Addie Evans v. MIPTT, LLC, D/B/A East Coast Buffet

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.