Bruce v. K.K.B., Inc. - 52 S.W.3d 250 (Tex. App. 2001)

Rule:

Tex. R. Civ. P. 166a(i) allows a party, after adequate time for discovery and without presenting summary judgment evidence, to move for summary judgment on the basis that there is no evidence of one or more essential elements of a claim on which the adverse party would have the burden of proof at trial. In reviewing a no-evidence summary judgment, the appellate court applies the same legal sufficiency standard as in a directed verdict. A no-evidence summary judgment is proper if the respondent fails to bring forth more than a scintilla of probative evidence in support of one or more essential elements of a claim. Tex. R. Civ. P. 166a(i). It must consider all the record evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered.

Facts:

The decedent and a friend had dinner and drinks. Decedent was killed in an automobile accident after she apparently lost control of her vehicle and collided with vehicles driven by the appellants. Appellants sued appellee restaurant, alleging it had failed to refuse to serve alcoholic beverages to decedent even though it was apparent that she was obviously intoxicated. Appellee filed both a no-evidence summary judgment motion, and a traditional summary judgment motion. The district court granted summary judgment in favor of appellee restaurant. Appellants challenged the decision. 

Issue:

Was there a lack of evidence to show that the decedent was obviously intoxicated when they reached appellee restaurant, thereby warranting the grant of summary judgment in favor of appellee? 

Answer:

No.

Conclusion:

Circumstantial evidence tended to prove that decedent exhibited signs of intoxication while at the restaurant. The appellate court concluded appellants had raised more than a scintilla of evidence that it was apparent to appellee that decedent was obviously intoxicated to the extent that she presented a clear danger to herself and others. Likewise, it concluded appellee failed to conclusively establish, under its traditional summary judgment motion, that decedent’s intoxication was not apparent to the provider. Accordingly, the judgment was reversed and the case was remanded.