
Opinion issued April 5, 2007














In The
Court of Appeals
For The
First District of Texas



NO. 01-06-00345-CV
____________

MIGUEL ALEMAN, Appellant

V.

BEN E. KEITH COMPANY, Appellee



On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 2005-11371



CONCURRING OPINION
	I join the majority opinion except in its discussion of the claim of appellant,
Miguel Aleman, against appellee, the Ben E. Keith Company ("Keith"), for Keith's
failure to properly maintain equipment.  Relying on premises liability cases, the
majority notes that Aleman produced no evidence that he was injured by the negligent
activity of Keith's failure to maintain the trailer in question.  However, as noted by
Aleman, his claim against Keith is a straight-forward negligence claim, not a premises
liability claim.
	Aleman asserts that he produced more than a scintilla of evidence that Keith
failed to maintain the refrigeration unit in its trailer.  He testified that Keith did not
perform its own required inspection of its trailers.  Aleman also notes that the hose
to the unit inside the pertinent trailer was improperly leaking water inside the trailer
on the day of the incident.  Moreover, the evaporator in the trailer had been fixed after
the incident because it was not working properly.
	However, the critical point is that Aleman presented no evidence establishing
the condition of the evaporator before the incident or whether a condition, if any, of
the evaporator should have been detected or repaired by Keith prior to the incident
as part of its duty to maintain the trailer.  See Simmons v. Briggs Equip. Trust, No. 01-05-00837-CV, 2006 WL 1766824, at *4 (Tex. App.--Houston [1st Dist.] June 29,
2006, no pet.).  Thus, Aleman presented no evidence that Keith breached its duty to
maintain the trailer.  See id.  It necessarily follows that he presented no evidence that
any such breach proximately caused his injuries.
	Accordingly, I agree with the majority that the trial court did not err in granting
Keith's no evidence summary judgment motion on Aleman's claim that Keith failed
to properly maintain its equipment.


							Terry Jennings
							Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Justice Jennings, concurring.
