Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of October 27, 2008

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Harris Methodist Fort Worth v. Jo Fawn Ollie, No. 02-07-00122-CV (Oct. 30, 2008) (Holman, J., joined by Dauphinot, J.; Walker, J., dissents with opinion). [Note: Both opinions are at the same link in one document.]: Held: The trial court did not err by denying Harris Methodist’s motion to dismiss Ollie’s suit for failure to file an expert report under chapter 74 of the civil practice and remedies code because Ollie’s allegations that Harris Methodist failed to properly maintain the wet hospital bathroom floor and to warn Ollie of the dangerous condition constituted a premises liability claim, not a health care liability claim.; Dissent: Because the direct liability negligence claim that Ollie asserts against Harris Methodist falls squarely within the statutory definition of a “health care liability claim” as a claimed departure from safety directly related to an act furnished by Harris Methodist to Ollie during her confinement in the hospital, Ollie was required to file an expert report. Ollie did not file an expert report, and the trial court erred by refusing to dismiss Ollie’s claims and by refusing to award attorney’s fees to Harris Methodist.

Durham v. Zarcades, No. 02-07-00398-CV (Oct. 30, 2008) (Livingston, J., joined by Dauphinot and McCoy, JJ.).: Held: Appellee, who as the trustee of two trusts owned a minority percentage interest in the Skyline Apartments for only fifteen days in July 2004, was entitled to summary judgment because he conclusively disproved the duty element of Appellants’ negligence, premises liability, and negligent activity claims, and the proximate cause element of Appellants’ negligence per se claim, stemming from a January 2005 sexual assault and aggravated assault in one of the complex’s units. Appellants failed to bring forward any evidence raising a genuine issue of material fact as to their assertions that Appellee created a dangerous condition by allowing crime to escalate or that he concealed a condition of which he knew or should have known. Moreover, evidence of criminal activity at the complex around the time of Appellee’s purchase and sale of his interests and later, around the time of the crime, was not sufficient to raise a genuine issue of material fact as to foreseeability.