Razo v. Home Depot U.S.A., Inc.
Filing
28
Memorandum Opinion and Order... The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted and that all claims and causes of action asserted by plaintiffs against defendant be, and are hereby, dismissed. (Ordered by Judge John McBryde on 5/11/2015) (wxc)
U.S. DISTRICT COURT
..• NORTilERN DISTRICT OFTEXAS
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FILED
IN THE UNITED STATES DISTRIC couR---'~-'-'-"-'----,
NORTHERN DISTRICT OF TE AS
MAY I I 2015
FORT WORTH DIVISION
JOSE RAZO, INDIVIDUALLY AND AS
NEXT FRIEND OF C.S. AND K.S.,
Plaintiffs,
vs.
HOME DEPOT U. S . A. , INC.,
Defendant.
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CLERK, U.S. DISTRICT COURT
llY--n;:-::::-;::----
Dcputy
NO. 4:14-CV-428-A
MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion for summary judgment of defendant, Home Depot U.S.A., Inc.
After having considered such motion, the response thereto of
plaintiffs, Jose Razo ("Razo"), Individually and as Next Friend
of Christina Springfield and Keith Springfield, the entire
summary judgment record, and pertinent legal authorities, the
court has concluded that the motion is meritorious and that all
claims asserted by plaintiffs against defendant should be
dismissed.
I.
Background
This action was initiated in the District Court of Tarrant
County, Texas, 236th Judicial District, on April 7, 2014, by the
filing by plaintiffs of their petition, naming Home Depot U.S.A.,
Inc., as the defendant.
The factual bases for plaintiffs' claims
against defendant were, as alleged in their state court pleading,
as follows:
6.
On or about the 1st day of September 2012,
Plaintiff Jose Razo and his grandchildren, Christina
and Keith Springfield, were invitees in the Home Depot
located at 133 Sycamore School Road, Fort Worth, TX.
Plaintiff Jose Razo took his lawn mower to Home Depot
for the purpose of Home Depot repairing the lawn mower.
An employee of Home Depot instructed Jose Razo to lift
the front of the lawn mower up and the lawn mower cut
off four of Jose Razo's fingers, two on his left hand
and two on the right hand.
Plaintiff's grandchildren
witnessed the incident and have been traumatized.
Plaintiff Jose Razo has sustained severe physical
injuries and damages.
7.
As a result, Plaintiff, sustained injuries to
his right and left hands.
Said occurrence was not
caused by or contributed to by Plaintiff, nor did the
same occur through any fault or negligence on the part
of Plaintiff, but was caused solely by the acts,
wrongs, and/or omissions of Defendant, and/or its
agents, servants and/or employees, officers, viceprincipals or those acting by, through or under them.
As a result of said acts and/or omissions, Plaintiff
sustained and continues to sustain injuries and damages
which will be set our more fully hereinafter.
Notice of Removal, Ex. B-2 at 2-3, ~~ 6-7.
On June 10, 2014, defendant removed the action to this court
based on diversity jurisdiction.
The court ordered plaintiffs to
re-plead by July 18, 2014, in compliance with the federal court
pleading standards.
Rather than to re-plead by the July 18
deadline, plaintiffs filed a document titled "Agreed Motion for
Extension of Time to File Motion for Leave to File First Amended
Complaint and Brief in Support."
Plaintiffs' description in the
2
Agreed Motion of the occurrence in question was revised as
follows:
10. Both the mechanic and Plaintiff Jose Razo
tried to start the lawnmower and the mechanic ended up
at the controls of the lawnmower. The mechanic told
Plaintiff Razo to pick the lawnmower up.
Plaintiff
Razo did not understand at first.
The mechanic
repeated again to Mr. Razo that he should pick up the
lawnmower. Mr. Razo was not aware the lawnmower was
running when he did as instructed by the mechanic.
When he picked up the lawn mower, the blades of the
lawnmower cut off part of four of Jose Razo's fingers.
Agreed Mot. for Ext. at 3, , 10.
The motion was accompanied by
an appendix containing a proposed first amended complaint naming
as an additional defendant, Matthew Matney ("Matney"), the
employee of defendant who allegedly instructed Razo to lift the
front of the lawn mower up.
In that proposed amended complaint
plaintiffs' description of the occurrence was the same as the
revised version contained in the Agreed Motion except that the
words "the mechanic" were replaced each time by the words
"Defendant Matney."
Id., App. at 3, , 10.
