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Opinion issued June 14, 2007











In The

Court of Appeals

For The

First District of Texas




NO. 01-06-00394-CV




ADDIE EVANS, Appellant



V.



MIPTT, L.L.C. D/B/A EAST COAST BUFFET, Appellee




On Appeal from County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 827320




MEMORANDUM OPINION


Appellant, Addie Evans, appeals a summary judgment rendered on no-evidence grounds on her strict-liability and negligence claims against appellee, MIPTT, L.L.C. d/b/a East Coast Buffet (the restaurant). Evans based her claims on allegations that she was food-poisoned after eating crab at the restaurant. In two issues on appeal, Evans argues that her summary judgment evidence barred rendition on no-evidence grounds. We affirm.

Facts and Procedural Background

After consuming two plates of crab and waiting for the crab serving area of the buffet to refill another plate, Evans suddenly became very ill and complained of stomach cramps, dizziness, and nausea. Symptoms progressed to severe diarrhea. Evans was transported by ambulance to Methodist Hospital, at her request, where she was diagnosed with acute gastritis. Evans was later discharged from the hospital. Two days later, she consulted her personal physician, who treated her for food poisoning. She was out of work for "a few days."

Evans's live pleadings allege that the crab consumed at the restaurant caused her food poisoning, for which she sought actual and exemplary damages. She claimed that the restaurant was (1) negligent, and (2) strictly liable as a preparer or server of food, for providing defective food that was unsafe for its intended purpose, consumption. Shortly before the case was set for trial for a second time, the restaurant moved for summary judgment pursuant to rule 166a(i), on the grounds Evans had no evidence to support her claims. After granting Evans additional time for discovery, the trial court signed an order that granted the restaurant's motion for summary judgment and rendered judgment that Evans take nothing on her claims.



Standard of Review

A trial court must grant a no-evidence motion for summary judgment if: (1) the moving party's motion asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the adverse party produces no summary judgment evidence that raises a genuine issue of material fact on those elements. See Tex. R. Civ. P. 166a(i); Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); see also Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) ("Unless the respondent produces summary judgment evidence raising a genuine issue of material fact, the court must grant the motion.") (quoting Tex. R. Civ. P. 166a(i)); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003) ("A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard [to both]."); Flameout Design & Fabrication, Inc. v. Pennzoil Corp., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.) ("Thus, a no-evidence summary judgment is similar to a directed verdict.").

Once the movant specifies the element or elements on which there is no evidence, the burden shifts to the nonmovant, who would have the burden of proof on those elements at trial, to produce evidence that raises a fact issue on the challenged elements. Tex. R. Civ. P. 166a(i); Flameout Design, 994 S.W.2d at 834.

The nonmovant need not "marshal its proof" in responding to a no-evidence motion for summary judgment and need only "point out" evidence that raises a fact issue on the challenged elements. See Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 722 (Tex. App.--Houston [1st Dist.] 2003, no pet.) (citing Tex. R. Civ. P. 166a(i) cmt to 1997 change); see also Robinson v. Warner-Lambert, 998 S.W.2d 407, 410 (Tex. App.--Waco 1999, no pet.) ("A no-evidence motion for summary judgment places the burden on the nonmovant to present enough evidence to be entitled to a trial."); Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L. Rev. 1303, 1356 (1998) ("[T]he mere filing of the motion shifts the burden to the respondent to come forward with enough evidence to take the case to a jury."). "Enough" evidence means more than a scintilla of evidence. Roventini, 111 S.W.3d at 722 (citing rule 166a(i)); see King Ranch, 118 S.W.3d at 751. 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, which, in legal effect, is no evidence. King Ranch, 118 S.W.3d at 751 (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). Evidence constitutes more than a scintilla when it enables "reasonable and fair-minded people to differ in their conclusions." King Ranch, 118 S.W.3d at 751 (citing Merrell-Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). In reviewing a no-evidence summary judgment, we apply the well-settled standards that require us to assume that all evidence favorable to the nonmovant is true and to indulge every reasonable inference and resolve all doubts in favor of the nonmovant. Tex. R. Civ. P. 166a(i) and cmt. to 1997 change; Sudan, 199 S.W.3d at 292 (citing City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)); King Ranch, 118 S.W.3d at 751; Flameout Design, 994 S.W.2d at 834. When, as here, a summary judgment does not specify the grounds on which it was granted, the appealing party must demonstrate on appeal that none of the proposed grounds is sufficient to support the judgment. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

Discussion

A. The Restaurant's Rule 166a(i) Motion

Though similar, products liability and negligence actions differ in their focus: products liability focuses on the product; negligence focuses on the conduct of the supplier. Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 181 (Tex. 2004).

