Plaintiff's No Evidence MSJ
CAUSE NO XXXXXXXXXX
XXXXXXXXXX ' IN THE DISTRICT COURT OF
VS. ' XXXX COUNTY, TEXAS
XXXXXXXXXX ' JUDICIAL DISTRICT
PLAINTIFF=S ANO-EVIDENCE @
MOTION FOR SUMMARY JUDGMENT
REGARDING CONTRIBUTORY NEGLIGENCE
AGAINST DEFENDANT, XXXXXXXXXX
COMES NOW, Plaintiff, XXXXXXXXXX, and submits this Plaintiff=s ANo-Evidence@ Motion for Summary Judgment Regarding Contributory Negligence Against Defendant, XXXXXXXXXX, and pursuant thereto would respectfully show the Court as follows:
Defendant, XXXXXXXXXX, has alleged that in connection with the incident made the basis of the above styled and numbered cause that Plaintiff, XXXXXXXXXX, was contributorily negligent. Contributory negligence is an affirmative defense on which the Defendant has the burden of proof. Moore v. Kitsmiller, 201 S.W.3d 147, 151 (Tex.App.B Tyler 2006, pet. denied); see also Tex. R. Civ. P. 94.
ANo-Evidence @ Summary Judgment Standard
After an adequate time for discovery, the party without the burden of proof may move for summary judgment, with or without presenting evidence, on the basis that there is no evidence to support an essential element of the non-moving party's claim. Tex. R. Civ. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). First, the movant must specifically state the element as to which there is no evidence. Tex. R. Civ. P. 166a(i). The burden then shifts to the non-movant to produce competent evidence that raises a genuine issue of material fact on the challenged elements. See Johnson, 73 S.W.3d at 207; Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.B Houston [1st Dist.] 2000, pet. denied).
The Court must grant the motion unless the Respondent produces summary judgment evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i). A Ano-evidence@ summary judgment is essentially a pretrial directed verdict and the same legal sufficiency standard is applied in review of a Ano-evidence@ summary judgment as is applied in the review of a directed verdict. Roth v. F.F.P. Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex.App.B Amarillo 1999, writ. den.)
Adequate Time for Discovery
There has been adequate time for discovery in this case. The above styled and numbered cause against Defendant, XXXXXXXXXX, was filed on xxxxxxxxxxxxx. Written discovery has been completed and the depositions of the parties have been taken.
Argument and Authorities
The issue of contributory negligence has two elements, negligence and proximate cause. Negligence is the failure to use ordinary care, that is, doing what a person of ordinary prudence would not do, or failing to do what a person of ordinary prudence would do, under the same or similar circumstances. Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249, 250-251 (1943). Proximate cause is cause which in a natural and continuous sequence produces an event which would not otherwise have occurred and which a person using ordinary care would have foreseen. There may, of course, be more than one proximate cause of an event. Proximate cause thus has two elements. First, proximate cause must be sufficient and necessary; that is, it must be enough to make the event happen, and it must be such that without it the event would not have happened. This element is sometimes referred to as cause in fact. Second, the result must be reasonably foreseeable to a person using ordinary care. Nixon v. Mr. Property Management Corp., 690 S.W.2d 546,549-550 (Tex.1985). AIt is not required that the particular accident complained of should have been foreseen. All that is required is that the injury be of such a general character as might reasonably have been anticipated...Nixon, 690 S.W.2d at 551.
Edwards Transfer Co., Inc. v. Brown, 740 S.W.2d 47, 50 (Tex.App.B Dallas, 1986), aff=d., 764 S.W.2d 220 (Tex.1988).
There is no evidence that at the time and on the occasion in question that:
1) Plaintiff was negligent; or,
2) Plaintiff=s negligence, if any, proximately caused the incident and injuries in question.
Thus Plaintiff, XXXXXXXXXX, is entitled to a summary judgment as a matter of law.
WHEREFORE, PREMISES CONSIDERED, Plaintiff, XXXXXXXXXX respectfully prays that its Plaintiff=s ANo-Evidence@ Motion for Summary Judgment Regarding Contributory Negligence Against Defendant, XXXXXXXXXX be granted, that a partial summary judgment be entered in Plaintiff=s favor denying Defendant=s allegations regarding the contributory negligence of Plaintiff, and for such other and further relief to which Plaintiff may show itself justly entitled.
State Bar Number 06134750
Earl Drott Law
Bank of America Southeast Center
3301 Golden Road, Suite 411
Tyler, Texas 75701
Phone (903) 531-9300
Fax (903) 531-0221
Attorney for the Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been forwarded to the following counsel of record on this the ____ day of ____________________, 20___:
The submission date of this motion is _____________________.