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Franklin v. American Elevator Inspections, Inc.

Court of Appeals of Texas, Fourteenth District

December 21, 2017

CLEVELAND FRANKLIN, Appellant
v.
AMERICAN ELEVATOR INSPECTIONS, INC., Appellee

         On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2014-54920A

          Panel consists of Justices Christopher, Busby, and Jewell (Christopher, J., dissenting).

          MAJORITY OPINION

          J. Brett Busby Justice.

         Appellant 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.

         Background

         In 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.

         The 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.[1] 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.

         After 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.

         American 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.

         Franklin's 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 elevator.

         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 followed.

         Analysis

         Franklin 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.

         I. The trial court did not err in granting American Elevator's traditional ...


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