Shahnaz Khan v. Ferhat M. Hasan and Manzoor Hasan--Appeal from 190th District Court of Harris County

Opinion issued March 6, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00082-CV

SHAHNAZ KHAN, Appellant

V.

FERHAT M. HASAN AND MANZOOR HASAN, Appellees

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2006-02890

MEMORANDUM OPINION

Appellant, Shahnaz Khan, sued appellees, Ferhat M. Hassan and Manzoor Hasan, under theories of general negligence and premises liability, after appellant slipped and fell on the steps leading up to appellees house.

In three issues, appellant contends that the trial court erred by rendering a no-evidence summary judgment in favor of appellees (1) without first advising [appellant] of the ruling on [appellant s] challenges to the sufficiency of [appellees ] Motion for Summary Judgment and allowing [appellant] an opportunity to respond to the trial court s ruling ; (2) because [appellees] were aware of the condition . . . and failed to warn [appellant] ; and (3) because whether . . . [appellees ] sidewalk is a dangerous condition and/or whether [appellees ] were negligent in any manner in failing to warn [appellant] of the condition of the sidewalk is a question of fact, not law.

We affirm.

Facts and Procedural History

On January 18, 2004, appellant, who was a guest at appellees house in Houston, suffered injuries when she slipped and fell while walking up the sidewalk and steps leading to appellees front door.

On January 17, 2006, appellant sued appellees, under theories of general negligence and premises liability, contending that appellees had negligently allowed ice to build up on the steps. Appellant alleged that appellees had control of the premises, were aware of the icy condition, and breached their duty to remove the ice, to provide adequate lighting, or to warn appellant. Appellant contended that appellees breach was the proximate cause of injuries to her wrist, hand, and back.

On October 4, 2006, appellees moved for a no-evidence summary judgment on the basis that there was no evidence of certain essential elements of appellant s claims, namely, breach of duty and causation. In addition, appellees specially excepted to appellant s petition, contending that appellant failed to specify the extent of her injuries, the maximum level of damages sought, and how appellees knew of icy conditions.

On October 13, 2006, appellant filed an amended petition in which she specified that her wrist, hand, and back were injured and that she would seek up to $2,000,000 in damages. In addition, appellant dropped the allegation that the steps had been icy and, instead, appellant contended that she had tripped on a sudden and unexpected rise in the sidewalk that was unknown to [appellant] and which [appellant] could not have seen. Appellant alleged that another person had fallen as a result of the same condition three months prior to her own fall and that, although appellees were aware of the prior incident, they had failed to remedy the condition. Appellant sought exemplary damages on the basis that appellees omissions involved an extreme degree of risk.

Appellees elected to proceed with their original motion for summary judgment and the parties agreed that appellant would have additional time to file her response. On October 25, 2006, in her response to the motion for summary judgment, appellant objected to the sufficiency of appellees motion and contended that she had viable causes of action. Appellant s summary judgment evidence, as appended to her response, consisted of the parties agreement extending time to file the response, appellant s amended petition, and appellant s answers to appellees requests for disclosure.

On October 30, 2006, the trial court granted appellees motion for no-evidence summary judgment, without stating its basis, and ordered that appellant take nothing on her claims. Appellant moved for a new trial, which the trial court denied.

No-Evidence Summary JudgmentA.Standard of Review

After an adequate time for discovery, the party without the burden of proof may move for summary judgment, with or without presenting evidence, on the basis that there is no evidence to support an essential element of the non-moving party s claim. Tex. R. Civ. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). First, the movant must specifically state the element as to which there is no evidence. Tex. R. Civ. P. 166a(i). The burden then shifts to the non-movant to produce competent evidence that raises a genuine issue of material fact on the challenged elements. See Johnson, 73 S.W.3d at 207; Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex. App. Houston [1st Dist.] 2000, pet. denied). To defeat a no-evidence motion, the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements. Tex. R. Civ. P. 166a(i) cmt. If the non-movant brings forward more than a scintilla of probative evidence to raise a genuine issue of material fact, then summary judgment is not proper. Forbes, Inc. v. Granada Biosciences Inc., 124 S.W.3d 167, 172 (Tex. 2003); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App. Houston [1st Dist.] 1999, no pet.). When determining if more than a scintilla of evidence has been produced, the evidence must be viewed in the light most favorable to the non-movant. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). More than a scintilla exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. On the other hand, [w]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Id.

Because the trial court s order granting summary judgment does not specify the basis for the ruling, we must affirm the trial court s judgment if any of the theories advanced has merit. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Ben E. Keith Co. v. Aleman, 227 S.W.3d 304, 309 (Tex. App. Houston [1st Dist.] 2007, no pet.).

B. Applicable Law

Prevailing on a negligence cause of action requires proof that (1) the defendant owed a legal duty to the plaintiff, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff s injury. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).

Premises liability is a special form of negligence in which the duty owed to the plaintiff depends upon her status as an invitee, licensee, or trespasser on the premises. // See Urena, 162 S.W.3d at 550. Whether an entrant is an invitee or a licensee depends on that person s purpose in coming to the property. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). Generally, an invitee is someone who enters the premises on the business of or for the mutual benefit of both parties. McClure v. Rich, 95 S.W.3d 620, 625 (Tex. App. Dallas 2002, no pet.). Guests invited to the property for social purposes are generally regarded as licensees. Id. at 624.

