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Travis v. City of Van Alstyne12/18/1995
AFFIRM, and Opinion Filed.
December 18, 1995
O P I N I O N
Lucretia Travis and Bryan Travis ("Travis") appeal from a summary judgement granted in favor of the City of Van Alstyne ("Van Alstyne"). Travis complains in a sole point of error that the trial court erred in granting the summary judgement because issues of fact remained on Travis's payment for use of the park and the existence of a "special defect." We overrule Travis's point and affirm the summary judgment.
On May 21, 1991, Bryan Travis was playing baseball on a field owned and operated by Van Alstyne. A fence composed only of vertical and horizontal poles surrounded the field. Bryan Travis and his mother Lucretia Travis later stated in deposition that they both were aware of the fence structure. While chasing a fly ball, Travis ran into one of the horizontal fence poles, sustaining injuries to his chin and mouth. Travis was a member of the "Little League," a voluntary athletic association. Little League is wholly independent of the City of Van Alstyne. Travis had paid eighteen dollars to the Little League to participate. Van Alstyne allowed the Little League to use the field without charge.
Travis filed a suit for damages against Van Alstyne alleging that the fence constituted either a premise defect or a special defect under the Texas Tort Claims Act. The trial court granted Van Alstyne's motion for summary judgment.
SUMMARY JUDGMENT
Standard of Review
The function of summary judgement 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. See Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952). In reviewing summary judgement record, this Court applies the following standards: 1. The movant for summary judgement has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgement as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor.
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
The purpose of the summary judgement rule is not to provide either a trial by deposition or a trial by affidavit, but a method of summarily terminating a case when it clearly appears that only a question of law is involved and no genuine issues of fact remain. See Gaines v. Hamman, 358 S.W.2d 557, 563 (Tex. 1962). For the defendant, as movant, to prevail on a summary judgment, it must either disprove at least one element of the plaintiff's theory of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. See International Union UAW Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex. App.--Dallas 1991, writ denied) (op. on reh'g). An issue is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. See Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).
In a summary judgement case, the question on appeal is whether the summary judgement proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the cause of action. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970).
TEXAS TORT CLAIMS ACT
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