                          NUMBER 13-10-00355-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI—EDINBURG

MANUEL TUNCHEZ,                                                        Appellant,

                                            v.

FINS GRILL, LTD.,                                                       Appellee.


                    On appeal from the 105th District Court
                          of Nueces County, Texas


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Perkes
               Memorandum Opinion by Justice Perkes

       Appellant Manuel Tunchez appeals from the trial court‘s summary judgment

granted in favor of appellee, Fins Grill, Ltd. Because there is no evidence Fins Grill

owed Tunchez a duty or that it breached any duty when its employee opened a door

into Tunchez, we affirm the trial court‘s judgment.
                       I. FACTUAL AND PROCEDURAL BACKGROUND

        In April 2007, Tunchez went to Fins Grill restaurant to make a delivery on behalf

of his employer, Sysco San Antonio, Inc.1                  While pulling a loaded dolly, Tunchez

approached the back door of Fins Grill.                   The dolly was in front of Tunchez and

Tunchez‘s back faced the door. As Tunchez started to turn around to open the door

with his right hand, a Fins Grill employee, Graham Williams, opened the door, causing

the door or its knob to strike Tunchez‘s back.2

        According to Tunchez‘s deposition testimony, Williams then turned his head

around and said, ―I‘m sorry, I didn‘t see you there.‖ When asked about the incident one

to two weeks later, Williams had no recollection of it. There is no evidence in the record

that Williams opened the door with unusual or excessive force. The door was a light-

weight, hollow metal door without a window or peep hole. Neither Tunchez nor Williams

could have seen through the door as he approached it.

        Tunchez estimated he made a total of four trips through the door that day. He

could not recall on which trip the door hit him, but testified he made additional trips

through the same doorway that day after the door hit him. Tunchez testified the incident

―could have‖ occurred on his second trip through the door.                        Tunchez never used

anything to prop or hold the door open. There is no evidence Tunchez or Williams saw

each other that day prior to the door hitting Tunchez.                     In his deposition, Tunchez

acknowledged there was no way Williams knew he was present outside the door.


        1
           Sysco San Antonio, Inc., f/k/a Sysco Food Services of San Antonio, Inc. and Sysco Food
Services of San Antonio, L.P., was a defendant in this lawsuit in the trial court, and the trial court granted
its motion for summary judgment. In his notice of appeal, Tunchez did not appeal from the summary
judgment granted in favor of Sysco.
        2
            At his deposition, Tunchez testified he does not know whether the door or its knob hit his back.

                                                      2
       Williams testified that deliverymen like Tunchez do not ―check in‖ on arrival at

Fins Grill. Instead, the unwritten procedure was for deliverymen to arrive at the back

door, enter, and start bringing in products, placing them in the dry storage area. As

loads were being brought inside, Williams would check them against an invoice and

place them in their proper storage place. After all of the products in a given delivery

were inside the back door, Williams would sign off on the invoice in the dry storage area

and give the invoice to the deliveryman. The back door of Fins Grill was only used by

employees and delivery personnel. There is no evidence that any Fins Grill employee

hit a person with the door prior to this incident.

       Tunchez sued Fins Grill alleging negligent activity on the part of its employee,

Williams, in the manner in which he opened the door. Tunchez alleged the incident

injured his back and that he required back surgery.3 Tunchez did not make a premises-

defect claim.       Fins Grill filed a traditional and no-evidence motion for summary

judgment, in which it argued it did not owe Tunchez a duty and there was no evidence

of a duty or breach of a duty to Tunchez. The trial court granted Fins Grill‘s motion for

summary judgment, and this appeal followed.

                                     II. ISSUES PRESENTED

       Tunchez presents three issues for review: (1) whether the trial court erred by

granting Fins Grill‘s motion for summary judgment; (2) whether Fins Grill affirmatively

disproved ―every‖ element of Tunchez‘s negligence cause of action so as to be entitled

to a traditional summary judgment; and (3) whether Tunchez presented sufficient

evidence to defeat Fins Grill‘s no-evidence motion for summary judgment.




       3
           Tunchez also admitted a history of back problems.
                                                   3
                             III. STANDARD OF REVIEW

      The standard of review for the granting of a motion for summary judgment

depends on whether the motion was brought on no-evidence or traditional grounds.

See TEX. R. CIV. P. 166a(c), (i); see also Franks v. Roades, 310 S.W.3d 615, 620 (Tex.

App.—Corpus Christi 2010, no pet.). A no-evidence summary judgment motion should

be granted if there is no evidence of at least one essential element of the plaintiff's

claim. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). The burden

of producing evidence is entirely on the non-movant and if the non-movant produces

evidence to raise a genuine issue of material fact, summary judgment is improper. TEX.

R. CIV. P. 166a(i). All that is required of the non-movant is to produce a scintilla of

probative evidence to raise a genuine issue of material fact on the challenged element.

Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). 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. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63

(Tex. 1983); see also Forbes, 124 S.W.3d at 172. More than a scintilla of evidence

exists when reasonable and fair-minded individuals could differ in their conclusions.

