 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Smylie First Interstate Bank11/16/2000
This is an appeal from the trial court's grant of summary judgment in a premises liability case. Appellant, Theodore S. Smylie, raises two issues for our review. First, whether the trial court erred in granting summary judgment in favor of appellee, First Interstate Bank, Texas ("the Bank"), because there existed some evidence of a condition that posed an unreasonable risk of harm that a premises owner of ordinary prudence would not have allowed to remain. Second, whether the trial court erred in granting summary judgment in favor of appellee, Metro National Corporation ("Metro"), because the statute of limitations was tolled when Metro was brought into the lawsuit as a third-party defendant. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 11, 1996, Smylie, a customer of the Bank, was injured when he tripped and fell on the stairs outside of the Bank. Smylie claimed he fell when the heel of his shoe became caught in a gap in the pavement. On September 16, 1997, Smylie filed suit against the Bank as the occupier of the premises. On September 8, 1998, the Bank filed a third-party action against Metro, the owner of the premises, claiming Metro was liable for Smylie's injuries. Smylie amended his petition on March 10, 1999, to include Metro as a defendant.
The Bank filed a no-evidence motion for summary judgment asserting there was no evidence that (1) a condition of the premises posed an unreasonable risk of harm, or (2) the Bank failed to use ordinary care to reduce or eliminate an unreasonable risk of harm. Metro filed a motion for summary judgment contending Smylie's claim was barred by the statute of limitations. The trial court granted both motions. This appeal followed.
THE BANK'S NO-EVIDENCE SUMMARY JUDGMENT
In a "no evidence" motion for summary judgment the movant must specify the elements of the non-movant's cause of action to which there is no evidence. See TEX. R. CIV. P. 166a(i). The burden then shifts to the non-movant to produce more than a scintilla of evidence as to the challenged elements. See id. If the non-movant is unable to meet this burden, the trial court must grant the motion. See id.
When reviewing the grant of a "no evidence" summary judgment, we review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119 (1998); Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex. App.--Houston [14th Dist.] 1999, no pet.). We apply the same legal sufficiencystandard applied in reviewing a directed verdict. See Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). "A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact." Havner, 953 S.W.2d at 711.
A trial court cannot grant a "no evidence" summary judgment if the non-movant brings forth more than a scintilla of proof to raise a genuine issue of material fact. See TEX. R. CIV. P. 166a(i); Moore, 981 S.W.2d at 26. Proof that is so weak that it only creates a mere surmise or suspicion of a fact is less than a scintilla. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). On the other hand, when the proof "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions," the non-movant has provide
Page 1 2 3 4 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|