Gerald Kostecka v. Smokey Mo's Franchise, LLC D/B/A Smokey Mo's BBQ
03-15-00295-CV
| Tex. App. | Oct 7, 2016Background
- On October 12, 2010, Gerald Kostecka (invitee) fell at Smokey Mo’s BBQ when his chair slipped on a slick restaurant floor, injuring his left leg and knee.
- Kostecka’s affidavit states employees told him the chair legs and floor paint created a dangerous, slick condition that had existed for some time and that employees had tried but failed to remedy it.
- Kostecka alleged Smokey Mo’s (possessor of premises) knew or should have known of the dangerous condition, failed to warn or exercise ordinary care, and that this failure proximately caused his injuries and ongoing pain.
- Smokey Mo’s moved for no-evidence summary judgment, conceding invitee status and possession but asserting lack of evidence on the other elements (condition, knowledge, breach, causation, damages) and challenging hearsay and sufficiency of damage proof.
- The trial court granted the no-evidence summary judgment for Smokey Mo’s; Kostecka appealed.
- The Court of Appeals reversed and remanded, finding Kostecka’s affidavit raised more than a scintilla of evidence on the contested elements and rejecting Smokey Mo’s procedural and evidentiary arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of unsafe condition | Floor was slick due to paint and chair-leg interaction causing chair to slip | No evidence of a dangerous condition | Kostecka’s affidavit raised more than a scintilla that the floor was slick and caused the fall |
| Knowledge of condition | Employees told him restaurant knew of slickness and had tried to fix it (actual and constructive knowledge) | Plaintiff needed to show actual knowledge; hearsay statements are inadmissible | Court found affidavit supports actual/constructive knowledge; hearsay objection waived and statements fit party-opponent exception (employee admissions) |
| Breach / failure to warn or remedy | Smokey Mo’s failed to warn or adequately remedy a known dangerous condition | No evidence defendant failed to exercise ordinary care | Affidavit sufficiently raised triable issues that defendant failed to exercise reasonable care or warn patrons |
| Damages sufficiency | Affidavit describes pain, impairment, and ongoing injury | Testimony is self-serving and unsupported by medical records | Court held affidavit evidence on pain and impairment raises fact issues for trial; credibility/weight are for jury |
Key Cases Cited
- Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983) (elements of premises-liability claim)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (standard for reviewing no-evidence summary judgment — view evidence in favor of nonmovant)
- Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (no-evidence standard requires more than a scintilla of evidence)
- State v. Williams, 940 S.W.2d 583 (Tex. 1996) (discussing knowledge requirement in premises cases involving licensees)
- McMahan v. Greenwood, 108 S.W.3d 467 (Tex. App.—Houston [14th Dist.] 2003) (affidavit hearsay/form objections must be raised in trial court to preserve error)
- Stone v. Midland Multifamily Equity REIT, 334 S.W.3d 371 (Tex. App.—Dallas 2011) (same, on hearsay defects in summary-judgment affidavits)
- Wilson v. Gen. Motors Acceptance Corp., 897 S.W.2d 818 (Tex. App.—Houston [1st Dist.] 1994) (procedural rules on objection to affidavit defects)