## In the Court of Appeals Second Appell ate District of Texas at Fort Worth

______________________ _____ No. 02

- 20

- 00 011

- CV

___________________________

On A ppeal from the 96th D istrict Court Tarrant County, Texas Trial Court No. 096

- 300555

- 18

Before Sudderth, C.J.; Kerr and Birdwell , JJ. Memorandum Opinio n by Justice Kerr 

### L UELLA 

### S HAW 

### , Appellant

V


### . W ELLS 

### F ARGO 

### B ANK 

### , Appellee2 MEMORANDUM OPINION
Luel la Shaw appe als from the trial court ’ s sum mary

- judgment or der in Wells Fargo N

. A. ’ s favor on her premises

- liability claim

. Because Shaw did not produce
more than a scintilla of e vide nc e t hat the bank pro ximately c aused her injuries, we will

a ffirm the trial court ’ s judgmen t
. I. Ba ckground In April 2018 , Shaw visited one of the bank ’ s Fo rt Wo rth locations. Shaw, who

was using a walker, walked up t he han dicap ramp to acce ss the bank ’ s front ent rance. Upon l eaving th e bank, inste ad of going back down the handicap ram p , Shaw attempted to walk down the step located directly in front of the bank

. She tripped and
fe l l , sustaining a head laceration , a bro ken tibi a, and a cervical sprai n . Shaw sued t he ba n k f or “ prem ises li ab i li ty, negligence, a n d /or negli gence pe r

se , ” alleging that a pr emises condition posed an unreasonable risk of harm, the bank knew or should have known of the danger, the b ank brea ched a duty by either f ailin g to warn patrons of the dan ge r or by failing to ma ke the premises s a fe, and the bank ’ s breaches proximately caused her injuries. She also retained an expert, civil/structural engineer Norm an Cooper, who inspect ed the b ank ’ s premises.
After a n adequate time for di scovery h ad p assed , t he b ank move d fo r no

eviden ce summ ary judgment , a lleging that Shaw had failed to produce any evidence

on each of the four elements of her pre mises

- liability claim

. Shaw filed a response
suppor t ed by C ooper ’ s affidavit and exper t report, her m edica l records , and th e bank ’ s3 discovery re sponse s . The trial court granted the bank ’ s m otion with out specifying the grounds for its ruli ng a nd rendered a take

- noth ing judg ment ag ainst Shaw

. Sh a w ha s appeal ed, rais ing a si ngle issue: the trial court erred by gran t ing summary judg ment be cause she produced sufficient ev idenc e to ra ise a g enuine , material fact issue on

ever y ch allenged element of her premises

- li ability claim

. II. Stand a rd of Review
Und er Rule 166a(i), after an adequate time f or discovery, the party w ithout the burden of pro of may, without presenting evidence, move for summary judgment on the ground that no evide nce suppor ts a n es sential element of the nonmov an t ’ s claim

o r defense. Tex. R. Civ. P. 166a(i). The motion mus t specifically state the element s for
which no evidence e xists. Id

. ; Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex

. 2009). The trial court must gran t the mo tion unl ess the non movant pro du c es

summar y judgment eviden ce that raises a genuine, m aterial fact issue. See Tex. R. Civ.
P. 166a(i) & 1997 cmt.; Ha milton v. Wilson , 249 S.W.3d 425, 426 (Tex. 2008).
We review a no

- evidence summary ju d gmen t d e novo. See Starwoo d Mgmt., L LC
v. Swa im , 530 S.W. 3d 6 73, 67 8 (Tex. 2017)

. Wh en revie wing a no

- evidence summary judgment , we examine the entire record in the lig ht mos t favorable to the nonmovant,
ind ulging every r easonable inference and resolving any doubt s against the moti on. Suda n v. Sudan , 199 S.W.3d 291, 292 ( T ex. 2006). We re view a n o
- evidence summary judgment for evidence that would enable reasonable and fa ir

- min ded jurors to differ
in their conclusions. Hamilton , 249 S.W.3d at 426 (citing City o f Kel ler v. Wil son ,4 168 S.W.3 d 802, 822 (T ex. 2005)). We c redit e vidence favorabl e to the nonmovant if reasonable jurors could, and we disregard ev idence contrary to t h e n onmovant unless reasonable j urors could not. Timpte Indus. , 286 S.W.3d at 310 (citing Mack Trucks, I nc. v. T

amez , 20 6 S.W.3d 57 2, 582 (Tex

. 200 6)). I f the nonmovant b rings fo rward more than a scintilla of probative evidence that rai ses a g enuine issu e o f m aterial fact, then a no

evidence summary judgment is not proper. Smith v. O ’ Donnell , 288 S .W.3d 417,
424 (Te x. 2009) ; King Ranc h, Inc . v. C h apm an , 11 8 S.W.3d 742, 751 (Tex. 2 003).
III. Analysis In support of her only issue, Shaw ar gues that viewing he r su mmary