In moving for summary judgment on Evans's product-liability claim, the restaurant asserted that (1) to prevail at trial, she would be required to show that the food in question was defective and unsafe for its intended purpose when she received it and (2) she had no evidence to support the claim. This contention challenged the "defective product" element of Evans's product-liability claim. See McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 789 (Tex. 1967) (citing Decker v. Capps, 164 S.W.2d 828 (Tex. 1942) as stating law of Restatement (Second) of Torts 402A (1965) for "foodstuffs for human consumption" and quoting and adopting rule of strict liability for "defective products [that] cause physical harm to persons"); Ayala v. Bartolome, 940 S.W.2d 727, 731 (Tex. App.--Eastland 1997, no writ) (holding that "raw oysters, being food, are products subject to [s]ection 402A") (citing McKisson, 416 S.W.2d at 789, and Restatement (Second) of Torts 402A); see also Tex. Civ. Prac. & Rem. Code Ann. 82.001(2) (Vernon 2005) (defining "products liability action").

In moving for summary judgment on Evans's negligence claim, the restaurant specified that (1) to prevail at trial, she would be required to show that the restaurant breached a duty to her and that damages resulted from the breach, and (2) she had no evidence to support the claim. This contention challenged all elements of Evans's negligence claim: (1) a legal duty owed by one party to another, (2) a breach of that duty; and (3) damages proximately caused by that breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Mathis v. RKL Design/Build, 189 S.W.3d 839, 844 (Tex. App.--Houston [1st Dist.] 2006, no pet.).

We hold that the restaurant's no-evidence motion sufficiently specified the challenged elements of her negligence and product-liability claims and, therefore, that the burden shifted to Evans to defeat the motion by presenting competent summary judgment evidence on both of her causes of action. Tex. R. Civ. P. 166a(i); Roventini, 111 S.W.3d at 722; Flameout Design, 994 S.W.2d at 834.

B. Response by Evans

Evans responded to the restaurant's no-evidence motion by arguing that the substantive law authorized her to rely on circumstantial evidence to prove both her product-liability and her negligence claims. Concerning her product-liability claims, Evans argued that becoming ill within "minutes of her eating the food while she was still at the [r]estaurant" constituted circumstantial evidence supporting her claims. Evans relied on portions of her own deposition, in which she testified that she did "not know[] of anyone else in that restaurant [who ate the] same crabmeat" and that "after her second plate she went back to the buffet tray" to get the "remaining crabs she had left before." Concerning her negligence claim, Evans acknowledged the required elements, but claimed that she satisfied all elements because the restaurant had breached its duty to her by providing food that was "unwholesome and unfit for human consumption and thereby caused her some damage." She produced no additional summary judgment evidence on the negligence claim and relied on the same evidence to which she had referred in response to the restaurant's contention that she had no evidence to support her product-liability claim.

C. Evans Produced "No Evidence" to Defeat Restaurant's Motion

This Court has long recognized that a party may rely on circumstantial evidence to prove a claim that a food product is defective. See Jim Dandy Fast Foods, Inc. v. Carpenter, 535 S.W.2d 786, 789 (Tex. Civ. App.--Houston 1976, no writ) (citing Herbert v. Loveless, 474 S.W.2d 732, 738 (Tex. Civ. App.--Beaumont 1971, writ ref'd n.r.e.)).

To constitute competent summary judgment evidence, however, the testimony of an interested witness like Evans must be "clear, positive, direct, otherwise credible and free of inconsistencies, and could have been readily controverted." Tex. R. Civ. P. 166a(c); see Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); see also Clark v. Pruett, 820 S.W.2d 903, 906 (Tex. App.--Houston [1st Dist.] 1991, no writ) (rejecting "[s]elf-serving statements of interested parties testifying about what they knew" as competent summary judgment evidence). To meet the competency standard, evidence must demonstrate personal knowledge, must positively and unqualifiedly state that the facts represented as true are true, and must not be conclusory. See Ryland Group, 924 S.W.2d at 122. In short, circumstantial evidence must be competent evidence.

1. Immediate Onset of Illness; Consumption of Crab by Evans Only

Evans's claim that she suddenly became intensely ill, even when taken together with her testimony that she "did not know" anyone else who ate crab and that she alone had consumed all the crab available at the buffet do not rise to a level that satisfies these standards. Evans's self-serving testimony that she "did not know," i.e., that she lacked knowledge that anyone else ate crab while she was dining, cannot establish that she knew, i.e., had personal knowledge that no one else consumed crab. See Clark, 820 S.W.2d at 906. The same is true of her perceptions concerning the presence of crab at the buffet table, or lack of it, as well as her perception that she had consumed any crab that was present--until she became ill--and her claim of immediate illness. See Ryland Group, 924 S.W.2d at 122 (declining to equate "understanding" to personal knowledge); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991); Clark, 820 S.W.2d at 906. Evans has cited no case, and we know of none, in which a claim of sudden illness, standing alone, is sufficient to create a fact issue to overcome a no-evidence motion for summary judgment.

