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Lara v. Tri-Costal Contractors6/6/1996
Joe Louis Trevino's survivors, the plaintiffs below, appeal from an adverse summary judgement entered in favor of Tri-Coastal Contractors, Inc., one of several defendants sued by appellants following Trevino's death in a work-related accident involving the transportation of an oil field pumpjack. Appellants asserted twenty-six causes of action based on negligence. Tri-Coastal moved for summary judgement on all of the causes of action asserted by all of the plaintiffs and alternatively for partial summary judgement against all causes of action asserted by Linda Palacios Lara ("Lara"). The trial court granted the full summary judgment, then severed the actions against Tri-Coastal from the remaining defendants. By a single point of error, appellants contend that the trial court erred in granting Tri-Coastal's motion.
SUMMARY JUDGMENT
Summary judgement is proper when the movant shows by uncontroverted or conclusive summary judgement evidence that no issue of material fact exists and that he is entitled to judgement as a matter of law. In deciding whether a disputed material fact issue precludes summary judgment, a reviewing court will take as true all evidence favorable to the non-movant and will indulge all reasonable inferences and resolve all doubts in the nonmovant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When a defendant moves for summary judgment, he must show that no genuine issue of fact exists as to one or more of the essential elements of the plaintiff's cause of action, Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970), or that an affirmative defense is established as a matter of law. Munoz v. Gulf Oil Co., 693 S.W.2d 372, 373 (Tex. 1984) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)).
A motion for summary judgement is properly granted only if the motion and its supporting affidavits show that the movant is entitled to judgment as a matter of law. Mayo v. John Hancock Mut. Life Ins. Co., 711 S.W.2d 5, 6 (Tex. 1986). Summary judgement for a defendant in particular is proper when at least one element of a plaintiff's cause of action has been established conclusively against the plaintiff. Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex. 1975); Walton v. Harnischfeger, 796 S.W.2d 225, 228 (Tex. App.--San Antonio 1990, writ denied). When the defense is in the nature of a denial, as it is here, the burden of the defendant moving for summary judgement is to establish that the plaintiff does not have sufficient evidence to go to a jury on a controlling issue that is essential to plaintiff's recovery. State v. Seventeen Thousand and no/100 Dollars U.S. Currency, 809 S.W.2d 637, 639 (Tex. App.--Corpus Christi 1991, no writ).
In this case, Tri-Coastal's summary judgement evidence consists soley of the expert testimony of work-place experts, Dr. Waymon L. Johnston and Dr. Gary D. Smith. In their motion, Tri-Coastal argued that the expert testimony "clearly indicates that [Tri-Coastal] was not negligent and was not grossly negligent in the causation of the death of the Decedent, Joe Louis Trevino." Dr. Johnston testified that he had no opinion as to the training provided to Gilbert Rodriguez (decedent's co-worker at the accident site) or to the decedent by Tri-Coastal and that he was not critical of Tri-Coastal's conduct insofar as providing a safe work place for the decedent. He further testified that all precautions necessary and reasonable had been taken by Tri-Coastal. Additionally, he stated that in his opinion, the decedent was an employee of Ace Transportation for the day-to-day work activities and supervision thereof; and an employee of Tri-Coastal for payro
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