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Risner v. McDonald's Corporation6/8/2000
Jamie Risner appeals from a summary judgment that she take nothing in her personal injury suit against McDonald's Corporation, McDonald's Restaurants of Texas, Inc., Danrose Management Co., Danrose Corporation, and Tina Dunham. She initially presents three points of error in which she contends that the trial court erred in granting the appellees' motions for summary judgment. Following oral argument, the court granted Risner leave to file a supplemental brief with additional points of error. In those two additional points of error, Risner urges that the trial court abused its discretion by failing to grant her motion for continuance and by overruling her motion for new trial.
We affirm because the trial court did not err in granting the appellees' motions for summary judgment, nor did it abuse its discretion by failing to grant Risner's motion for continuance nor by overruling her motion for new trial.
Risner contends in point of error one that the trial court erred in granting summary judgment because there is a genuine issue of material fact regarding whether defendants could be considered owners or occupiers of the restaurant where she was injured. In her first amended petition, Risner contends that she was injured when an employee of a McDonald's restaurant sprayed what she believed to be pepper mace inside the restaurant where she was attending a birthday party.
The appellees McDonald's Corporation, McDonald's Restaurants of Texas, Inc., and Danrose Management Company filed a motion for summary judgment on the basis that none of them was the owner or occupier of the premises at the time of Risner's injury. They supported their motion with affidavits from Peter L. Shaefer and Daniel F. Casey. Shaefer is a corporate attorney for McDonald's Corporation and McDonald's Restaurants of Texas, Inc. He indicated in his affidavit that neither of these two corporations owned the restaurant; operated the restaurant; participated in its management; had the right to hire, discharge, or discipline employees of the restaurant; paid for the utilities at the restaurant; sold any product at the restaurant or sold any product to the restaurant; or had the right to control the day-to-day activities necessary to carrying on the business of the restaurant. Daniel F. Casey, president of Danrose Corporation and the Danrose Management Company, swore that the Danrose Corporation was the assignee of the franchise for the restaurant in question, but that Danrose Management Company had never owned any interest in the restaurant.
In Risner's response to the motion for summary judgment, she indicates that there is a genuine issue of material fact as to who owned the McDonald's at the time of her injury. As evidence of the appellees' ownership, she relies upon the franchise agreements, answers to an interrogatory, a franchise letter agreement, and a bill of sale and assignment.
In reviewing a motion for summary judgment, other than a no-evidence motion, we must consider the following standards: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. See Nixon v. Mr. Property Management, Inc., 690 S.W.2d 546, 548-49 (Tex. 1985).
A premises owner may be liable for two types of negligence in failing to keep its premises safe: (1) that arising from a premises defect; and (2) that arising from an ac
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