Gerald Kostecka v. Smokey Mo's Franchise, LLC D/B/A Smokey Mo's BBQ
03-15-00295-CV
| Tex. App. | Oct 8, 2015Background
- On Oct. 12, 2010 Gerald Kostecka alleges a chair "shot out from under" him while dining at Smokey Mo’s BBQ, causing knee injury.
- Kostecka sued for premises liability and negligence; Smokey Mo’s denied liability and raised contributory negligence as an affirmative defense.
- Smokey Mo’s filed a no-evidence motion for summary judgment arguing Kostecka had no evidence on essential elements including ownership/control, notice, unreasonable condition, causation, and damages.
- Kostecka responded primarily with his own affidavit (self-serving, conclusory) and discovery responses referencing pre-existing chiropractic treatment; no medical records or expert proof of causation/damages were produced.
- The trial court granted Smokey Mo’s no-evidence summary judgment on Feb. 13, 2015; appellee urges affirmance on appeal because Kostecka offered only conclusory affidavit and inadmissible hearsay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of an unreasonably dangerous condition on premises | Chair/floor condition (per employee statements) created a dangerous situation causing fall | Plaintiff offered no factual proof describing the chair/floor defect; affidavit conclusory | No evidence of specific unreasonable condition; summary judgment affirmed |
| Notice/knowledge by owner (actual or constructive) | Employees allegedly told plaintiff about floor/chair issue (employee statements) | Statements are hearsay unless shown to be admissions by agent acting within scope; plaintiff failed to authenticate or show scope | Plaintiff failed to prove Smokey Mo’s had requisite knowledge; no-evidence SJ proper |
| Causation and damages | Plaintiff asserted he jammed his knee and continues to suffer pain/impairment (affidavit) | No medical records, expert testimony, or other competent evidence linking fall to claimed injuries | Plaintiff offered only conclusory affidavit; no more than scintilla for causation/damages |
| Ownership/control of condition (duty to remedy) | Implicitly asserts restaurant controlled chairs/floors | Plaintiff did not prove Smokey Mo’s owned/controlled the specific chairs/floor condition or could remedy it | No evidence of control or duty to remedy; claim fails as matter of law |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for reviewing legal and factual sufficiency in summary-judgment context)
- Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996) (affidavits that are conclusory are not competent summary-judgment proof)
- Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) (no-evidence summary judgment standards)
- Timpte Indus. v. Gish, 286 S.W.3d 306 (Tex. 2009) (credit evidence favorable to nonmovant only if reasonable jurors could)
- La Sara Grain Co. v. First Nat'l Bank, 673 S.W.2d 558 (Tex. 1984) (knowledge of an agent may be imputed to a corporation when in course of employment)
- Humpreys v. Caldwell, 888 S.W.2d 469 (Tex. 1994) (affidavit must positively show facts are within affiant's personal knowledge)