Before the court had ruled on the July 18 Agreed Motion,
plaintiffs filed on July 25, 2015, a document titled Motion to
Amend Pleadings, Join Party, and Remand, and Brief in Support,"
which was accompanied by a new version of a first amended
3
complaint, which, this time, alleged plaintiffs' third version of
the occurrence as follows:
10. Home Depot has provided a video (without
audio) of the incident on July 22, 2014. The video
provided begins with Mr. Matney and Mr. Razo already
looking at the lawnmower indoors.
In the video, Mr.
Matney and Mr. Razo are looking at the lawnmower and
Mr. Matney was working on the lawnmower. Mr. Razo then
goes to the controls of the lawnmower while Mr. Matney
continued to stay at the base of the lawnmower. Mr.
Razo started the mower. Mr. Matney then went to the
controls of the lawnmower and Mr. Razo went to the base
of the mower. Mr. Matney tells Mr. Razo to pick the
lawnmower up.
Mr. Razo did not understand at first.
Mr. Matney repeated again to Mr. Razo that he should
pick up the lawnmower. When Mr. Razo picked up the
lawnmower, the blades of the lawnmower cut parts of six
of Jose Razo's fingers, including the partial
amputation of two fingers.
Mot. to Amend, Ex. A at 3-4,
~
10.
Defendant opposed plaintiffs' motion to join Matney as a
defendant because such a joinder would defeat diversity
jurisdiction.
The court agreed, and by memorandum opinion and
order signed August 6, 2014, the court denied plaintiffs' motion;
and, the court again ordered plaintiffs to file an amended
complaint that would be in compliance with the rules of this
court.
Such an amended complaint was filed on August 11, 2014.
is the current live pleading of plaintiffs.
It
In it, the
description of the occurrence in question was the same as the
third revision plaintiffs alleged in their July 25 filing.
4
1st
Am. Compl. at 3, ,
9.
Plaintiffs alleged that the occurrence was
caused by the negligence of defendant in several respects,
including negligent hiring, supervision, training, and retention
of Matney as an employee.
In addition, plaintiffs alleged that
the occurrence resulted from gross negligence on the part of
defendant.
Razo alleged that his primary language is Spanish, although
he understands some English, and that Matney's primary language
was English.
Id. at 3, ,
8.
The motion for summary judgment under consideration was
filed by defendant on April 9, 2015.
II.
The Motion and the Response
A.
Grounds of Defendant's Motion. and Its Supporting Summary
Judgment Evidence
The grounds of defendant's motion were that (1) defendant
did not owe Razo a duty to protect him from his own conduct in
putting his hand in the blades of a running lawn mower,
(2)
plaintiffs cannot adduce evidence of probative value that
defendant breached any duty owed to Razo,
(3) there is no
evidence that any conduct on the part of defendant was a
proximate cause of Razo's injuries,
(4) Razo's own actions were
the cause-in-fact of his injuries and were unforeseeable as a
5
matter of law,
(5) there is no evidence to support plaintiffs'
claims of negligent hiring, supervision, and retention, and (6)
there is no evidence to support plaintiffs' claim that defendant
was grossly negligent.
The motion was accompanied by excerpts of Razo's oral
deposition taken December 8, 2014, in which Razo made the
following admissions:
He works as a mechanic with industrial machinery.
App. at 10.
Mot.,
From all the work he had done as a mechanic in his
career, he knew better than to stick his fingers under a lawn
mower while the blades were spinning.
Id. at 15.
He gave the following description of the occurrence:
Q.
Were you trying to lift it up at the time the
accident happened?
A.
Yes, that's right.
Q.
And were you trying to do it in a way where
your fingers would -- would not touch the blades?
A.
I was not thinking of that.
I just lift it.
Q.
And why did you want to lift it up?
A.
Because me, by picking it up, it was how it
was like leaking gasoline.
Like the tempo (sic)
turned.
Even though you turn the -- if you turned it,
it should not like leak, but it was -- it had a defect.
Q.
So what -- when you were lifting it up, you
wanted to look underneath to see if it was leaking?
A.
Exactly.
6
Q.
And so you were the one that started the
mower just before the accident happened, right?
A.
Id. at 10-11.
Yes.
And, as to what the employee of defendant said to
him just before he put his fingers into the moving blades, he
testified:
Q.
And what words did the Home Depot employee
say to you just before you went to lift up the mower?
A.
He told me, You go check -- check it.
Check
it for any leaks.
It was on. That was the problem.
The only thing was not to leak.
So I just went and
lifted it.
