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Lebreck v. Bank of America Texas6/22/1998
AFFIRM
On Appeal from the 14th District CourtDallas County, Texas, Trial Court Cause No. 94-12101-A
Before Justices Lagarde, Ovard, and Roach
Michael LeBreck and Marie LeBreck sued Bank of America Texas, N.A. ("BOA-Texas") for negligence and gross negligence after Michael LeBreck tripped and fell on the pedestal of a queuing rope in the bank lobby. The trial court granted summary judgment in favor of the BOA-Texas. On appeal, the LeBrecks assert in a single point of error that the trial court erred in granting summary judgment. We overrule the LeBrecks' point of error and affirm the trial court's summary judgment.
Factual and Procedural Background
BOA-Texas attached portions of Michael's deposition to its Motion for Summary Judgment as summary judgment evidence. Michael testified that on April 2, 1994 he went to the lobby at BOA-Texas to make a deposit and the following occurred:
I got my money. I turned to go out. To the right, they have like, a reviewing stand, and I realized I had too much money in my hand. I immediately did a count and realized that I had some $160 too much. So I pivoted to go back to the teller and I tripped on the pedestal of the queuing-rope. Everything was a reaction from there. I caught my foot on the rope and all the pedestals went awry in every direction. There was a loud noise. Everyone was jumping around, and I ended up on the wall, not on the floor, but caught myself near the entrance and exit just to the right of that.Based on the above allegations, the LeBrecks sued BOA-Texas for negligence in the following respects:
(1) in obstructing the lobby of the premises with queuing pedestals and ropes, even though defendants knew or should have known that in doing so defendants were creating an unreasonable risk of harm to invitees on the premises; (2) in failing to inspect the premises in order to discover the dangerous condition created by the queuing pedestals and ropes that were located directly in front of the bank teller windows; (3) in failing to correct the dangerous conditions created by the queuing pedestals and rope; (4) in failing to warn invitees that a dangerous condition existed. Additionally, the LeBrecks sued for gross negligence alleging that BOA-Texas's conduct was "willful, malicious, and with conscious disregard" to their rights. The LeBrecks alleged that as a proximate result of BOA-Texas's negligence and gross negligence, Michael suffered a disabling back injury and Marie suffered loss of consortium damages.
BOA-Texas moved for summary judgment on the ground that it had no knowledge of a condition imposing an unreasonable risk of harm and, in fact, there was no unreasonable risk of harm. Additionally, BOA-Texas asserted that the LeBrecks failed to establish legal causation between the trip and fall and Michael's back injury. Furthermore, BOA-Texas asserted that Marie's cause of action was barred by the statute of limitations. The trial court granted BOA-Texas's motion and entered judgment that the LeBrecks take nothing. The trial court's order granting the motion for summary judgment did not specify the ground on which summary judgment was granted.
Standard of Review
The function of a summary judgment is not to deprive a litigant of the right to a full hearing on the merits of any real issue of fact but to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). Appellate courts review summary judgments under the well-established standards set forth in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985):
1. The movant for su
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