When a premises liability suit is brought by an invitee, the plaintiff must show that (1) the plaintiff was an invitee; (2) the defendant was a possessor of the premises; (3) a condition on the premises posed an unreasonable risk of harm; (4) the defendant knew or reasonably should have known of the danger; (5) the defendant breached its duty of ordinary care by both failing to make the condition reasonably safe and failing to adequately warn the plaintiff; and (6) the defendant s breach proximately caused the plaintiff s injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).

When a premises liability suit is brought by a licensee, the elements are the same as those enumerated above for an invitee, except that the plaintiff must instead show that she was a licensee, that the defendant had actual knowledge of the danger, and that the plaintiff lacked such knowledge. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003).

C. Appellant s Objections to Appellees Motion for Summary Judgment

In her first issue, appellant contends that the trial court erred by granting summary judgment in favor of appellees without first advising [appellant] of the ruling on [appellant s] challenge to the sufficiency of [appellees ] Motion . . . and allowing [appellant] an opportunity to respond to the trial court s ruling. Appellant complains that [i]f the trial court were inclined to grant summary judgment in favor of [appellees], it should have also made written findings on [appellant s] objections and challenges to the sufficiency of [appellees ] motion prior to granting the relief.

In her response to the motion for summary judgment, appellant objected to the first three paragraphs of appellees motion, entitled Opening Statement, Background Facts, and Summary Judgment Standard, on the grounds that they consisted of unsubstantiated opinions and conclusory legal statements which could not be considered competent summary judgment evidence. (Emphasis added.) In addition, appellant objected that appellees failed to identify or offer any evidence to challenge one element of [appellant s] causes of action or theories of recovery. (Emphasis added.)

There is no evidentiary burden imposed on a movant seeking summary judgment under Rule 166a(i). See Tex. R. Civ. P. 166a(i); see also Heiser v. Eckerd Corp., 983 S.W.2d 313, 316 (Tex. App. Fort Worth 1998, no pet.). Hence, here, appellees were required only to specifically state in their motion the element or elements as to which there is no evidence. See id. In their motion, appellees enumerated the elements of the causes of action alleged by appellant, that of general negligence and of premises liability. As to appellant s general negligence claim, appellees expressly asserted in their motion that [appellant] has no evidence of breach of duty or of proximate cause. As to appellant s premises liability claim, appellees expressly asserted that appellant has no evidence of the elements described. Appellees met their burden under the rule. See id.

Appellant contends that the trial court was required to notify her of its intent to overrule her objections to the sufficiency of appellees motion for summary judgment in advance of its ruling on appellees motion. // Appellant has not directed us to any place in the record in which she made such a request in the trial court. In addition, appellant has not directed us to any authority, and we do not find any, that supports her proposition that, by challenging the sufficiency of appellees motion for summary judgment in her response, appellant was entitled to advance written notice from the trial court of its intended rulings and that, if the court intended to overrule appellant s objections and was inclined to grant the summary judgment, that appellant was entitled to additional time to amend her response or to replead a viable cause of action before the trial court ruled on the motion for summary judgment.

Accordingly, appellant s first issue is overruled.

D. Appellant s Evidence

In her second issue, appellant contends that the trial court erred by rendering a no-evidence summary judgment in favor of appellees because [appellees] were aware of the condition . . . and failed to warn [appellant]. We construe appellant s contention to be that she produced evidence of the challenged elements of her claims.

Once appellees properly raised their motion for no-evidence summary judgment, as here, Rule 166a(i) placed the burden on appellant, as the non-movant, to produce evidence on each challenged element of her claim. See Colson v. Grohman, 24 S.W.3d 414, 420 (Tex. App. Houston [1st Dist.] 2000, pet. denied).

Even if we assume, without deciding, that appellant produced sufficient evidence of the elements of notice and failure to warn, these are not the sole elements upon which appellees based their challenge. Hence, appellant s response is inadequate to defeat a no-evidence summary judgment motion under Rule 166a(i). See id.

Accordingly, appellant s second issue is overruled.

E. Question of Fact or Law

In her third issue, appellant contends that the trial court erred by rendering a no-evidence summary judgment in favor of appellees because whether . . . [appellees ] sidewalk is a dangerous condition and/or whether [appellees ] were negligent in any manner in failing to warn [appellant] of the condition of the sidewalk is a question of fact, not law.

It was appellant s burden to produce more than a scintilla of evidence to raise a genuine issue of material fact as to the challenged elements. See Johnson, 73 S.W.3d at 207; Dolcefino, 19 S.W.3d at 916 (stating that, once movant properly raises its motion for no-evidence summary judgment, burden shifts to non-movant to produce competent evidence that raises genuine issue of material fact on challenged elements). We have concluded that appellant failed to meet her burden.

Accordingly, appellant s third issue is overruled.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Nuchia, Hanks, and Higley.