I knew I might cut my fingers, but -Id. at 11-12 (emphasis added).
The attorney for plaintiffs
interrupted Razo to prevent him from finishing his answer.
That,
understandably, led to an exchange between the attorneys
concerning the inappropriateness of the conduct of plaintiffs'
attorney.
Id. at 12.
The attorney's interruption apparently
worked, because when again asked to explain what was said by the
employee of defendant before Razo reached down and put his hands
into the spinning blades, Razo added that the employee told him
to "pick it up," saying:
Q.
Do you recall any other words that he said
before you put your fingers where you did? I'm asking
you only about words.
Only he said, Go check it out.
Go check
it out.
Pick it up for leaks, leaking.
I was only
able to -- to get that.
A.
No.
7
Q.
So you heard him say, Check it out, pick it
A.
Yes.
Q.
And you spoke English so -- enough English to
know exactly what that meant, right?
A.
I understood that what he told me, the little
that I understand, I was able to hear that.
Id. at 13
(emphasis added).
Also included in the appendix to the motion was a disk
containing the video of the events leading up to the accident,
and the occurrence of the accident itself.
It started showing
Matney bending down, while in front of the mower, working to his
right on the left side of the mower.
Razo appears to be situated
on his knees to Matney's right, apparently watching what Matney
was doing.
Next, Razo stands up and goes back behind the handle
of the mower, where the controls are, and apparently starts the
mower by pulling the starter cord.
Then Matney stands up and
goes to the back of the mower and holds the handle as Razo moves
to the left side of the mower and immediately stoops down on the
left side of the mower and puts his hands under the left side of
the mower.
As soon as he does that, he jumps back, obviously
having been injured.
The appendix also contained admissions made by Razo in
response to requests for admissions served on him by defendant.
8
Included were admissions that
(1) Razo knew the lawn mower engine
was on when he put his fingers where they were at the time the
accident happened, Mot., App. at 19;
(2) he could hear the sound
being made by the lawn mower engine just before he put his
fingers where they were at the time the accident happened, id. at
20;
(3) he was the last person to start the lawn mower prior to
the accident;
(4)
the lawn mower continued to run between the
time he last started it and the time the accident happened;
(5)
before the occurrence of the accident he had experience operating
gas-powered lawn mowers generally, id. at 21; and (6) the lawn
mower involved in his accident was a gas-powered lawn mower; id.
at 19.
B.
Plaintiffs' Response to the Motion and Its Supporting
summary Judgment Evidence
Plaintiffs responded to the grounds of defendant's motion
that defendant owed a duty to exercise reasonable care to protect
Razo from known or discoverable dangerous conditions in the store
and the duty to exercise reasonable care to avoid foreseeable
injury to Razo, and that defendant breached that duty, and that
defendant's negligence proximately caused Razo's injuries.
As to
plaintiffs' negligent hiring, supervision, and retention claims,
plaintiffs maintained in their response that Matney was not
competent to handle lawn mower repairs when he was hired, he was
9
not properly trained, and he was not adequately supervised on the
date of the occurrence and, Razo responded as to his gross
negligence claim that he has raised a fact issue as to that
claim.
Plaintiffs argued that the Texas proportionate liability
statute, sections 33.001 through 33.003 of the Texas civil
Practice & Remedies Code, is applicable to this case, Pls.' Br.
in Supp. of Resp. at 14; and, plaintiffs contended that
"[t]herefore, Home Depot's argument that Mr. Razo was, in effect,
the sole cause or totally at fault in the incident fails given
the evidence of Home Depot's negligence," id.
The appendix to the response contained a declaration of Razo
that advanced yet another version of the occurrence, stating
that:
After Mr. Mattney [sic] repaired the lawnmower, I
went to the base of the lawnmower and Mr. Mattney [sic]
was the controls. While I was at the base of the
mower, Mr. Matney told me to check it out and to pick
the lawnmower up.
I did not understand at first.
Mr.
Matney repeated again to me that I should pick up the
lawnmower.
When I picked up the lawnmower, the blades
of the lawnmower cut parts of six of my fingers,
including the partial amputation of two fingers.
The
attached picture of my injuries shows the extent of my
injuries.
I originally believed that I did not start the
lawnmower at Home Depot and that the lawnmower was not
running when I did as instructed by Mr. Matney.
However, after review of the video, I understand that I
started the lawnmower and the lawnmower was running at
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the time I was instructed to pick it up.
I did not
believe that picking up the lawnmower at the spot where
I picked it up would result in iniuries.
