ROSA MARIA MORENO, JOSE M. MORENO, MARIA J. VELA, JORGE LUIS MORENO, MARY A. GARCIA, ET AL. v. LMB, LTD., D/B/A UNIVERSITY PLAZA--Appeal from 92nd District Court of Hidalgo County

 NUMBER 13-02-290-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROSA MARIA MORENO,

JOSE M. MORENO, MARIA

J. VELA, JORGE LUIS MORENO,

MARY A. GARCIA, ET AL., Appellants,

v.

LMB, LTD. D/B/A UNIVERSITY

PLAZA, Appellee.

On appeal from the 92nd District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Ya ez and Castillo

Memorandum Opinion by Justice Ya ez

Appellants Rosa Moreno, et al., as representatives of the estate of Ernestina Moreno, appeal the trial court=s grant of summary judgment arising out of a premises liability suit in favor of appellee, LMB, Ltd. We reverse the trial court=s order and remand this cause for further proceedings consistent with this opinion.

By two issues, appellants argue that the trial court improperly granted appellee=s motion for summary judgment because (1) summary judgment evidence raised fact issues regarding proximate cause, and (2) genuine issues of material fact exist regarding the proximate cause of Moreno=s injuries.

Background

On July 26, 1997, a vehicle struck Ernestina Moreno as she walked through a parking lot owned by appellee. Moreno, who prior to the accident had been diagnosed with cancer, sustained injuries in the accident that included bruises, scrapes, cuts, lacerations, and Acompound fractures to her leg.@ On August 20, 1998, over a year after the accident, Moreno died. According to her death certificate, the causes of death were multiple myeloma and renal failure.

Following her death, appellants filed suit against appellee and others on July 23, 1999 alleging, inter alia, premises liability. On March 19, 2001, appellee filed a no-evidence and traditional motion for summary judgment challenging the proximate cause element of appellants= premises liability claim. On June 15, 2001, the trial court granted appellee=s motion and subsequently entered a final judgment on February 13, 2002. On May 14, 2002, appellants filed their notice of appeal.

Discussion

Appellee moved for summary judgment on both traditional and no-evidence grounds. In ruling for appellee, the trial court did not explain the basis for its judgment and did not specify whether it was granting appellee=s traditional or no-evidence motion. We therefore discuss both grounds for summary judgment and explain why summary judgment was improper on either basis.

By appellants= first issue, they argue that the trial court improperly granted appellee=s summary judgment motion because they presented evidence regarding the proximate cause of Moreno=s death. Appellee contends that (1) appellants produced no evidence to show that appellee=s conduct proximately caused the accident which allegedly led to Moreno=s injuries, and (2) an affidavit from Moreno=s former physician, Dr. Garza, is conclusory and fails to establish his qualifications as an expert on proximate cause. Appellee therefore claims that the trial court properly granted summary judgment in its favor.

No-Evidence Summary Judgment

When considering a no-evidence summary judgment, the movant does not bear the burden of establishing each element of its own claim or defense.[1] Rather, the burden shifts to the non-movant to present evidence raising a genuine issue of material fact in support of the challenged elements.[2] We review the evidence in the light most favorable to the party against whom the summary judgment was rendered, disregarding all contrary evidence and inferences.[3] A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements.[4] More than a scintilla of evidence exists if the evidence Arises to a level that would enable reasonable and fair minded people to differ in their conclusions.@[5] We must affirm summary judgment if any one of the movant=s theories has merit.[6]

Appellants= original petition alleged that appellee (1) owed Moreno a duty as an invitee to exercise ordinary care to keep the premises in a reasonably safe condition, (2) had a duty to inspect the premises to discover latent defects, and (3) had a duty to make safe any defects or give an adequate warning of any dangers. In support of their premises liability theory, appellants argued that appellee failed to (1) provide Moreno with a safe walkway, (2) provide contrasting yellow traffic paint on the surface where Moreno was struck, (3) provide a flat area through the road surface for Moreno=s use, (4) provide adequate lighting of the area to prevent the accident, (5) determine safe speed limits, (6) provide adequate operating room for moving vehicles, and (7) provide safe placement of signs.

In order to prevail on their premises liability theory, appellants had to prove that (1) appellee had actual or constructive knowledge of some condition on the premises, (2) the condition posed an unreasonable risk of harm to the invitee, (3) appellee did not exercise reasonable care to reduce or eliminate the risk, and (4) appellee=s failure to use such care proximately caused the plaintiff=s injuries.[7] Additionally, the components of proximate cause are cause-in-fact and foreseeability.[8] The test for cause-in-fact, or Abut for causation,@ is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred.[9] The test for foreseeability is whether a person of ordinary intelligence would have anticipated the danger his or her negligence creates.[10]

Appellee=s summary judgment motion challenges only the proximate cause element of appellants= premises liability claim. In response to appellee=s motion for summary judgment, the record reflects that appellants submitted the following evidence in support of their summary judgment response: (1) a portion of Moreno=s medical records which reflect that she sustained a compound fracture to her right leg caused by the accident in question; and (2) Dr. Garza=s affidavit which states, in relevant part:

