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Risner v. McDonald's Corporation6/8/2000
t required to marshal its proof, it must present evidence that raises a genuine fact issue on the challenged elements. Id., p. 18-19. Because a no-evidence summary judgment is essentially a pre-trial directed verdict, we apply the same standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Id.
We must determine whether the non-movant produced any evidence of probative force to raise a fact issue on the material questions presented. Id. A no-evidence motion for summary judgment is improperly granted if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. 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. Id.
Risner refers us to interrogatory answers that show the following: (1) Luis Guevara may have inadvertently discharged a container of mace for pepper spray; (2) It is believed that Mr. Guevara and Tina Dunham were at the far end of the dining room near the drive-through when they heard, saw, or learned about the alleged occurrence; (3) At some time before the incident Guevara worked for Danrose Corporation; (4) After a customer accidentally discharged mace of pepper spray in the restaurant, the employees opened up all the doors, attempted to air out the restaurant and advised the customers; (5) Defendant's employees attempted to air out the restaurant.
There is, then, summary judgment evidence that a customer accidentally discharged mace or pepper spray in the restaurant; that appellee Dunham and an ex-employee were in the restaurant near the drive-through when they learned of the incident; that the ex-employee may have discharged the pepper spray; and that after the substance was sprayed, the employees opened up all the doors, attempted to air out the restaurant, and advised the customers. We agree with the appellees that there is no evidence that an employee of Danrose Corporation sprayed the toxic substance in the restaurant or that Danrose Corporation knew or should have known of an unreasonably dangerous condition.
Risner had pleaded that Tina Dunham was negligent in the following respects: (1) in failing to provide her with a clean and safe environment in which to dine; (2) in failing to warn the customers and/or invitees of the toxic, chemical fumes after having knowledge that the toxic spray was sprayed inside the restaurant; (3) in failing to provide proper maintenance of the restaurant and its air; (4) in failing to exercise proper and reasonable control, as a manager, over the employees and over the restaurant; (5) in failing to properly employ, supervise, and train their employees; and (6) in allowing the hazardous and toxic conditions to exist at the time, and to continue to exist for longer than reasonably necessary. We agree with the appellees that the evidence that we have related does not raise a fact issue as to any of these allegations of negligence.
Risner argues that the evidence raises an issue as to who discharged the spray and as to whether Guevara was employed by one of the appellees at the time of the spraying incident. The evidence showed that it was sprayed by a customer, possibly Guevara. The evidence shows that Guevara was employed at the restaurant at sometime prior to the incident. We consider this as no more than a scintilla of evidence that Guevara was the one who sprayed the mace or pepper spray and no evidence that he was employed at the restaurant at the time of the incident in question.
Risner contends that the evidence raises a fact issue, due to what she refers to as inconsistent answers
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