Resp., App. at 2 (emphasis added) . 1
Two statements that Matney gave pertaining to the
occurrence, one on the date of the occurrence and the other the
following day, were included in the appendix.
In his first
statement, Matney described what happened immediately before and
at the time of the accident by saying:
I checked my work and confedent that my adustment had
solved the problem I asked the customer to shut the
engin down but I don't believe that he understood so I
stood up and took the controles from him.
at this
point as I was about to shut the motor down myself I
hurd what I belived to be the two children playing with
a tool so looking to check on them my line of sight was
off the man for a moment.
as I looked back towards the
man I heard a noise similar to a hand druming on a
table only much louder and then saw that the man was
'Razo's statement that he "did not believe that picking up the lawnmower at the spot where [he]
picked it up would result in injuries" is at variance with his deposition testimony, as follows:
Q. Okay. When you-- when you put your fingers where you did, you knew that
you needed to keep them away from the blades, right?
A. I didn't have time to think anything. I just lift the machine. That's it. l
didn't think.
Mot. App. at 7 (emphasis added).
Q. Were you trying to lift it up at the time the accident happened?
A. Yes, that's right.
Q. And were you trying to do it in a way where your fingers would --would not
touch the blades:
A. I was not thinking of that. I just lift it.
!d. at I 0 (emphasis added).
11
holding his hands together with a pained expression on
his face.
Resp., App. at 36-37
(errors in original).
In the statement he
gave the following day, Matney elaborated to an extent, saying:
The customer had said that the mower was leaking
gas so I inspected it and the fuel pan had come loose
so I put it in the corect position and retightened the
bolt.
the mowe being repaired I asked the customer to
start it so that I could check my work and then asked
him to shut it down.
he didn't seem to under stand so
I stood up and took the controle as I was trying to
explain what I had done to fix the problem.
Knowing that this type of mower will not run
without the blades engaged and assuming that the were I
at no point indacated to the customer that they were
not but he proceded to crouch down and put his fingers
under the mower deck into the path of the blades.
as I took the engagement bar from the customer and
he moved towards the front of the mower I kept the
mower on so that he could see that the leak had stoped
assuming he knew to only look and not atempt to touch
or move the mower in any way.
I never asked him to
inspect the blades and he did not indacat that he was
planing to or that there was a problem with them.
Id. at 40-41 (errors in original).
Plaintiffs' appendix also contained pages from an oral
deposition given by Matney in January 2015.
Those pages appear
not to have included Matney's full description of the events that
occurred immediately prior to and at the time of the accident.
However, they included the following explanatory testimony:
Q.
Okay.
So on the second time when you told
him to turn it off, did he turn it off?
A.
No.
12
Q.
So what did you do next?
A.
Well, I didn't do anything. He asked in
instead of turning it off, he asked, "Can I see?"
Q.
Okay.
And is that the words, exact words he
A.
I don't recall exactly.
Q.
But you got the impression that he wanted to
used?
see?
A.
Yeah, he wanted to see that it wasn't leaking
oil while it was running.
Q.
And what did you say?
A.
I told him,
"Sure."
Q.
Did you -- were you aware at the time that he
asked you if he could see it that the lawn mower was
still running?
A.
Yes, I was.
Q.
Why had you told him to turn it off before?
A.
Yes.
Q.
At that point did you know that the lawn
mower was running?
A.
Yes.
Q.
At that point were you aware that you had
instructed Mr. Razo to turn the lawn mower off?
A.
Yes.
Q.
Okay. At that point when you got to the
controls, could you have turned the lawn mower off?
A.
Yes, I could have.
13
Q.
All right.
A.
Did you turn the lawn mower off?
No.
Q.
As you got up to the controls, what happened
next or what was said next?
A.
As I got to the controls, he got down on his
knees and leaned down, like he was just looking at the
bottom of the motor itself, where the fuel pan's
located.
Q.
Okay.
And then what happened next?
A.
I averted my eyes for a second.
And I -- I
just heard the sound of something get caught in the
blade and I shut the mower down.
Q.
Okay. And you came to understand that -that Mr. Razo's fingers had been caught in the lawn
mower; is that correct?
A.
Yeah.
Immediately, as I looked down, I
realized what had happened.
Q.
From the time that Mr. Razo asked if he could
see, was there any conversation or any discussion or
words exchanged between you and Mr. Razo till the time
that he fingers got caught?
A.
No, sir.
Id. at 17-19.
Q.