Ernestina Moreno, a former patient of mine, was being treated for cancer when she suffered a fracture of the distal tibia and proximal fibula while walking on the parking lot owned and operated by [appellee]. Prior to this accident . . . Mrs. Moreno=s condition with regard to her multiple myeloma was stable. . . . After suffering her accident, however, I noticed her condition deteriorate rapidly. In my medical opinion, based on the circumstances leading up to Ernestina Moreno=s death, as I found them to be by physical examinations and consultations, beginning before her accident and ending on or about the time of her death on August 20, 1998, the compound fractures to her leg, multiple bruises and edema throughout her body, scrapes, cuts, and lacerations, and blows to her head and other parts of her body, led to her untimely death. In reasonable medical probability, the death of Ernestina Moreno resulted from her weakened condition caused by the accident in question. Therefore, in my opinion, the conduct of [appellee] substantially caused Ernestina Moreno=s injuries and death. In short, [appellee=s] conduct, as evidenced by the condition I found upon examination of her as stated, in a natural and continuous sequence, produced the condition, which directly caused her unfortunate and untimely death.

With respect to appellee=s argument challenging Dr. Garza=s qualifications as an expert on causation in premises liability suits, the record reflects that appellee did not specifically object to Dr. Garza=s qualifications as an expert. In order to preserve an issue for appellate review, a party must object and obtain a ruling from the trial court.[11] Because appellee failed to object to Dr. Garza=s qualifications, it did not preserve this issue for appellate review.[12]

Regarding appellee=s contention that Dr. Garza=s affidavit is conclusory, the Texas Supreme Court has held that an expert must explain the basis of his statements to link his conclusions to the facts.[13] Here, Dr. Garza explained that the injuries sustained as a result of the accident led to Moreno=s death. We therefore conclude that his affidavit was not conclusory and was sufficient to raise a question of fact as to causation.[14]

Having examined the record in a light most favorable to appellants and ignoring all contrary evidence and inferences, we conclude that Moreno=s medical records and Dr. Garza=s affidavit amount to more than a scintilla of probative evidence to raise a genuine issue of material fact regarding proximate cause.[15] Because appellants presented evidence that would enable reasonable and fair-minded jurors to differ in their conclusion regarding the proximate cause of Moreno=s death, summary judgment on the no-evidence ground was improper.[16]

In their second issue, appellants contend that the granting of appellee=s traditional motion for summary judgment was improper because genuine issues of material fact exist regarding causation and appellee=s conduct as the premises owner.

Traditional Motion for Summary Judgment

In a traditional summary judgment, the movant must establish that no genuine issue of material fact exists as to at least one element of the non-movant=s claim and that the movant is entitled to judgment as a matter of law.[17] All doubts about the existence of a genuine issue of material fact are resolved against the movant.[18] When the trial court does not specify the basis for its summary judgment, as is the case here, Athe appealing party must show it is error to base it on any ground asserted in the motion.@[19] A summary judgment must be affirmed if any of the theories advanced by the movant are meritorious.[20] Appellee contends it was entitled to summary judgment because appellants failed to establish that it proximately caused Moreno=s death. Specifically, appellee argues that summary judgment was proper because (1) there was no evidence that its conduct proximately caused Moreno=s death, and (2) Dr. Garza=s affidavit was insufficient to create a genuine issue of material fact regarding causation. We have already determined that Dr. Garza=s affidavit amounted to more than a scintilla of proof on the element of proximate cause. Furthermore, a genuine issue of material fact exists on this element. A traditional summary judgment in appellee=s favor was therefore improper.

Conclusion

Having reviewed both grounds on which appellee moved for summary judgment and concluded that neither ground can support a summary judgment, we reverse the trial court=s judgment and remand for further proceedings consistent with this opinion.

LINDA REYNA YA EZ

Justice

Dissenting Memorandum Opinion

by Justice Errlinda Castillo

Memorandum opinion delivered and

filed this the 16th day of June, 2005.

[1] See Tex. R. Civ. P. 166a(i).

[2] See id.

[3] See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

[4] See id.

[5] Id.

[6] See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

[7] See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).

[8] See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003) (per curiam).

[9] Id.

[10] S.W. Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002).

[11] See Tex. R. App. P. 33.1; see also Mari. Overseas Corp. v. Ellis, 971 S.W.2d 402, 412 (Tex. 1998).

[12] See Tex. R. App. P. 33.1.

[13] See Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999).

[14] See id.

[15] See Merrell Dow Pharm., Inc., 953 S.W.2d at 711.

[16] See id.

[17] See Tex. R. Civ. P. 166a(c); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex. 1990).

[18] See Cate, 790 S.W.2d at 562.

[19] See Doe, 915 S.W.2d at 473.

[20] State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).