Preview
FILED
2/26/2021 3:03 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Rhonda Burks DEPUTY
CAUSE NO. DC-20-07281
CHAD DIETZ § IN THE DISRICT COURT
Plaintif §
§
V. § 134th JUDICIAL DISTRICT
§
ANTONIO VELASQUEZ §
§
§
Defendants. § DALLAS COUNTY, TEXAS
DEFENDANT ANTONIO VELAS! ZUEZ MOTION FOR SUMMARY JUDGMENT
Now comes Antonio Velasquez, Defendant in the above entitled and numbered
cause, and les this their No-Evidence Motion for Summary Judgment pursuant to
166(a) of the Texas Rules of Civil Procedure, and in support thereof would show the
Court the following:
This No-Evidence Motion for Summary Judgment is based on the pleadings on
le herein and upon the afdavits and exhibits attached hereto and incorporated herein
by reference for all purposes.
BACKGROUND FACTS
1. On or about May 26, 2020 Plaintiff led Plaintiffs Original Petition (“
Petition”) for injuries Plaintiff allegedly sustained by receiving a tattoo allegedly done
by Antonio Velasquez, Defendant in this matter. Plaintiff has sued Defendant for
Negligence and Negligence Per Se.
2. Defendant Antonio Velasquez brings this his No-Evidence Motion for
Summary Judgment as Plaintiff has provided no evidence on elements of each of its claims
brought against Defendant; and therefore, Defendant should be granted summary judgment on
all such claims as a matter of law.
Page—1
ARGUMENTS AND AUTHORITIES SUPPORTING DEFENDANT’S NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT
3. Texas Rules of Civil Procedure 166a(i) states that:
After adequate time for discovery, a party without
presenting summary judgment evidence may move for
summaiyjudgment on the ground that there is no evidence
ofone or more essential elements ofa claim or defense on
which an adverse party would have the burden ofproofat
trial. The motion must state the elements as to which there
is no evidence. The Court must grant the motion unless the
respondent produces summary judgment evidence raising
a genuine issue ofmaterialfact.
4. To establish a claim of negligence, the Plaintiff must show : (1) the existence of a
duty; (2) a breach of that duty; and (3) damages proximately caused by the breach. See Western
Invs. v. Urena, 162 S.W.3d 547, 50 (Tex. 2005). Plaintiffs have no evidence to support elements
(1), (2), (3) and (4) against Defendant Antonio Velazquez. They have no evidence that
Defendant Antonio Velazquez owed any duty to Plaintiffs. Likewise, they have no evidence that
Defendant Antonio Velazquez breached a legal duty to Plaintiffs or that any acts or omissions of
Defendant Antonio Velazquez proximately caused Plaintiffs' damages.
Plaintiff’s claim for Negligence against Antonio Velasquez fails as a matter of law.
Page—2
5. Plaintiffs cannot prove any negligence against Antonio Velasquez because (1)
they do not have any evidence that Defendant Antonio Velasquez breached any duty to Plaintiff
concerning any health and safety protocols and (2) they do not have any expert testimony to
show that the alleged damages ie. Hepatitis was caused by any alleged acts of Defendant Antonio
Velazquez. Plaintiff cannot provide any evidence of causation because he has no expert
testimony to support the proposition. Palma v. Chibran Company, L.L.C., 327 S.W.3d 866, 871—
72 (Tex.App.—Beaumont 2010). Therefore, the Court should grant this Motion and dismiss
Plaintiffs' negligence claims against Antonio Velasquez.
Plaintiff’s claim for Negligence Per Se against Defendant Antonio Velazquez fails as a
matter of law.
6. For Plaintiffs to succeed on their claim of negligence per se against Defendant,
they must identify a statute and show: (l) Plaintiffs belong to the class of persons that a statute
was designed to protect and that their injuries were of the time the statute was designed to
prevent; (2) The statute is one for which tort liability may be imposed when violated; (3) that
Defendant violated the statute without excuse; and (4) that Defendant's acts or omissions
proximately caused the injuries and damages alleged by Plaintiffs. See Nixon v. Mr. Prop. Mgmt.
C0., 690 S.W.2d 546, 549 (Tex. 1985). Negligence per se is a common-law tort concept in
which a statute denes the standard of conduct. Thomas v. Uzoka, 290 S.W.3d 437, 444 (Tex.
App-Houston [14th Dist] 2009, pet. denied). Negligence per se is not a separate claim that
exists independently of a common-law negligence claim; rather, negligence per se is merely one
method of proving a breach of duty, a requisite element of any negligence claim. See id. at 445.
