Spencer v. City of Dallas

• Decision Date: 30 October 1991
• Docket Number: No. 05-91-00020-CV,05-91-00020-CV
• Citation: 819 S.W.2d 612
• Parties: Marlene SPENCER, Appellant, v. CITY OF DALLAS, Appellee.
• Court: Texas Court of Appeals

Page 612

819 S.W.2d 612

Marlene SPENCER, Appellant, v. CITY OF DALLAS, Appellee.

No. 05-91-00020-CV.

Court of Appeals of Texas Dallas.

Oct. 30, 1991.

Vic Terry, Warren Hays, Dallas, for appellant.

David Terry, Randall D. Fife, Dallas, for appellee.

Before BAKER, THOMAS, and WHITTINGTON, JJ.

OPINION

BAKER, Justice.

Marlene Spencer sued the City of Dallas under the Texas Tort Claims Act. ¹ The trial court granted the City's motion for summary judgment. Spencer contends the trial court erred in granting summary judgment. We affirm the trial court's judgment.

THE PLEADINGS

Spencer sued the City and other defendants for personal injuries she claims resulted from a fall at Tietze Park, a Dallas city park. She alleged she tripped and fell on the concrete footing of a park slide. Spencer dismissed all defendants except the City when she filed her first amended original petition.

The City moved for summary judgment. Spencer then filed her first amended original petition and response to the City's motion for summary judgment.

Spencer's amended petition alleged a cause of action against the City under the Act. She alleged that: (1) the City owed her a duty of ordinary care because she was an invitee at the time of her fall; (2) her fall was not on a premise; (3) the park was a location owned, managed, or controlled by the City; and (4) the City was negligent because it did not exercise ordinary care. Spencer's first amended original petition did not include any allegations about the City's design of either the park or the slide. Spencer's petition did not allege that the City acted willfully, wantonly, or with gross negligence.

The City's motion for summary judgment alleged as grounds: (1) the City has sovereign immunity because the design of a public park is a discretionary act; (2) the City owed Spencer the standard of care of a trespasser under chapter 75 of the Texas Civil Practices and Remedies Code, ² and Spencer did not allege that the City acted willfully, wantonly, or with gross negligence toward her; or, alternatively, (3) Spencer was a licensee under section 101.022 of the Act, and the only duty the City owed Spencer was to warn of or make safe a dangerous condition actually known to the City.

The trial court granted the City's motion. The trial court's order does not state the ground on which the court sustained the City's motion.

SPENCER'S POINT OF ERROR

Spencer asserts the trial court erred in granting the City summary judgment. This point is sufficient to permit Spencer to raise every available legal attack on the summary judgment the trial court rendered. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).

STANDARD OF REVIEW

A. Summary Judgment

The Texas Supreme Court has set the standards we apply in reviewing a trial court's grant of a summary judgment. As mandated by that court, they are:

1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, we must take evidence favorable to the nonmovant as true.

3. We must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor.

See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

The summary judgment rule does not provide for a trial by deposition or affidavit. The rule provides a method of summarily ending a case that involves only a question of law and no genuine fact. See Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). The trial court's duty is to determine if there are any fact issues to try, not to weigh the evidence or determine its credibility and try the case on affidavits. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). The purpose of the summary judgment rule is to eliminate patently unmeritorious claims or untenable defenses. The rule is not intended to deprive the litigants of their right to a full hearing on the merits of any real issue of fact. See Gulbenkian, 252 S.W.2d at 931.

A movant must show its entitlement to summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of its cause of action or defense as a matter of law. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). The trial court may not grant summary judgment by default against the nonmovant for failing to respond to the motion when the movant's summary judgment proof is legally insufficient. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

To show its right to a summary judgment, the defendant must either disprove an essential element of the plaintiff's cause of action as a matter of law or establish all elements of its defense as a matter of law. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Pinckley v. Gallegos, 740 S.W.2d 529, 531 (Tex.App.--San Antonio 1987, writ denied).

