of a condition on the premises by the owner or occupier;

2. The condition posed an unreasonable risk of harm;

3. The owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and

4. The owner or occupier’s failure to use such care proximately caused the plaintiff’s injury.

Defendant’s Motion for Summary Judgment, Pg. 3
See Wal—Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex. 1998); Wal—Mart Stores v. Reece,

81 S.W.3d 812 (Tex. 2002).

A premises owner or occupier’s duty to an invitee is not that of an insurer. Wal—Mart Stores,

Inc. v, Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). The Texas Supreme Court has repeatedly

stressed that “premises owners are not strictly liable for conditions that result in injury.” CMH

Homes Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000). Rather, the owner must exercise reasonable

care to protect invitees from dangerous conditions that are known or reasonably discoverable to it.

Corbin, 648 S.W.2d at 295. It follows that a premises owner is not liable for a dangerous condition

unless it knew or by reasonable inspection would have discovered the condition. Daenen, 15

S.W.3d at 102.

Plaintiff’ s burden is often difﬁcult to meet. However, the Texas Supreme Court has

explained that “[t]he fact that proof. . . is difﬁcult does not provide a plaintiff with an excuse to

avoid introducing some evidence of causation.” Gonzalez, 968 S.W.2d at 937. The Court

continued, holding that “[t]he harsh reality is that if the plaintiff cannot prove facts to support his
cause of action, there is simply no recovery. This is true not only in slip-and-fall cases, but in all

cases.” Id. at 937

The existence of actual or constructive notice of a premises defect is a threshold

requirement for a premises-liability claim. Tex. v. Williams, 940 S.W.2d 583, 584 (Tex. 1997);

Corbin, 648 S.W.2d at 296. For a premises owner or operator to have “actual knowledge” of a

condition, the owner or operator must have known that the hazard existed, but negligently failed

to cure it. Keetch, 845 S.W.2d at 264. In the absence of proof of actual knowledge, “constructive

knowledge” can be established by showing that the condition existed long enough for the owner

or occupier to have discovered it upon reasonable inspection. Daenen, 15 S.W.3d at 102-03.

Defendant’s Motion for Summary Judgment, Pg. 4
Even if an owner or occupier created a condition, a jury must still ﬁnd that the owner or

operator had either actual or constructive knowledge of the condition. Keetch, 845 S.W.2d at 265

("The fact that the owner or occupier of a premises created a condition that posed an unreasonable

risk of harm may support an inference of knowledge. However, the jury still must ﬁnd that the

owner or occupier knew or should have known of the condition")

To prove constructive notice, Texas requires “temporal” evidence of how long an allegedly

defective condition existed prior to a fall. See Wal-Mart v. Reece, 81 S.W.3d 812, 816 (Tex. 2002)

("Without some temporal evidence, there is no basis upon which the factﬁnder can reasonably

assess the opportunity the premises owner had to discover the dangerous condition"); Gonzalez,

968 S.W.2d at 936 (rendering judgment for defendant where the plaintiff could not prove macaroni

on which plaintiff fell had been on ﬂoor long enough that defendant reasonably should have

discovered it). Without evidence of actual notice or temporal evidence to establish constructive

notice, the plaintiff cannot meet his burden of proof on the “notice” element, and the defendant is

entitled to summary judgment.

While the requisite length of time can sometimes be established through circumstantial

evidence, this evidence is legally insufﬁcient if it “supports only the possibility that the dangerous

condition existed long enough to give [the defendant] a reasonable opportunity to discover it.”

Gonzalez, 968 S.W.2d at 93 7-38 (emphasis in original); see also Hammerly Oaks, Inc. v. Edwards,

958 S.W.2d 387, 392 (Tex. 1997) (meager circumstantial evidence from which equally plausible

but opposite inferences may be drawn is speculative and thus, legally insufﬁcient to support a

ﬁnding). If there is no evidence of how long the condition existed prior to his incident, the

defendant is entitled to summary judgment. Reece, 81 S.W.3d at 816.