As explained by the Texas Supreme Court, "[n]egligence per se is a tort concept whereby a
legislatively imposed standard of conduct is adopted by the civil courts as dening the conduct
of a reasonably prudent person." Carter v. William Sommerville and Son, Inc., 584 S.W.2d 274,
Page—3
278 (Tex. 1979). Thus, when claiming negligence per se, the plaintiff must show that such
negligence was a proximate cause of the injury or damages sustained. Williams v. Sable, No. 14-
09-00806-CV, 2011 WL 238288, at *3 (Tex. App-Houston [14th Dist] Jan. 20, 2011, no pet.)
(mem. op.).
7. Plaintiff has no evidence to support elements (1), (2), (3), and (4) against
Defendant Antonio Velazquez. Plaintiff has identied Texas Health and Safety Code Section
146.008 as the statute which they claim Defendant Antonio Velazquez allegedly violated.
Plaintiff has no evidence to show that Plaintiff belongs to the class of persons that this Statute is
intended to protect. Likewise, Plaintiff has no evidence that Defendant Antonio Velazquez
violated the statute and violated the statute without excuse. Plaintiff also has no evidence that
Defendant Antonio Velazquez‘ acts or omissions in allegedly violating the statute proximately
caused their injuries and damages. As noted above, Plaintiff cannot prove proximate cause
because they have no expert witness to testify on the matter. Therefore, summary judgment is
proper and Plaintiffs negligence per se claim should be dismissed.
Plaintiff’s claim for Gross Negligence fails as a matter of law.
8. Defendant Antonio Velazquez also moves for no-evidence summary judgment as
to Plaintiff’s gross negligence claims. Gross negligence requires that said alleged actions on
Defendant Antonio Velazquez part be:
(1) viewed objectively from the actor‘s standpoint, the act or omission complained of
must involve an extreme degree of risk, considering the probability and magnitude of the
potential harm to others; and
Page—4
(2) the actor must have actual, subjective awareness of the risk involved, but
nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others.
Boerjan v. Rodriguez, 436 S.W.3d 307, 3 11 (Tex. 2014)
9. This requires "more than momentary thoughtlessness, inadvertence or error
ofjudgment ”Lee Lewis C0nst., Inc. v. Harrison, 70 S.W.3d 778, 791 (Tex. 2001). An act that
is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent. Reeder v.
Wood County Energy, LLC, 395 S.W.3d 789 (Tex. 2012).
10. "Under the rst, objective element, an extreme risk is not a remote possibility of
injury or even a high probability of minor harm, but rather the likelihood of serious injury to the
plaintiff." Id. This is a "signicantly higher threshold than the objective reasonable person test
for negligence." Garrett v. Patterson-UT] Drilling C0., L.P., 299 S.W.3d 91 l, 917 (Tex. App.—
Eastland 2009, pet. struck) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex.l994)).
11. "Under the subjective element, actual awareness means the defendant knew about
the peril, but its acts or omissions demonstrated that it did not care." Mobil Corp. v. Ellender,
968 S.W.2d 917, 921 (Tex.l998).
12. "Some evidence of simple negligence is not evidence of gross negligence."
Aguirre v. Vasquez, 225 S.W.3d 744, 754 (Tex. App—Houston [14th Dist.] 2007, no pet.)
(citing Lee Lewis Const., 70 S.W.3d 785).
13. Evidence of simple negligence alone is not sufcient to establish gross
"
negligence. La.-Pac. Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex. 1999); see also TEX. CIV.
PRAC. & REM. CODE § 41.003(b) (stating that the burden of proof may not be satised by
evidence of ordinary negligence). What separates ordinary negligence from gross negligence is
the defendant's state of mind; in other words, the plaintiff must show that the defendant knew
Page—5
about the peril, but his acts or omissions demonstrate that he did not care. City of Plano v.
Homoky, 294 S.W.3d 809 (Tex. App—Dallas 2009).
14. Defendant Antonio Velazquez is entitled to summary judgment on Plaintiffs'
claim for gross negligence because there is no evidence that that they even breached any duties
or health and safety protocols as claimed by Plaintiffs. Further, Plaintiffs cannot provide any
evidence that when viewed objectively, any Defendant had actual or subjective awareness of the
risk. There is also no evidence that Defendant Antonio Velazquez took any action that
was in conscious disregard to Plaintiffs' safety or well-being. Further, there is no evidence that
Defendant Antonio Velazquez took any action with actual, subjective awareness of the risk ,
but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of Plaintiffs.
