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Risner v. McDonald's Corporation6/8/2000
tivity on the premises. See Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 156 (Tex. 1999). Despite this general statement concerning the liability of a premises owner, the liability of a franchisor in situations regarding negligence on the premises of a franchised restaurant appears to be limited to those franchisors that maintain control of the activity concerning which negligence is charged. See Smith v. Foodmaker, 928 S.W.2d 683, 686 (Tex. App.--Fort Worth 1996, no writ). In this case the summary judgment evidence reflects that neither McDonald's Corporation, McDonald's Restaurants of Texas, Inc., nor Danrose Management Company retained control over the activity concerning which Risner has asserted negligence. Consequently, the trial court did not err in granting their motion for summary judgment.
Risner argues that there is a material fact issue concerning liability because McDonald's Corporation and McDonald's Restaurant of Texas, Inc. are both additional insureds on their franchisee's insurance policy and because McDonald's Corporation reserves the right to terminate its franchisee's right to use the McDonald's restaurant, system, and name at the McDonald's where the injury occurred. Risner also points out that McDonald's Corporation must approve any assignee or sub-assignee to whom Danrose Corporation might wish to transfer its rights in the McDonald's where the injury occurred. Finally, Risner argues that there is a material fact issue concerning the liability of McDonald's Corporation and McDonald's Restaurants of Texas, Inc. because McDonald's Restaurants of Texas, Inc., retained ownership of certain property in connection with the restaurant where she was injured, including all real estate , leasehold improvements, utility deposits, accounts and notes receivable, vehicles, office supplies, certificates of deposit and other investment securities, prepaid expense, the in-store processor, the Texas Instruments terminals, and the time recorders. Appellant presents no authority that, assuming all of these assertions are true, they create a material fact issue as to the type of ownership with the right of control that is required for there to be liability of a franchisor for such an event occurring on the franchised premises. We hold that they do not. We overrule point of error one.
Risner asserts in points of error two and three that the trial court erred in rendering the summary judgment. These points of error appear to relate to the no-evidence motion for summary judgment filed by appellees Danrose Corporation and Tina Dunham. The motion was based on these appellees' contentions that there is no evidence that an employee of Danrose sprayed the toxic substance in the restaurant or that Danrose knew or should have known of an unreasonably dangerous condition. The motion also urged that there was no evidence to support any allegation against Dunham.
Rule 166a(i) of the Texas Rules of Civil Procedure provides that:
After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at 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 of material fact.
When such a motion is presented, the movant does not bear the burden of establishing each element of its own claim or defense. See Grant v. Southwestern Elec. Power Co., 2000 Tex. App. LEXIS 2045, p. 18 (Tex. App.--Texarkana 2000, no pet. h.). Although the non-moving party is no
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