At any time from the time he arrived until
his hands got caught under the lawn mower, did you
instruct Mr. Razo about the dangers of placing his
hands under the lawn mower?
A.
No,
I didn't.
Q.
At any time did you give any safety
instructions to Mr. Razo while he was there that day?
A.
No, I didn't.
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Id. at 19-20.
III.
Analysis
A.
Pertinent Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed. R. Civ.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,
"since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.
Id. at 324; see also Fed. R. civ. P. 56(c)
asserting that a fact .
("A party
is genuinely disputed must support
the assertion by . . . citing to particular parts of materials in
15
the record
.").
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574,
587,
597
In Mississippi Prot. & Advocacy
(1986).
Sys. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law. 2
Celotex Corp., 477 u.s. at 323.
If the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
Advocacy Sys., 929 F.2d at 1058.
B.
As a Matter of Law Plaintiffs Have No Right of Recovery
Against Defendant
"It is common knowledge by every user of a lawn mower that
serious injury will result if a hand or foot comes in contact
2
ln Boeing Co. v. Shipman, 411 F.2d 365,374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
16
with the blades while the mower is in operation."
Blackwell Burn
Co., Inc. v. Cerda, 644 S.W.2d 512, 516 (Tex. App.--San Antonio
1982, writ ref'd n.r.e.).
As a consequence, tort claims brought
by such a user frequently end with adverse rulings as a matter of
law.
See Kuras v. International Harvester Co., 820 F.2d 15, 17-
18 (1st Cir. 1987) (directed verdict upheld); Mele v. Turner, 720
P.2d 787, 790-91 (Wash. 1986) (affirming summary judgment on duty
and breach issues); Ragsdale v. K-Mart Corp,, 468 N.E,2d 524, 527
(Ind. App. 1984); Myers v. Montgomery Ward & Co., 252 A.2d 855,
862-63
(Md. App. 1969); Kientz v. Carlton, 96 S.E.2d 14, 20 (N.C.
1957) (involuntary nonsuit affirmed); Murphy v. Cory Pump Supply
Co., 197 N.E.2d 849, 858 (Ill. App. 1964).
In the instant
action, Razo admitted he had that knowledge when he intentionally
put his hands under the side of the lawn mower while the blades
were spinning.
In other words, he intentionally engaged in
conduct that he knew to be dangerous.
Accepting at face value
Raze's testimony, he did what he knew to be dangerous because he
simply was not thinking.
Immediately before his attorney
interrupted his answer, Razo even went so far on his deposition
to admit "I knew I might cut my fingers."
Under Texas law,
elements:
Mot., App. at 12,
"[n]egligence rests primarily upon two
(1) reason to anticipate injury, and (2)
failure to
perform the duty on account of that anticipation," and "[t]he
17
ability to have foreseen and prevented the harm is determinative
of responsibility."
Houston Lighting & Power Co. v. Brooks, 336
S.W.2d 603, 606-07 (Tex. 1960).
For the court to conclude that
defendant is liable to plaintiffs under the facts of this case
the court would have to arbitrarily and improperly impute
foresight to defendant.
Brooks, 336 S.W.2d at 606.
The summary
judgment record contains no evidence that would provide basis for
a finding that defendant should have foreseen that Razo would
have done what he did when he went to the side of the running
lawn mower and put his fingers up under the side into the
spinning blades.
Plaintiffs and their attorney have sought to overcome the
obvious lack of foreseeability on defendant's part by a creative
description of the occurrence.
They started by maintaining in
their state court pleading that Matney started the lawn mower
without Razo's knowledge and then instructed Razo to "lift the
front of the lawn mower up," and that as he was doing so the
blades of the mower cut his fingers.
Supra at 2.
Their initial
pleading implied that Razo was unaware that the lawn mower was
running when he stuck his hands into the blades.
Id.
Plaintiffs' next version had Matney and Razo both trying to start
the lawn mower when Matney told Razo to pick the lawn mower up,
an instruction that Razo said Matney repeated after Razo did not
18
understand the first time, and that Razo "was not aware the lawn
mower was running when he did as instructed by the mechanic."
Supra at 3.
Razo's fourth revision of his version of the occurrence,
which is found in the declaration his attorney put in the
appendix in support of plaintiffs' response to the motion for
summary judgment, included Razo's statement that "I did not
believe that picking up the lawn mower at the spot where I picked
it up would result in injuries."
Resp., App. at 2.
He thus
represented that he made a conscious decision to pick the lawn
mower up at a spot where he did not believe he would be injured.