As a result, there is no evidence to support an award of exemplary damages. Therefore,
summary judgment is proper on Plaintiff’s gross negligence claims against Defendant Antonio
Velazquez and on Plaintiff’s claims for exemplary damages against Defendant Antonio
Velazquez.
15. Plaintiff has alleged that they are entitled to exemplary damages. This
request for exemplary damages is founded upon Plaintiffs' gross negligence claim.
However, because there is no evidence to support one or more essential elements of their gross
negligence claim, they likewise have no evidence to support their request for exemplary
damages. Defendant Antonio Velazquez therefore requests that summary judgment be granted
on Plaintiff's request for exemplary damages.
WHEREFORE, PREMISES CONSIDERED, Defendant Antonio Velasquez now moves
the Court to set this case for hearing on this its No-Evidence Motion for Summary Judgment;
they pray further that said judgment be entered herein in favor of Defendants and against
Page-6
Plaintiff, and for such other and further relief to which Defendant may be justly entitled.
Respectfully Submitted,
/s/ Sergio E. Aleman
Sergio
State Bar No. 24027275
ALEMAN LAW FIRM, P.C.
4054 McKinney Ave., Ste. 310
Dallas, Texas 75204
(214) 373-7774 (Telephone)
(214) 764-4035 (Facsimile)
sergio@sergioealeman.com
ATTORNEY FOR DEFENDANTS
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document was served, pursuant to Rule 21a
of the Texas Rules of Civil Procedure, on all counsel of record, on the 26th day of February,
2021.
/s/ Sergio E. Aleman
Sergio E. Aleman
Page—7
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.
Sergio Aleman on behalf of Sergio Aleman
Bar No. 24027275
sergio@sergioealeman.com
Envelope ID: 50973786
Status as of 3/1/2021 9:24 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Sergio EAleman sergio@sergioealeman.com 2/26/2021 3:03:11 PM SENT
Francine Ly y@dal|ascourts.org 2/26/2021 3:03:11 PM SENT
Pete Weise pete@sergioealeman.com 2/26/2021 3:03:11 PM SENT
Associated Case Party: CHAD DIETZ
Name BarNumber Email TimestampSubmitted Status
Rocio GosewehrHernandez Rocio@SnellingslnjuryLaw.com 2/26/2021 3:03:11 PM SENT
Snellings Service Service@Snellingsinjurylaw.com 2/26/2021 3:03:11 PM SENT
Katy Strandlien katy@snellingsinjurylaw.com 2/26/2021 3:03:11 PM SENT
Associated Case Party: ANTONIO VELAZQUEZ
Name BarNumber Email TimestampSubmitted Status
Antonio Velazquez ANT0698@HOTMAIL.COM 2/26/2021 3:03:11 PM SENT
Preview
FILED 2/26/2021 3:03 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Rhonda Burks DEPUTY CAUSE NO. DC-20-07281 CHAD DIETZ § IN THE DISRICT COURT Plaintif § § V. § 134th JUDICIAL DISTRICT § ANTONIO VELASQUEZ § § § Defendants. § DALLAS COUNTY, TEXAS DEFENDANT ANTONIO VELAS! ZUEZ MOTION FOR SUMMARY JUDGMENT Now comes Antonio Velasquez, Defendant in the above entitled and numbered cause, and les this their No-Evidence Motion for Summary Judgment pursuant to 166(a) of the Texas Rules of Civil Procedure, and in support thereof would show the Court the following: This No-Evidence Motion for Summary Judgment is based on the pleadings on le herein and upon the afdavits and exhibits attached hereto and incorporated herein by reference for all purposes. BACKGROUND FACTS 1. On or about May 26, 2020 Plaintiff led Plaintiffs Original Petition (“ Petition”) for injuries Plaintiff allegedly sustained by receiving a tattoo allegedly done by Antonio Velasquez, Defendant in this matter. Plaintiff has sued Defendant for Negligence and Negligence Per Se. 2. Defendant Antonio Velasquez brings this his No-Evidence Motion for Summary Judgment as Plaintiff has provided no evidence on elements of each of its claims brought against Defendant; and therefore, Defendant should be granted summary judgment on all such claims as a matter of law. Page—1 ARGUMENTS AND AUTHORITIES SUPPORTING DEFENDANT’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT 3. Texas Rules of Civil Procedure 166a(i) states that: After adequate time for discovery, a party without presenting summary judgment evidence may move for summaiyjudgment on the ground that there is no evidence ofone or more essential elements ofa claim or defense on which an adverse party would have the burden ofproofat trial. The motion must state the elements as to which there is no evidence. The Court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue ofmaterialfact. 