Carol A. Creely v. Corpus Christi Football Team, Inc. D/B/A Corpus Christi Hammerheads, Inc., Chad Dittman and City of Corpus Christi

NUMBER 13-06-705-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG CAROL A. CREELY, Appellant, v. CORPUS CHRISTI FOOTBALL TEAM, INC., D/B/A CORPUS CHRISTI HAMMERHEADS, INC., AND CHAD DITTMAN, Appellees. On appeal from the 105th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Justices Yañez, Garza, and Benavides Memorandum Opinion by Justice Garza Appellant, Carol A. Creely, appeals from the granting of a no-evidence motion for summary judgment, see Tex. R. Civ. P. 166a(i), and a traditional motion for summary judgment, see Tex. R. Civ. P. 166a(b), in favor of appellee, Corpus Christi Football Team, Inc., d/b/a Corpus Christi Hammerheads, Inc. ("Hammerheads"). By one issue, Creely contends there are fact issues precluding summary judgment. We affirm. I. Background Creely is the owner of Corpus Christi All-Star Gym, a facility where children are trained in tumbling, cheerleading, and other physical activities. Pursuant to a contract with the Hammerheads, she became an official sponsor of the Hammerheads Cheerleaders and Shark Attack Rowdy Squad. In exchange for various types of advertising, Creely agreed to organize half-time performances by the cheerleading and tumbling camp participants. During a football game, Creely was getting ready for a half-time performance and was standing 25 to 30 feet into what she describes as a "tunnel," which is located at the end of the stadium next to the stage. A football from the field flew into the tunnel and hit her, injuring her left thumb. The injury required surgery. Creely sued the Hammerheads for failing to exercise reasonable care in ensuring her safety during the football event. The Hammerheads moved for summary judgment on no-evidence grounds, alleging there was no evidence that: (1) the Hammerheads owed Creely a duty; (2) there was a breach of any duty, (3) she was injured as a result of any breach, or (4) any breach of that duty was the proximate cause of her injuries. In their traditional motion for summary judgment, the Hammerheads argued the affirmative defense of "assumption of risk". They argued that they proved their defense, that Creely assumed the risk of being injured, as a matter of law. The trial court granted the motions in their entirety. However, the trial court did not specify the grounds for granting the motions. II. Standard of Review The standards for reviewing summary judgment are well established. See Tex. R. Civ. P. 166a(c), 166a(i); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When a defendant moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a plaintiff's claim, the burden is on the plaintiff to present evidence to raise a genuine issue of material fact on each of the challenged elements on which the plaintiff has the burden of proof at trial. Tex. R. Civ. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.-Dallas 2000, no pet.). Under a traditional motion for summary judgment, the movant must establish that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). After the movant produces evidence sufficient to show it is entitled to summary judgment, the nonmovant must then present evidence raising a fact issue. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). When a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We first consider the no evidence motion for summary judgment and begin with analyzing the legal duty owed to Creely. III. Analysis To sustain a cause of action for negligence, Creely had to show (1) the existence of a duty, (2) a breach of that duty, and (3) damages proximately caused by the breach of that duty. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987). Duty is the threshold inquiry in all negligence cases, see Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993), and is a question of law for the court to decide from the facts surrounding the occurrence in question. Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). In her response to the motions for summary judgment, Creely attached a copy of the agreement she entered into with the Hammerheads. Clearly, by virtue of the agreement, Creely was an invitee on the premises. An "invitee" is defined as "a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage." Silva v. Spohn Health Sys. Corp., 951 S.W.2d 91, 94 (Tex. App.-Corpus Christi 1997); Tex. Power & Light Co. v. Holder, 385 S.W.2d 873, 885 (Tex. Civ. App.-Tyler 1964, writ ref'd n.r.e.). Creely's status as an invitee is undisputed. The general rule is that an owner or occupier of land has a duty to use reasonable care to keep the premises under his control in a safe condition and to use reasonable care to protect an invitee from reasonably foreseeable injuries. See Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985); Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex. 1975). This duty of reasonable care applies to stadium owners. Friedman v. Houston Sports Ass'n, 731 S.W.2d 572, 574 (Tex. App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.). (1) Thus, we conclude the evidence was sufficient to establish that the Hammerheads owed Creely a duty of reasonable care. Next, we consider whether there was a breach of that duty. In her appellate brief, Creely argues that she was "25-30 feet in a tunnel area where the playing field was not within view and where flying objects are not a foreseeable expectation. . . . Appellee was bound to exercise reasonable care commensurate with the circumstances of someone who was not a patron or spectator standing in an area where a patron or spectator would not be expected to be watching the sporting event. Appellee's duty was to protect such person against injury." In her response to appellee's motion for summary judgment, Creely attached excerpts from her deposition testimony as evidence. In her deposition testimony, Creely merely describes how the incident leading to her injury occurred. To defeat a motion made under paragraph 166a(i), the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements. Tex. R. Civ. P. 166a(i); Saenz v. So. Union Gas Co., 999 S.W.2d 490, 493 (Tex. App.-El Paso 1999, pet. denied). The rule explicitly provides, however, that in response to a no-evidence motion, the respondent must present some summary judgment evidence raising a genuine issue of material fact on the elements attacked, or the motion must be granted. Tex. R. Civ. P. 166a(i); see Michael v. Dyke, 41 S.W.3d 746, 751 (Tex. App.-Corpus Christi 2001, no pet.); Saenz, 999 S.W.2d at 494. Although the nonmovant is not required to "needlessly duplicate evidence already found in the court's file," she is required to ensure that the evidence is properly before the trial court for its consideration in ruling on the motion for summary judgment. Saenz, 999 S.W.2d at 494. Here, Creely's response did not set forth any argument or provide or direct the court's attention to any evidence demonstrating how the Hammerheads failed in their duty to protect her or how they should have protected her from this injury. Thus, she failed to meet her burden of presenting evidence to raise a genuine issue of material fact on how the Hammerheads breached their duty to her. Gen. Mills Rest., Inc. at 832; see Tex. R. Civ. P. 166a(i). Accordingly, we conclude the trial court did not err in granting appellee's no evidence motion for summary judgment. (2) The judgment of the trial court is affirmed. DORI CONTRERAS GARZA, Justice Memorandum Opinion delivered and filed this the 23rd day of August, 2007. 1. The majority of the cases cited by appellant and appellee deal with baseball stadium incidents and recognize that once the stadium owner has provided "adequately screened seats" for all those desiring them, the stadium has fulfilled its duty of care as a matter of law. Friedman v. Houston Sports Ass'n, 731 S.W.2d 572, 574 (Tex. App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.) (citing McNiel v. Fort Worth Baseball Club, 268 S.W.2d 244, 246 (Tex. Civ. App.-Fort Worth 1954, writ ref'd)). We see a distinction between baseball and football because of the nature of foul balls but, given our disposition, we do not reach the issue of how a football stadium owner fulfills its duty of care as a matter of law. 2. Because of our disposition, we need not address whether appellee's traditional motion for summary judgment was properly granted. See Tex. R. App. P. 47.1.