A nonmovant need not answer or respond to a motion for summary judgment to contend on appeal that the grounds expressly presented by the movant's motion are insufficient as a matter of law to support summary judgment. However, the nonmovant may not raise any other issues as grounds for reversal. City of Houston, 589 S.W.2d at 678.

Except to attack the legal sufficiency of the movant's grounds for summary judgment, the nonmovant must expressly present to the trial court any reason for avoiding the movant's entitlement to summary judgment, and the nonmovant must present summary judgment proof when necessary to show a fact issue. The nonmovant must expressly present to the trial court in a written answer or response to the motion those issues that would defeat the movant's right to summary judgment and, failing to do so, may not later assign them as appellate error. TEX.R.CIV.P. 166a(c); City of Houston, 589 S.W.2d at 678-79.

B. Competency of Summary Judgment Evidence

Rule 166a(c) of the Texas Rules of Civil Procedure provides in part that a summary judgment may be based on uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted. TEX.R.CIV.P. 166a(c). Rule 166a(f) provides that defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity by the other party, but refusal, to amend. TEX.R.CIV.P. 166a(f).

If the nonmovant does not point out to the trial court defects in the form of affidavits or attachments before the trial court renders summary judgment, it waives defects of form. See Life Ins. Co. v. Gar-Dal, Inc., 570 S.W.2d 378, 381 (Tex.1978); Jones v. McSpedden, 560 S.W.2d 177, 179 (Tex.Civ.App.--Dallas 1977, no writ). However, legal conclusions and opinions in an affidavit are insufficient to show the existence of a fact to support a motion for summary judgment. See Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex.1984); Jones, 560 S.W.2d at 180-81.

The uncontroverted affidavit of an interested party will support a summary judgment without a controverting affidavit or an attempt by the nonmovant to avail himself of the opportunity to seek a delay to secure affidavits or take depositions controverting the facts stated by the interested witness. See Longoria v. Texaco, 649 S.W.2d 332, 335-36 (Tex.App.--Corpus Christi 1983, no writ); TEX.R.CIV.P. 166a(g).

THE SUMMARY JUDGMENT EVIDENCE

A. The City's Evidence

The City based its motion on the pleadings, excerpts of Spencer's deposition, and the affidavit of Steven M. Park, superintendent of design and construction of the City's Parks and Recreation Department. Park bases his affidavit on personal knowledge gained from his position with the City and his review of the City's records.

Spencer's deposition reflected she went to Tietze Park with her daughter for recreational purposes. She was helping her daughter and a playmate at the slide. She moved to the left of the slide, fell, and fractured her left hip. She said she fell over a concrete block anchoring the metal support holding the lip at the bottom of the slide. She said she did not pay a fee to enter the park.

Park's affidavit states that: (1) Tietze Park is a free public park for anyone's use without the payment of a fee; (2) the park is a recreational park with both active and passive recreation activities; (3) the playground slide is open and obvious to all park users; (4) the City had no notice of any defect in the slide before the date of Spencer's fall; and (5) there was no record of any previous similar accident at the park.

B. Spencer's Evidence

Spencer filed a written response to the City's motion. She incorporated her first amended original petition, all discovery in the case, the City's motion for summary judgment, and Park's affidavit. Spencer's response alleged the existence of issues of material fact about the City's negligence. Spencer's response also alleged that Park's affidavit as to notice only raises a question of fact and was self-serving. Finally, Spencer asserts that because she amended her petition, the City's summary judgment proof did not negate her most recent pleadings. Spencer did not support her response with controverting affidavits.

STATUTORY BASIS FOR THE CITY'S LIABILITY

Spencer's first amended original petition alleges a cause of action against the City under the Texas Tort Claims Act. She alleged the City owed her the duty of ordinary care because she was an invitee at the time of her fall; Tietze Park was a location owned, managed, or controlled by the City; and her fall was not on a premise. The provisions of the Act limit the City's liability to Spencer.

A. Condition or Use of Tangible Personal or Real Property

The City can be liable to an individual for personal injury when the...