4. To establish a claim of negligence, the Plaintiff must show : (1) the existence of a duty; (2) a breach of that duty; and (3) damages proximately caused by the breach. See Western Invs. v. Urena, 162 S.W.3d 547, 50 (Tex. 2005). Plaintiffs have no evidence to support elements (1), (2), (3) and (4) against Defendant Antonio Velazquez. They have no evidence that Defendant Antonio Velazquez owed any duty to Plaintiffs. Likewise, they have no evidence that Defendant Antonio Velazquez breached a legal duty to Plaintiffs or that any acts or omissions of Defendant Antonio Velazquez proximately caused Plaintiffs' damages. Plaintiff’s claim for Negligence against Antonio Velasquez fails as a matter of law. Page—2 5. Plaintiffs cannot prove any negligence against Antonio Velasquez because (1) they do not have any evidence that Defendant Antonio Velasquez breached any duty to Plaintiff concerning any health and safety protocols and (2) they do not have any expert testimony to show that the alleged damages ie. Hepatitis was caused by any alleged acts of Defendant Antonio Velazquez. Plaintiff cannot provide any evidence of causation because he has no expert testimony to support the proposition. Palma v. Chibran Company, L.L.C., 327 S.W.3d 866, 871— 72 (Tex.App.—Beaumont 2010). Therefore, the Court should grant this Motion and dismiss Plaintiffs' negligence claims against Antonio Velasquez. Plaintiff’s claim for Negligence Per Se against Defendant Antonio Velazquez fails as a matter of law. 6. For Plaintiffs to succeed on their claim of negligence per se against Defendant, they must identify a statute and show: (l) Plaintiffs belong to the class of persons that a statute was designed to protect and that their injuries were of the time the statute was designed to prevent; (2) The statute is one for which tort liability may be imposed when violated; (3) that Defendant violated the statute without excuse; and (4) that Defendant's acts or omissions proximately caused the injuries and damages alleged by Plaintiffs. See Nixon v. Mr. Prop. Mgmt. C0., 690 S.W.2d 546, 549 (Tex. 1985). Negligence per se is a common-law tort concept in which a statute denes the standard of conduct. Thomas v. Uzoka, 290 S.W.3d 437, 444 (Tex. App-Houston [14th Dist] 2009, pet. denied). Negligence per se is not a separate claim that exists independently of a common-law negligence claim; rather, negligence per se is merely one method of proving a breach of duty, a requisite element of any negligence claim. See id. at 445. As explained by the Texas Supreme Court, "[n]egligence per se is a tort concept whereby a legislatively imposed standard of conduct is adopted by the civil courts as dening the conduct of a reasonably prudent person." Carter v. William Sommerville and Son, Inc., 584 S.W.2d 274, Page—3 278 (Tex. 1979). Thus, when claiming negligence per se, the plaintiff must show that such negligence was a proximate cause of the injury or damages sustained. Williams v. Sable, No. 14- 09-00806-CV, 2011 WL 238288, at *3 (Tex. App-Houston [14th Dist] Jan. 20, 2011, no pet.) (mem. op.). 7. Plaintiff has no evidence to support elements (1), (2), (3), and (4) against Defendant Antonio Velazquez. Plaintiff has identied Texas Health and Safety Code Section 146.008 as the statute which they claim Defendant Antonio Velazquez allegedly violated. Plaintiff has no evidence to show that Plaintiff belongs to the class of persons that this Statute is intended to protect. Likewise, Plaintiff has no evidence that Defendant Antonio Velazquez violated the statute and violated the statute without excuse. Plaintiff also has no evidence that Defendant Antonio Velazquez‘ acts or omissions in allegedly violating the statute proximately caused their injuries and damages. As noted above, Plaintiff cannot prove proximate cause because they have no expert witness to testify on the matter. Therefore, summary judgment is proper and Plaintiffs negligence per se claim should be dismissed. Plaintiff’s claim for Gross Negligence fails as a matter of law. 8. Defendant Antonio Velazquez also moves for no-evidence summary judgment as to Plaintiff’s gross negligence claims. Gross negligence requires that said alleged actions on Defendant Antonio Velazquez part be: (1) viewed objectively from the actor‘s standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and Page—4 (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others. Boerjan v. Rodriguez, 436 S.W.3d 307, 3 11 (Tex. 2014) 9. This requires "more than momentary thoughtlessness, inadvertence or error ofjudgment ”Lee Lewis C0nst., Inc. v. Harrison, 70 S.W.3d 778, 791 (Tex. 2001). An act that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent. Reeder v. Wood County Energy, LLC, 395 S.W.3d 789 (Tex. 2012). 