Defendant’s Motion for Summary Judgment, Pg. 5
For purposes of a premises liability claim by an invitee, there must be some proof of how

long a hazard is there before liability can be imposed on a premises owner for failing to discovery

and rectify, or warn of, a dangerous condition. Gonzalez, 968 S.W.2d at 938

THE PLAINTIFF CANNOT SATISFY THE PRIOR NOTICE REQUIREMENT

In reviewing the summary judgment evidence in this matter, it is clear that the Plaintiff

cannot satisfy the “prior notice” element required of the premises liability claim.

The Plaintiff admits that she has no evidence to satisfy the prior notice requirement in her

responses to Request for Admissions (Exhibit “C”). She admits that she has no evidence the

Defendant or its employees had actual or constructive notice the door in question posed a

dangerous condition before the incident, or how long the door was allegedly unsecure.

The Defendant requested the Plaintiff to provide any evidence to show the Defendant had

prior notice (See Exhibits “B” and “D”). The Plaintiff responded by referring the Defendant to the

Plaintiff’s Petition and Disclosures (Exhibit “A”). Yet, there is no information in the Plaintiff’s

Petition or in her Disclosures that provides the Court with any evidence to satisfy the “prior notice”

element of her premises liability claim. The Plaintiff admits in her deposition testimony that there

was no prior notice that the entrance door on the Defendant’s premises posed an unreasonable

dangerous condition (See Exhibit “E”, Deposition Pg. 61 Lines 12 — l9 and Pg. 62 Lines 8 —
ll).
V.
CONCLUSION AND PRAYER

Under well-established Texas law, Plaintiff’s premises liability fails because Plaintiff

offers no evidence to support the requisite “notice” element of her premises claim. Because the

Plaintiff cannot satisfy each element of a premises liability claim, the Defendant is entitled to

summary judgment on this entire action.

Defendant’s Motion for Summary Judgment, Pg. 6
WHEREFORE, PREMISES CONSIDERED, Defendant pray that: (1) this Honorable

Court grant this Motion in its entirety; (2) all of Plaintiff’ s claims, causes of action and theories of

recovery against Defendant be dismissed with prejudice; (3) Plaintiff take nothing by way of her

claims against Defendant, and (4) Defendant be awarded all other and further relief, both general

and special, at law or in equity, to which they may be justly entitled.

Respectfully submitted,

Qﬁ
EUGENE”KIM
SBN: 24046210
LAW OFFICE 0F JAMES A. LAWRENCE
105 Decker Court, Suite 150
Irving, TX 75062-2211
Phone: (972) 536-1480
Fax: (855) 717-5349
Email: kimel l@nationwide.com
ATTORNEY FOR DEFENDANT

Defendant’s Motion for Summary Judgment, Pg. 7
CERTIFICATE OF SERVICE

On this date, September 27, 2021, a true and correct copy of this document was served in
accordance with Texas Rules of Civil Procedure Via E-Service/E-Mail to:

ATTORNEY FOR PLAINTIFF:
James Bauguss III
Ben Abbott & Associates, PLLC
1934 Pendleton Dr.
Garland, TX 75041

EUGENE KIM

CERTIFICATE OF CONFERENCE

Pursuant to the Local Rule 2.07, a certiﬁcate of conference is not required for dispositive motion
or motion for summary judgment. Therefore, a hearing will be required.

EUGEN KIM

Defendant’s Motion for Summary Judgment, Pg. 8
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Eugene Kim on behalf of Eugene Kim
Bar No. 24046210
kime11@nationwide.com
Envelope ID: 57645861
Status as of 9/28/2021 7:28 AM CST

Associated Case Party: GOLDMARK HOSPITALITY, LLC

Name BarNumber Email TimestampSubmitted Status
Miriam Bernitz Bernim1@nationwide.com 9/27/2021 6:58:35 PM SENT
Eugene Y.Kim kime11@nationwide.com 9/27/2021 6:58:35 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status
JAMES L BAUGUSS, |||
eService@benabbott.com 9/27/2021 6:58:35 PM SENT

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SLAUGHTER, GENA Track Judge’s New Case

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Document Filed Date

September 27, 2021

Case Filing Date

December 22, 2020

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Motion,Ex Parte: TINA DOUGLAS vs. GOLDMARK HOSPITALITY, LLC

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