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Frazier v. City of Dallas5/24/2000
Billy Frazier appeals the summary judgment granted in favor of the City of Dallas. Appellant brings three issues asserting the trial court erred in determining that flood waters were not a special defect of which the City had constructive knowledge and a duty to warn appellant. We resolve appellant's issues against him and affirm the trial court's judgment.
FACTUAL BACKGROUND
On the evening of May 5, 1995, Dallas endured a massive thunderstorm, replete with widespread flash flooding and hail. The flash flooding encompassed virtually all areas of Dallas. Appellant was a passenger in a vehicle attempting to cross the bridge over Cedar Creek at Beckley Avenue during the thunderstorm. As the car attempted to cross the bridge, water flowing over the bridge swept the car into the creek below. Appellant survived, but the other four passengers drowned. No signs, warning devices, or barricades were present to alert motorists that the bridge would flood.
Appellant sued the City for premises liability for not warning of the danger of the flood waters and for negligence in rescuing appellant. The City moved for summary judgment under Texas Rule of Civil Procedure 166a(c) and (i) on the grounds it proved its entitlement to sovereign immunity as a matter of law and that appellant failed to present summary judgment evidence raising a fact question concerning the City's liability under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. ยง 101.021 (Vernon 1997). The trial court granted the City's motion for summary judgment.
SUMMARY JUDGMENT
In his three issues, appellant asserts the trial court erred in granting the City's motion for summary judgment. The function of a summary judgment is not to deprive a litigant of its right to a full hearing on the merits of any real issue of fact but is to eliminate patently unmeritorious claims and untenable defenses. See Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). A no-evidence motion for summary judgment is essentially a pretrial motion for instructed verdict, and we apply the same standard of review. See Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App._San Antonio 1998, pet. denied); see also General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832-33 (Tex. App._Dallas 2000, no pet.); cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (federal summary-judgment rule mirrors the standard for instructed verdict). We consider all the evidence in the light most favorable to the adverse party, disregarding all contrary evidence and inferences. See Sibai v. Wal Mart Stores, Inc., 986 S.W.2d 702, 705 (Tex. App._Dallas 1999, no pet.); Moore, 981 S.W.2d at 269. A no-evidence summary judgment is improper if the adverse party has produced more than a scintilla of probative evidence raising a genuine issue of material fact on each challenged element of a claim or defense. See Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex. App._Amarillo 1999, pet. denied); Moore, 981 S.W.2d at 269. Evidence that "is so weak as to do no more than create a mere surmise or suspicion" of a fact is legally insufficient and constitutes no evidence. See Moore, 981 S.W.2d at 269 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). "More than a scintilla of evidence exists when the evidence 'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.' " Moore, 981 S.W.2d at 269 (quoting Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
At trial, appellant alleged various theories for the City's liability, but on appeal, appellant argues only a single theory:
that the
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