10. "Under the rst, objective element, an extreme risk is not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff." Id. This is a "signicantly higher threshold than the objective reasonable person test for negligence." Garrett v. Patterson-UT] Drilling C0., L.P., 299 S.W.3d 91 l, 917 (Tex. App.— Eastland 2009, pet. struck) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex.l994)). 11. "Under the subjective element, actual awareness means the defendant knew about the peril, but its acts or omissions demonstrated that it did not care." Mobil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.l998). 12. "Some evidence of simple negligence is not evidence of gross negligence." Aguirre v. Vasquez, 225 S.W.3d 744, 754 (Tex. App—Houston [14th Dist.] 2007, no pet.) (citing Lee Lewis Const., 70 S.W.3d 785). 13. Evidence of simple negligence alone is not sufcient to establish gross " negligence. La.-Pac. Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex. 1999); see also TEX. CIV. PRAC. & REM. CODE § 41.003(b) (stating that the burden of proof may not be satised by evidence of ordinary negligence). What separates ordinary negligence from gross negligence is the defendant's state of mind; in other words, the plaintiff must show that the defendant knew Page—5 about the peril, but his acts or omissions demonstrate that he did not care. City of Plano v. Homoky, 294 S.W.3d 809 (Tex. App—Dallas 2009). 14. Defendant Antonio Velazquez is entitled to summary judgment on Plaintiffs' claim for gross negligence because there is no evidence that that they even breached any duties or health and safety protocols as claimed by Plaintiffs. Further, Plaintiffs cannot provide any evidence that when viewed objectively, any Defendant had actual or subjective awareness of the risk. There is also no evidence that Defendant Antonio Velazquez took any action that was in conscious disregard to Plaintiffs' safety or well-being. Further, there is no evidence that Defendant Antonio Velazquez took any action with actual, subjective awareness of the risk , but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of Plaintiffs. As a result, there is no evidence to support an award of exemplary damages. Therefore, summary judgment is proper on Plaintiff’s gross negligence claims against Defendant Antonio Velazquez and on Plaintiff’s claims for exemplary damages against Defendant Antonio Velazquez. 15. Plaintiff has alleged that they are entitled to exemplary damages. This request for exemplary damages is founded upon Plaintiffs' gross negligence claim. However, because there is no evidence to support one or more essential elements of their gross negligence claim, they likewise have no evidence to support their request for exemplary damages. Defendant Antonio Velazquez therefore requests that summary judgment be granted on Plaintiff's request for exemplary damages. WHEREFORE, PREMISES CONSIDERED, Defendant Antonio Velasquez now moves the Court to set this case for hearing on this its No-Evidence Motion for Summary Judgment; they pray further that said judgment be entered herein in favor of Defendants and against Page-6 Plaintiff, and for such other and further relief to which Defendant may be justly entitled. Respectfully Submitted, /s/ Sergio E. Aleman Sergio State Bar No. 24027275 ALEMAN LAW FIRM, P.C. 4054 McKinney Ave., Ste. 310 Dallas, Texas 75204 (214) 373-7774 (Telephone) (214) 764-4035 (Facsimile) sergio@sergioealeman.com ATTORNEY FOR DEFENDANTS CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served, pursuant to Rule 21a of the Texas Rules of Civil Procedure, on all counsel of record, on the 26th day of February, 2021. /s/ Sergio E. Aleman Sergio E. Aleman Page—7 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. Sergio Aleman on behalf of Sergio Aleman Bar No. 24027275 sergio@sergioealeman.com Envelope ID: 50973786 Status as of 3/1/2021 9:24 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Sergio EAleman sergio@sergioealeman.com 2/26/2021 3:03:11 PM SENT Francine Ly y@dal|ascourts.org 2/26/2021 3:03:11 PM SENT Pete Weise pete@sergioealeman.com 2/26/2021 3:03:11 PM SENT Associated Case Party: CHAD DIETZ Name BarNumber Email TimestampSubmitted Status Rocio GosewehrHernandez Rocio@SnellingslnjuryLaw.com 2/26/2021 3:03:11 PM SENT Snellings Service Service@Snellingsinjurylaw.com 2/26/2021 3:03:11 PM SENT Katy Strandlien katy@snellingsinjurylaw.com 2/26/2021 3:03:11 PM SENT Associated Case Party: ANTONIO VELAZQUEZ Name BarNumber Email TimestampSubmitted Status Antonio Velazquez ANT0698@HOTMAIL.COM 2/26/2021 3:03:11 PM SENT