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Alvarez v. Salazar-Davis

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 8, 2019

LEONARD ALVAREZ, INDIVIDUALLY AND AS NEXT FRIEND OF CASEY ALVAREZ, MINOR CHILD, Appellant,
v.
BROOKE R. SALAZAR-DAVIS, INDIVIDUALLY, AND IKE DAVIS JR., INDIVIDUALLY AND AS NEXT FRIEND OF GABRIEL DAVIS, MINOR CHILD, Appellees.

          On appeal from the 24th District Court of Victoria County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Longoria

          MEMORANDUM OPINION

          DORI CONTRERAS, CHIEF JUSTICE

         Appellant Leonard Alvarez, individually and as next friend of his son, Casey Alvarez, appeals from a summary judgment granted in favor of appellees Brooke R. Salazar-Davis, individually, and Ike Davis Jr., individually and as next friend of his son Gabriel Davis. By one issue, Alvarez argues the trial court erred when it granted appellees' hybrid motion for summary judgment as to Alvarez's claim for (1) premises liability and (2) negligence. We affirm in part and reverse and remand in part.

         I. Background

         On November 15, 2015, Alvarez and his five-year-old son visited the residence owned by Salazar-Davis and Davis (the Davises) in Victoria, Texas. The Davises invited guests over, including Alvarez, to watch a pay-per-view fight on TV, and their children were also present at the residence. In the backyard, the Davises had a campfire burning. In his second amended petition, Alvarez alleges that, approximately thirty minutes after they arrived, the Davises' four-year-old son Gabriel "flung hot smoldering ashes in the direction of" Casey, which caused Casey "to suffer severe burn injuries to various parts of his body."

         Alvarez brought suit against the Davises on theories of premises liability and negligence. Specifically, Alvarez argued in his second amended petition the Davises were each liable because: (1) they were "negligent in creating a condition which posed an unreasonable risk of harm, to wit, an open fire and hot coals and hot ashes in a pit on [their] premises, that was not supervised, not attended, not extinguished after use, nor covered, nor barricaded"; and (2) they were negligent in the supervision of their son. Alvarez alleges that Ike told him the campfire would be supervised by an adult; Ike claims this never happened. In his deposition testimony, Alvarez was asked "how did Casey get hurt?" and he responded:

My son told me that him and another kid were standing [next] to a fire. He told me that the little boy had a shovel and that the little boy was poking at the fire. My son told me that he asked the boy to stop playing with the fire or poking at the fire with the shovel. And the little boy just swung the shovel, and the coals just flew on top of my son's neck area.

         Later in his deposition, Alvarez clarified that the "little boy" referenced was Gabriel. In the Davises' deposition testimony, they both stated that Gabriel was in the garage with them when Casey suffered the injuries.

         The Davises filed a hybrid motion for traditional and no evidence summary judgment. After a hearing, the trial court granted appellees' motion. Alvarez filed a motion for new trial, which was denied by written order. This appeal followed.

         II. Discussion

         By his sole issue, Alvarez argues that the trial court erred when it granted summary judgment in favor of the Davises.

         A. Standard of Review

         We review the grant of summary judgment de novo. Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771-72 (Tex. App.-Corpus Christi-Edinburg 2003, no pet.) (op. on reh'g). A motion for summary judgment may be brought on no evidence or traditional grounds. See Tex. R. Civ. P. 166a(c), (i). We will affirm a summary judgment "if any of the theories presented to the trial court and preserved for appellate review are meritorious." Joe v. Two Thirty Nine J.V., 145 S.W.3d 150, 157 (Tex. 2004).

         A motion for no-evidence summary judgment is equivalent to a motion for pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006); Ortega, 97 S.W.3d at 772. Such a motion should be granted if there is no evidence of at least one essential element of the claimant's cause of action. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). The burden of producing evidence is entirely on the non-movant; the movant has no burden to attach any evidence to the motion, and if the non-movant produces evidence raising a genuine issue of material fact, summary judgment is improper. See Tex. R. Civ. P. 166a(i). All that is required of the non-movant is to produce a scintilla of probative evidence to raise a genuine issue of material fact on the challenged element. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); Ortega, 97 S.W.3d at 772. "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion of a fact.'" Ortega, 97 S.W.3d at 772 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)); see Forbes, 124 S.W.3d at 172. Conversely, more than a scintilla of evidence exists when reasonable and fair-minded individuals could differ in their conclusions. Forbes, 124 S.W.3d at 172; Ortega, 97 S.W.3d at 772 (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). In determining whether the non-movant has produced more than a scintilla of evidence, we review the evidence in the light most favorable to the non-movant, crediting such evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Tamez, 206 S.W.3d at 582; City of Keller v. Wilson, 168 S.W.3d 802, 825, 827 (Tex. 2005).

         When reviewing a traditional motion for summary judgment, we must determine whether the movant met its burden to establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); see Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The movant bears the burden of proof, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. See Sw. Elec. Power Co., 73 S.W.3d at 215. We take as true all evidence favorable to the non-movant, and we ...


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