This is quite a contrast with his deposition testimony that "I
didn't have time to think anything.
That's it.
I just lift the machine.
I didn't think," Mot., App. at 7, and, when asked if
he was "trying to do it in a way where [his] fingers .
would
not touch the blades," he answered "I was not thinking of that.
I just lift it, " id. at 3 5 .
Not until Razo and his attorney were shown the video that
depicted the occurrence did they admit that Razo was the one who
started the lawn mower, supra at 4, and that he knew that the
mower was running when he put his hand into the blades, id. at 9.
The video of the incident is telling.
It shows that after
watching the mechanic do the repair work, Razo went behind the
19
lawn mower, started it, and then, in a matter of just a few
seconds, went to the left side of the lawn mower (not the front,
as he first pleaded), and put his hands under the lawn mower into
its blades.
The video is incontrovertible evidence that Razo's
conduct was unforeseeable to Matney; and, the video evidence
confirms the total lack of credibility of Razo in his description
of the events leading to his injury.
Apropos is the ruling of
the Supreme Court in Scott v. Harris that "[w]hen opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts
for the purposes of ruling on a motion for summary judgment."
550 u.s. 372, 380 (2007).
The only credible version of the
occurrence is that given by the video evidence, as confirmed by
the statements of Matney.
While resolution of a credibility
issue is not normally the function of a court at the summary
judgment stage, there can be circumstances when the court can
properly conclude that no reasonable fact finder would accept the
version of events espoused by the summary judgment opponent.
This is one of those cases.
Even if the court were to assume, for the sake of
discussion, that defendant bears a degree of responsibility for
Razo's injuries, the court would agree with plaintiffs that
20
sections 33.001-33.003 of the Texas Civil Practice & Remedies
Code apply to this case.'
Pls.' Br. in Supp. of Resp. at 14.
Those sections provide that in actions to which they apply "a
claimant may not recover damages if his percentage of
responsibility is greater than 50 percent."
Rem. Code
§
33.001.
Tex. Civ. Prac. &
No rational finder of fact would find that
Razo's percentage of responsibility for his injuries is not
greater than fifty percent.
Put another way, any reasonable
finder of fact would find that Razo's responsibility for his
injury is greater than fifty percent.•
Therefore, in any event,
none of the plaintiffs may recover damages in this action.
The
bystander grandchildren do not have any cause of action if Razo
does not have one.
Ltd.,
See Estate of Barrera v. Rosamond Village
983 S.W.2d 795, 799 (Tex. App.--Houston [14th Dist.] 1998,
'While the motion does not cite to the Texas Civil Practice & Remedies Code, the court
interprets the wording of the motion and its supporting brief to contend, at least by inference, that the
summary judgment evidence establishes as a matter of law that Razo's conduct caused his responsibility
for the occurrence in question to be greater than fifty percent, thus denying him any right to recover
damages. See Tex. Civ. Prac. & Rem. Code§ 33.001.
4
ln Anderson v. Liberty Lobby. Inc., 477 U.S. 242 (1986), the Supreme Court said that the
standard for granting a motion for summary judgment "mirrors the standard for a directed verdict," which
is that "the trial judge must direct a verdict if, under the governing law, there can be but one reasonable
conclusion as to the verdict." ld. at 250. Or, as the Supreme Court said in Matsushita Electric Industrial
Co. v. Zenith Radio Corp., 575 U.S. 574,587 (1986), "[w]here the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there is no genuine issue for trial" (internal
quotation marks omitted); and, as the Fifth Circuit explained in Boeing Co. v. Shipman, 411 F.2d 365,
374 (5th Cir. 1969), "[i]f the facts and inferences point so strongly and overwhelmingly in favor of one
party that the Comt believes that reasonable men could not arrive at a contrary verdict, granting of the
motions is proper."
21
no pet.); Dawson v. Garcia, 666 S.W.2d 254, 261 (Tex. App.-Dallas 1984, no writ).
In view of the decisions the court has announced above, the
court is not required separately to decide viability in the
summary judgment context of plaintiffs' claims of negligent
hiring, supervision, training, and retention of Matney as an
employee or plaintiffs' gross negligence claim.
Suffice to say,
the court is satisfied that the summary judgment evidence does
not raise a fact issue in support of any of those claims.
IV.
Order
For the reasons stated above,
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted and that all claims and
causes of action asserted by plaintiffs against defendant be, and
are hereby, dismissed.
SIGNED May 11, 2015.
22
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