Forbes, 124 S.W.3d at 172; Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994).

      When deciding whether a disputed, material fact issue precludes summary

judgment, we take as true evidence favorable to the non-movant, indulge every

reasonable inference in favor of the non-movant, and resolve any doubts in the non-

movant‘s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985);

see also City of Keller v. Wilson, 168 S.W.3d 802, 825, 827 (Tex. 2005) (explaining

review of a ―no-evidence‖ motion for summary judgment is effectively restricted to the

evidence contrary to the motion).
                                           4
       When, as here, an order granting summary judgment does not specify the

grounds on which summary judgment was granted, a court may uphold it on any ground

presented in the motion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157

(Tex. 2004). When, as here, a party moves for a traditional summary judgment and a

no-evidence summary judgment, we will first review the trial court's judgment under the

no-evidence standard. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

If the appellant fails to produce more than a scintilla of evidence under that burden, then

there is no need to analyze whether appellee‘s summary-judgment evidence satisfies

the traditional rule 166a(c) burden. Id.

                                      III. ANALYSIS

       Fins Grill moved for summary judgment arguing there was no evidence it owed a

duty to Tunchez and no evidence it breached any duty to Tunchez. To prevail on a

negligence cause of action, a plaintiff must prove (1) the existence of a legal duty, (2)

breach of the duty, and (3) injury proximately caused by the defendant‘s breach.

Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1991).       Whether a

duty exists is a question of law for the court to decide based on the facts surrounding

the occurrence in question. Id.

       Duty concerns not subjecting others to an unreasonable, foreseeable risk of

harm. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 39 (Tex. 2002); Otis Eng’g Corp.

v. Clark, 668 S.W.2d 307, 311 (Tex. 1984) (discussing unreasonable risk of harm as

component of duty analysis); see also Keck, Mahin & Cate v. Nat. Union Fire Ins. Co.,

20 S.W.3d 692, 702 (Tex. 2000) (noting contributory negligence is that which creates an

unreasonable risk of harm to oneself). ―As Dean Prosser has observed . . . [‗n]o better

general statement can be made, than the courts will find a duty where, in general,
                                            5
reasonable men would recognize it and agree that it exists.‘‖ Otis Eng’g Corp., 668

S.W.2d at 310. (quoting W. PROSSER, THE LAW          OF   TORTS § 56 (4th ed. 1971)).      A

reviewing court balances several related factors to determine whether a defendant

owed a plaintiff a duty, including the risk, foreseeability, and likelihood of injury weighed

against the social utility of the defendant‘s conduct, the magnitude of the burden of

guarding against the injury, and the consequences of placing the burden on the

defendant. Phillips, 801 S.W.2d at 525; see also Allen Keller Co. v. Foreman, No. 09–

0955, 2011 WL 1458702, at *3 (Tex. April 15, 2011) (discussing factors in duty

analysis). Foreseeability of the risk is the foremost and dominant factor. See Phillips,

801 S.W.2d at 525.

       Tunchez argues that, taken together, his own testimony (that he did not ―recall

[on] what trip‖ through the door this incident occurred, but that ―it could have been on

the second trip‖ through the back door) and Williams‘s testimony (concerning his usual

practice of checking deliveries as loads were being brought inside) show Williams knew

or should have known Tunchez was on the other side of the door and Williams therefore

had a duty to use reasonable care to avoid hitting Tunchez. Tunchez points out that

Williams knew Fins Grill employees and deliverymen used the door.

       Tunchez cites Najera v. Great Atlantic & Pacific Tea Company to argue there is a

fact issue on foreseeability. 146 Tex. 367, 207 S.W.2d 365 (1948). Najera is inapposite

because it involved a premises condition and foreseeability of risk turning on a fact on

which there was conflicting testimony—whether bread pans were empty or filled with

dough. Id. at 366; see also Otis Eng’g, 668 S.W.2d at 310 (discussing unique duty

standard in premises-condition cases in light of Corbin v. Safeway Stores, Inc., 648

S.W.2d 292 (Tex. 1983)). Najera sued his employer for an injury he sustained when his
                                             6
right hand struck an iron latch on an open door in a baking plant. Najera, 207 S.W.2d at

366. Shortly before the accident, one of Najera‘s co-workers had opened the door,

causing the latch to be exposed. See id. When he hurt his hand, Najera was walking

backward pulling a truck of bread pans. Id. If the pans contained dough, as Najera‘s

co-worker testified, the door in the narrow hallway should have been open as it lead to a

―proof box‖ which heated the dough so that it would rise before being placed in the

oven. Id. at 366. If the pans were empty, as Najera testified, he needed to roll the truck

through a narrow hallway, past the closed door to the place where the pans would be

filled with dough. Id. On the facts presented in Najera, the Supreme Court of Texas

recognized a fact issue on foreseeability. Id. at 367.

       In this case, there is no evidence of foreseeability of risk as to raise a fact issue.

In claims supported only by meager circumstantial evidence, the evidence does not rise

above a scintilla if jurors would have to guess whether a vital fact exists.

