Appeal from the 11th District Court Harris County, Texas
Trial Court Cause No. 2014-54920A
consists of Justices Christopher, Busby, and Jewell
(Christopher, J., dissenting).
Brett Busby Justice.
Cleveland Franklin became trapped inside his residential
elevator when it malfunctioned. Without a phone in the
elevator or another way of calling for help, he beat his way
out with his fists, sustaining injuries. He sued various
parties for negligence, including appellee American Elevator
Inspections, Inc., who inspected the elevator after it was
installed by another company. The trial court granted summary
judgment to American Elevator, and Franklin appeals. We
conclude the trial court did not err in granting American
Elevator's traditional motion for summary judgment
because Franklin's evidence failed to raise a fact issue
regarding whether the elevator lacked a phone at the time of
the inspection. We therefore affirm.
September 2012, Franklin's residential elevator
malfunctioned, trapping him between the first and second
floors. Without a phone in the elevator or another way of
calling for help, he beat the door with his fists to escape.
After beating the door for two to three hours, Franklin was
able to push open the door so that he could squeeze through
and climb out onto the second floor landing. He sustained
injuries from striking the door.
elevator was installed by Tejas Elevator Company in 2010,
before Franklin bought the house. In early December 2010,
American Elevator witnessed the residential elevator
acceptance inspection. According to the inspection report, the
elevator was in compliance with all applicable City of
Houston codes and standards, which required that a telephone
be installed in the elevator. Franklin bought the house after
the inspection and began living there sometime in 2011.
the incident, Franklin sued American Elevator and others for
negligence. American Elevator filed both no-evidence and
traditional motions for summary judgment. Among other
grounds, American Elevator argued in its traditional motion
that it did not breach its duty in inspecting the elevator.
American Elevator submitted an affidavit from the employee
who witnessed the inspection, Mitchell Osina. Osina testified
that there was a standard hand-held, hard-wired telephone
sitting on the floor of the elevator cab at the time of
inspection. According to Osina, this telephone dialed
properly and met the City of Houston requirements.
Elevator's evidence also included an expert affidavit and
report from an engineer, Patrick McPartland, who spoke with
Osina and examined the elevator and the control room after
the incident. McPartland explained in his affidavit and
report that there were several pairs of telephone wires in
the elevator control room, with one pair stripped as if it
had been removed from terminals. McPartland stated in his
report that wires from the elevator terminated inside the
control room in two screw terminals, and that the unused
wires were long enough to reach these terminals. McPartland
concluded from these facts that the telephone on the floor of
the elevator during the inspection had been removed.
response to American Elevator's traditional motion for
summary judgment included testimony by deposition and
affidavit from Franklin and by affidavit from Beau Harmer.
Franklin testified that he visited the house before and after
the inspection and did not observe any telephone in the
elevator. Harmer testified in his affidavit that he installed
a speaker phone in the wall of the elevator after the
incident. According to Harmer, this was a new phone
installation because he had to cut open the wall to install
the phone. He also stated that the telephone wires did not
run all the way into the elevator prior to his installation,
and he had to run the wires through the panels in the
trial court granted American Elevator summary judgment on
both no-evidence and traditional grounds. The trial court
also granted American Elevator's unopposed motion to
sever, making the trial court's orders granting summary
judgment final and appealable. See Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 205 (Tex. 2001). This appeal
contends that American Elevator is not entitled to either
no-evidence or traditional summary judgment. Franklin argues,
among other things, that there are genuine issues of material
fact as to each element of his negligence claim. American
Elevator argues, among other things, that Franklin did not
raise a fact issue as to whether American Elevator breached
its duty in inspecting the elevator, and that even if it did
breach its duty, American Elevator's conduct was not the
proximate cause of Franklin's injuries. We first consider
whether Franklin raised a genuine issue of material fact that
American Elevator breached its duty in inspecting the
elevator. We conclude Franklin's summary judgment
evidence did not raise a fact issue on the element of breach.
Because this issue is dispositive, we do not address
Franklin's other issues.
The trial court did not err in granting American
Elevator's traditional ...