Raul D. Bueno, Jr. v. City of San Antonio

No. 04-00-00597-CV Raul D. BUENO, Jr., Appellant v. CITY OF SAN ANTONIO, Appellee From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 99-CI-03780 Honorable Martha Tanner, Judge Presiding Opinion by: Sarah B. Duncan, Justice Sitting: Tom Rickhoff, Justice Catherine Stone, Justice Sarah B. Duncan, Justice Delivered and Filed: April 4, 2001 AFFIRMED Raul D. Bueno, Jr. appeals the trial court's summary judgment against him in his suit against the City of San Antonio for personal injuries sustained when Bueno fell into an open manhole while jogging. We affirm. Standard of Review We review a summary judgment de novo. Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex. App.-San Antonio 1997, writ denied). Accordingly, we will uphold a Rule 166a(c) summary judgment only if the summary judgment record establishes there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In deciding whether the summary judgment record establishes the absence of a genuine issue of a material fact, we view as true all evidence favorable to the respondent and indulge every reasonable inference and resolve all doubts in his favor. Id. Discussion Bueno contends the trial court erred in granting the City's motion for summary judgment because there are material issues of fact regarding whether the City had notice of the uncovered manhole and whether the uncovered manhole constitutes a special defect. We disagree for at least two reasons. First, Bueno waived these arguments by failing to raise them in his response to the motion for summary judgment. See Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). Second, even if the alleged defect was a special defect, Bueno was required to meet the City's motion by producing competent summary judgment evidence to raise an issue of fact regarding constructive notice to the City of the missing manhole cover; but Bueno at most provided his own statement that the City should have known of the possibility that the manhole cover could be removed by pranksters or children. See, e.g., Stokes v. City of San Antonio, 945 S.W.2d 324, 326 (Tex. App.-San Antonio 1997, no writ) (constructive notice required to establish liability for special defect); see also Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984) (conclusory statement insufficient to raise issue of fact). We therefore overrule Bueno's point of error and affirm the trial court's judgment. Sarah B. Duncan, Justice Do not publish