2. City of Houston Inspection

Evans also relied on an inspection of the restaurant, which the City of Houston conducted on the day after she became ill, in response to her request. According to Evans, the inspection "showed serious and general health violations, each of which could have been the cause of the unwholesomeness of the food" she consumed (emphasis added). The violations Evans referred to were a temporary quarantine for the dishwasher, because of inadequate concentration of bleach in sanitizing, and food debris found on the can-opener roller.

Conclusory contentions by the party with the burden of proof concerning "possible" cause of illness fall short of evidence that constitutes more than a scintilla that the food Evans consumed was defective. Well-settled summary judgment principles proscribe according any probative effect to speculation or conjecture to defeat a motion for summary judgment. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006) (rejecting expert testimony as speculative); Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993) (stating, in context of traditional motion for summary judgment, that circumstantial evidence must comprise more than speculation or conjecture); Smith v. Landry's Crab Shack, Inc., 183 S.W.3d 512, 514 (Tex. App.--Houston [14th Dist.] 2006, no pet.) (holding same in context of expert testimony offered to defeat no-evidence summary judgment on claim that negligence of restaurant caused food poisoning); Proctor v. White, 155 S.W.3d 438, 443-44 (Tex. App.--El Paso 2004, pet. denied) (holding same in context of affidavits responding to no-evidence motion for summary judgment in will-contest case).

Moreover, examining the complete report of the City of Houston inspector reveals that he "observed [that] all the food at the buffet . . . [was] under proper temperature control," and also found "No wrongdoing on the handling." In an apparent attempt to weaken the probative effect, if any, of these comments, Evans argued that lack of confirmation of her complaint "was not conclusive because the crabmeat in question, if not finished[,] could have been thrown out" before the inspection. Once again, the prohibition against speculation controls. See Mack Trucks, 206 S.W.3d at 583; Browning-Ferris, 865 S.W.2d at 928; Smith, 183 S.W.3d at 514. More importantly, Evans's contention misplaces her summary judgment burden to respond to the restaurant's motion with competent summary judgment evidence that was sufficient to raise a triable issue of fact. Tex. R. Civ. P. 166a(i). Conjecture fails to meet that burden as a matter of law. See Mack Trucks, 206 S.W.3d at 583; Smith, 183 S.W.3d at 514; Browning-Ferris, 865 S.W.2d at 928.

3. Reliance on Appendix of "Proof" without Referring to It

Evans's response also referred to an appendix to her motion, consisting of "affidavit[s], discovery[, her] pleadings and deposition excerpts, [and] medical affidavits" Evans did not refer more specifically to any of these in her response, but simply argued that they "set forth" summary judgment proof of "material facts" concerning her strict liability claim.

Much of that to which Evans refers, however, does not qualify as summary judgment evidence. Pleadings, including a verified response to a motion for summary judgment, as Evans filed here, do not constitute summary judgment evidence. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Flameout Design, 994 S.W.2d at 838. Likewise, a party may generally not rely on its own answer to an interrogatory, as Evans does here, as summary judgment evidence. Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000). General references to a record, without directing the court or the opposing party to the evidence on which the movant relies, are also insufficient. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989); Proctor, 155 S.W.3d at 444.

The remaining documents on which Evans properly relied in opposing the restaurant's no-evidence motion and that we may properly consider include excerpts from her deposition, which confirm the facts that she stated in her petition. In addition, there are several copies of treatment records from Methodist Hospital. These disclose that Evans was diagnosed with acute gastritis and that Evans was "ambulatory" on discharge. These papers also include correspondence from the director of emergency services to the restaurant's insurance carrier, written at Evans's request. This letter asks the carrier to reconsider its decision to deny coverage for Evans's food-poisoning claim, but does not confirm that diagnosis. Copies of records from Evans's personal physician include a note to her employer, in which the physician states that she was treated for food-poisoning, but nothing in the records refers to the crab consumed at the restaurant as either a defective product or spoiled food. The same is true of the billing records that Evans also included in the appendix. Reviewing the summary judgment evidence provided by Evans, we conclude that she did not meet her burden to present an issue of material fact on either the "defective product" element of her strict liability claim, or the breach of duty and causation elements of her negligence claim, in response to the restaurant's no-evidence motion. We reach this conclusion because the evidence that Evans provided is so weak that it creates no more than mere surmise or suspicion and is, therefore, in legal effect, no evidence. See Kindred, 650 S.W.2d at 63; Proctor, 155 S.W.3d at 444.

For these reasons, we overrule Evans's first and second issues.

Conclusion

We affirm the judgment of the trial court.





Davie L. Wilson,

Retired Justice



Panel consists of Justices Keyes, Higley, and Wilson. (1)

1. The Honorable Davie L. Wilson, retired justice, sitting by assignment.