City of Keller, 168 S.W.3d at 813.       Here, there is no evidence of a prior incident

involving opening of the door, and a jury would have to guess whether Williams had any

knowledge or reason to believe Tunchez or anyone else was approaching the back door

as Williams opened it. See Barton v. Whataburger, 276 S.W.3d 456, 463 (Tex. App.—

Houston [1st Dist.] 2008, pet. denied) (explaining danger is foreseeable if its general

character might reasonably be anticipated, if not its precise manner).          The lack of

evidence of foreseeability of risk forecloses the possibility of imposing a duty. See e.g.,

Allen v. Connolly, 158 S.W.3d 61, 67 (Tex. App.—Houston [14th Dist.] 2005, no pet.)

(holding aggravated sexual assault on employee was unforeseeable and therefore no

negligence duty existed for employer).



                                             7
       Further, as to the remaining duty factors, there is no evidence in the record that

weighs in favor of imposing a duty. There is no evidence of an unreasonable risk of

harm—the door is described as a light-weight, hollow metal door and there is no

evidence Williams opened it with excessive force. There is no evidence of any other

incident involving the door, suggesting the likelihood of injury is low. The social utility of

opening a door normally is high. This Court declines to impose a duty that would

unnecessarily hinder people in the course of the normal opening of doors in daily life.

       Even if we were to conclude a duty existed, there is no evidence Williams

breached any duty. In his reply brief, Tunchez identifies himself as the only source of

evidence concerning how Williams opened the door; Williams does not recall the

incident.   In his deposition testimony, Tunchez did not testify there was anything

unusual or forceful about how Williams opened the door. In his brief and reply brief,

Tunchez argues his orthopedic surgeon‘s testimony that his alleged back injury resulted

from an April 2007 injury, supports Tunchez‘s claim in this lawsuit that Williams was

negligent in opening the door.       Assuming for the sake of argument only that the

orthopedic surgeon‘s testimony could be used to bolster Tunchez‘s claim in this way, we

have reviewed the orthopedic surgeon‘s testimony in its entirety and it contains no

evidence of the manner in which the door was opened.

       Tunchez‘s orthopedic surgeon testified that he operated on Tunchez‘s back in

2001 following an injury that was reportedly sustained while pulling a load up a ramp.

Following that surgery, the orthopedic surgeon never released Tunchez from his care

because he had not made a complete recovery, and Tunchez did not complete his

course of post-surgery follow-up visits. In this case, the orthopedic surgeon testified

that it could not be determined from his examination of Tunchez and an MRI, whether
                                              8
the injuries alleged in this lawsuit resulted from an incident in April 2007 or were pre-

existing and related to the 2001 surgery. The orthopedic surgeon testified that in his

opinion, based on the patient‘s history, there was an onset of new symptoms as of April

2007 and the symptoms were not simple degeneration related to the 2001 surgery. The

orthopedic surgeon testified the new symptoms could have been caused by pulling a

loaded dolly—as Tunchez did before and after the alleged incident involving the door.

Tunchez‘s orthopedic surgeon did not testify the alleged injuries were caused by a door

striking Tunchez or offer any testimony concerning how the door was opened.

      We conclude there is no evidence Fins Grill owed a duty to Tunchez in the

normal opening of the door and there is no evidence Fins Grill, acting through its

employee, Williams, breached any duty toward Tunchez.           The trial court properly

granted Tunchez‘s no-evidence motion for summary judgment. Our holding today is

consistent with cases from other jurisdictions that have declined to impose liability for

normal opening of a door. Compare Quinones v. J.C. Penney Corp., Inc., No. 07-CV-

00370, 2008 WL 4371972, at *7 (D. Conn. Sept. 24, 2008) (holding a reasonable

person is not required to give notice prior to opening door of public restroom in a normal

manner); Richard v. McCrory Corp., 666 So.2d 371, 374–75 (La. App. 1 Cir. 1995)

(holding injury to child hiding near door was unforeseeable and therefore no negligence

duty) with Gallardo v. New Orleans Steamboat Co., 459 So.2d 1215, 1218 (La. App. 3

Cir. 1984) (affirming negligence judgment against common carrier whose employee

came through doors ―like a bat out of hell‖); McDermott v. Sallaway, 85 N.E. 422, 423–

24 (Mass. 1908) (finding evidence of negligence when employee knew of plaintiff‘s

presence and opened refrigerator door with such force that plaintiff was thrown forward

multiple steps). We overrule Tunchez‘s first and third issues on appeal. In light of our
                                            9
disposition of these issues, we do not reach Tunchez‘s second issue, which concerns

the propriety of granting a traditional summary judgment in favor of Fins Grill. See TEX.

R. APP. P. 47.1; Ford Motor Co., 135 S.W.3d at 600.

                                  IV. CONCLUSION

      Having overruled Tunchez‘s dispositive issues on appeal, we affirm the trial

court‘s judgment.



                                                _______________________________
                                                GREGORY T. PERKES
                                                Justice

Delivered and filed the
28th day of July, 2011.




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