Appeals Court Affirms Summary Judgment in Premises Liability Case
Jun 28, 2023
The Fifth Court of Appeals affirmed the trial court’s no-evidence summary judgment and further found no error in the trial court’s refusal to consider Plaintiff’s late-filed evidence. Partners Cassie Dallas and Jessica Childs and associate Samantha McCoy represented the defendant Classic BMW, a car dealership.
Motion for Summary Judgment Granted by Trial Court
Plaintiff claims she slipped and fell on a puddle of water in the service bay at the car dealership Classic BMW. After the fall, Plaintiff refused medical attention and went to work. She later claimed the fall injured her knee, which required surgical intervention.
Plaintiff sued Classic BMW for premises liability and negligent activity, alleging that Classic BMW had actual or constructive knowledge of the water on the floor and that it breached its duty to her as an invitee by failing to exercise reasonable care to reduce or eliminate the risk posed by the puddle. After adequate time for discovery, Classic BMW filed a traditional and no-evidence motion for summary judgment.
Classic BMW sought summary judgment on no-evidence grounds, arguing that Plaintiff had no evidence to support any element of her premises liability claims or any breach of any duty of care. Classic BMW also sought summary judgment on traditional grounds, arguing that Plaintiff’s claim sounded only in premises liability, not in negligence. In her response, Plaintiff attempted to rely on her own testimony and a photograph she took of the service bay months after the incident. The trial court granted Classic BMW’s motion for summary judgment, but before the order was signed, Plaintiff moved for leave to late file additional portions of testimony and surveillance footage. The trial court denied the motion for leave and signed the order in favor of Classic BMW.
Appeals Court Finds No Trial Court Error
The issue for the Fifth Court of Appeals was whether the trial court erred in its granting of Classic BMW’s motion for summary judgment and the denial of Plaintiff’s motion for leave to late file evidence.
To defeat a no-evidence motion, the non-movant must produce evidence sufficient to raise a genuine fact issue as to each challenged element. This requires that the non-movant specifically identify the evidence it seeks to have the trial court consider and explain why that evidence demonstrates the existence of a fact issue. The trial court is not required to search through the record and determine on its own whether a fact issue exists without specific guidance from the non-movant. With regard to whether the trial court should grant a motion to late-file a summary judgment response, good cause for failing to timely respond is required, as well as proof that allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment.
The appellate court stated that Plaintiff’s inadequate response to Classic BMW’s no-evidence motion was dispositive as Plaintiff had the burden of pointing the trial court to the specific summary judgment evidence and explaining why that evidence raised a fact issue. Because Plaintiff failed to point the trial court to more than a scintilla of summary judgment evidence suggesting that Classic failed to exercise reasonable care, the court could not conclude that the trial court erred by granting Classic’s no-evidence motion for summary judgment. With regard to Plaintiff’s claims that the trial court erred by denying her leave to late-file summary judgment evidence, because Plaintiff provided neither affidavit nor other evidence explaining why she failed to timely file the evidence, the trial court did not abuse its discretion by rejecting her bare assertion that the failure was unintentional.
The case is Azita Nazary v. Classic BMW, Cause No. 05-21-01058-CV in the Court of Appeals Fifth District of Texas at Dallas, on appeal from the 401st Judicial District Court (trial court cause No. 401-02809-2020). The mandate was issued, which affirms the trial court ruling and dismisses the case.