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Bailey v. Schaars12/14/1999
In this personal injury suit, Erica Bailey appeals from a summary judgment granted in favor of Connor Schaars. In four points of error, appellant contends the trial court erred in rendering summary judgment because:
(1) issues of intent were involved which could not be readily controverted; (2) minors in Texas can be held civilly liable for their intentional torts; (3) regarding intent to commit a battery, Connor failed to meet his summary judgment burden and failed to controvert appellant's summary judgment evidence; and (4) appellant presented evidence sufficient to create a fact issue on her damages. For the reasons stated below, we reverse the trial court's judgment and remand the cause to the trial court for further proceedings consistent with this opinion.
Factual and Procedural Background
On April 16, 1994, appellant was baby-sitting the two minor children of Theo and Macqueline Schaars in their Carrollton home. That evening, appellant was approached by Connor Schaars, then four years old, about playing a game. Appellant told him she would play with him soon. Shortly thereafter, as appellant helped the other child with his dinner, Connor became angry, ran up behind appellant, and unexpectedly struck her in the throat. Appellant sustained injuries including loss/impairment of her voice for a period of three to four months as well as a crushed larynx which required speech therapy.
Appellant filed suit against the Schaars and Connor alleging Connor's actions were intentional and constituted a battery. The Schaars moved for summary judgment on the claims against Connor on the grounds that Connor, at age four, was incapable of negligent or intentional conduct as a matter of law and that appellant failed to prove she suffered any damages. The trial court, without specifying a ground, granted the summary judgment on all claims made against Connor.
Summary Judgment
The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); Tex. R. Civ. P. 166a(c). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff's theory of recovery or (2) plead and conclusively establish each essential element of an affirmative defense. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979); Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657 (Tex. App._Dallas 1992, no writ). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the non-movant. See Nixon, 690 S.W.2d at 549; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984). Every reasonable inference from the evidence will be indulged in favor of the non-movant, and any doubts will be resolved in favor of the non-movant. See Nixon, 690 S.W.2d at 549; Montgomery, 669 S.W.2d at 311.
The standard for reviewing a summary judgment on appeal is not whether the summary judgment proof raises a fact issue, but whether the summary judgment proof establishes as a matter of law there is no genuine fact issue as to one or more of the essential elements of the plaintiff's cause of action. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). The usual presumption that the judgment is correct does not apply to summary judgments. See Montgomery, 669 S.W.2d at 311. An appellate court will rarely consider evidence that favors the movant's position unless it is uncontroverted. See Great Am. Reserve Ins. Co. v. San
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