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Barker v. City of Galveston8/31/1995
Appellants, T. Craig Barker and Vicki Barker, individually and as next friend of James Henry Barker, appeal a summary judgement in favor of appellees, the City of Galveston and Herman Holloway. We affirm.
Facts
On May 18, 1990, James Henry Barker, age six, was at the Harry T. Schreiber Park in Galveston on a supervised school outing. While playing at the park, he was struck on the head by a "flying animal" swing and suffered a depressed skull fracture.
The plaintiffs, James's parents, sued the City and Holloway, who was then director of the Parks and Recreation Department for the City, for negligence, premise and special defect liability, negligent infliction of emotional distress, and bystander liability. Specifically, the plaintiffs alleged the City and Holloway were negligent in their use of tangible personal property by selecting and continuing to use the flying animal swings; by failing to read and circulate the manufacturer's safety notice; and by failing to install clevis covers and front bumpers on the swings. They further alleged the swings, as premise defects, were dangerous and the City knew they were dangerous, and the swings were special defects under TEX. CIV. PRAC. & REM. CODE Section(s) 101.022.
The City and Holloway filed a motion for summary judgment. In their motion the City and Holloway raised defenses to some of the plaintiffs' causes of action and attacked the elements of other causes of action. The City raised the defenses of (1) governmental immunity, (2) limitation on liability for landowners under TEX. CIV. PRAC. & REM. CODE Section(s) 75.002(c), and (3) immunity under the discretionary functions exemption under TEX. CIV. PRAC. & REM. CODE Section(s) 101.056. Holloway raised an immunity defense under the doctrine of qualified immunity and under TEX. CIV. PRAC. & REM. CODE Section(s) 101.106. The City and Holloway claimed the plaintiffs could not recover for negligent infliction of emotional distress after Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993); for bystander liability under the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE Section(s) 101.021; or for premise or special defects under TEX. CIV. PRAC. & REM. CODE Section(s) 101.022. The trial court granted the City and Holloway's motion for summary judgement and severed the causes of action against them from the causes of action against the manufacturer and distributor.
Standard of review
Summary judgement is proper only when a movant establishes there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1994); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App. -- Houston [1st Dist.] 1993, writ denied). In reviewing the summary judgment, we indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. Randall's Food Markets, 891 S.W.2d at 644; Marchal, 859 S.W.2d at 412. In our review, we assume all the evidence favorable to the non-movant is true. Randall's Food Markets, 891 S.W.2d at 644; Marchal, 859 S.W.2d at 412. A defendant is entitled to summary judgement if the defendant disproves at least one element of each of the plaintiff's causes of action as a matter of law. Randall's Food Markets, 891 S.W.2d at 644; Marchal, 859 S.W.2d at 412. A defendant is also entitled to summary judgement if it conclusively establishes all elements of an affirmative defense as a matter of law. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994); Boozier v. Hambrick, 846 S.W.2d 593, 597 (Tex.App. --Houston [1st Dist.] 1993, no writ).
The trial court's order does not state
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