- judgment
evidence in a light most favorable to her, that evidence raised a genuine , mater ial fact
i ssu e on eac h element of her premis es

- li abilit y cl a im 1 : (1) We lls F arg o had actual or constructive knowledge of a condition on t he premises; (2) tha t co ndition posed an unreasonable risk of harm; (3) Wells Far go did no t exercise reasonable ca re to reduc e

or el im inate the risk of harm ; and ( 4) W el l s F argo ’ s failure to use suc h care
p ro ximately caused Shaw ’ s injuries. 2 See CMH Homes, Inc. v. Daenen , 15 S.W. 3d 97,

1 “ When the alleged inju ry is th e resul t of the condition of the premises, th e injure d party can recover onl y under a premises [

- ] li ability theory. ” Wyckoff v. George C. Fuller Co n tr acting C o. , 357 S.W.3d 157, 163 (Te x. App.

— Dallas 2011, no pet.) (citing H .E. Butt Grocery Co. v. War ner , 8 45 S.W. 2d 258 , 259 (Tex. 1992) ). Shaw pleaded a

“ cause of action for premises li ability, negligence , and/or negligence per se” alleging that a pre m is es con di tion caused her injuries. Shaw ’ s claim is thus a premises

- l iability claim. S e e id.

2 The b an k con ced e s that it controlled the prem ise s and tha t S haw w as an inv it ee .5 99 (Tex. 2000); see also Corbin v. Safeway Stores, Inc. , 648 S.W.2d 292, 296 (Tex. 1983).
Because the fourth element is dispositi ve , w e first address w h eth er Shaw ’ s sum mary

judg ment evidence raised a genuine, mate rial fac t iss ue on pro xi mate cau se . To create a material fact issue on pr oximate ca use, Shaw relied on Cooper ’ s affidavit and exper t report
. In his affidavit , Co o pe r s tate d that , in addition to
i ns p ecti ng t he premises , he reviewed the bank ’ s answers to Shaw ’ s int errogat ories , requests fo r produ ctio n, and req uests for admissions

. The bank had produced a surveillance video of the fall, but the video itself was not a tt ached as su mmary

judgment evidenc e . 3 Further, there is no affidavit or deposition f rom Shaw in which
she describes how her fa ll occu rred , nor did Cooper indicate that he spoke to Shaw

a bout how she fell. Cooper con cluded t hat the h andrails along side the s tep and the lack of an
in t ermediate handrail violat ed the Internation al Building Code and tha t, had the
handrails been i n comp liance with the code , Shaw “ would, more like ly than not , not have fallen to the ground at all or would h ave im p acted the ground with mat eriall y reduced fo rce. ” He f urt her concluded tha t the lack of ye llow cautionary paint on the
upp er hor izontal surface of the st ep “ was also a proximate c ause of Ms. S haw ’ s fall and inj ury. ”

3 Shaw i nc luded a photo graph of a CD labelled “ Surveillance , ” but th e surveillance video footage itself is nowhere in the record

.6 “ An expert ’ s simple i p se dixit is insuffi cient to est a blish a mat ter ; rather , th e expert must explain the basis of his statements to link his conclusion s to the facts. ”
Hanson v. Greysta r De v. & Constr., LP , 317 S.W.3d 850 , 853 (Tex. App.

— For t W orth 2010, pet. denied ) (citing City of San Antonio v. Pollock , 284 S .W.3d 80 9, 818 (Tex. 2009) ) ; see al so Earle v. Ratliff , 998 S .W. 2 d 882, 8 90 (Tex. 1999). An expert ’ s c onclusory

statements ar e n ot enou gh to raise a g enuine issue of material fact and, the refore,
cannot defeat s ummary judgm e nt. Hanson , 317 S.W.3d at 854 ( c iting IH S C edars
Treatm ent Ctr. o f Des oto, Inc. v . Mas on , 143 S .W. 3d 794, 803 (Tex. 2004 ) )

. An exp ert must
suppor t his opinions by fact s in evidence , not mer e specul ation and conjecture. I d. (citing Marathon Corp. v. Pitzne r , 10 6 S.W.3d 724, 729 (Tex. 2003 ) )

. In oth e r words, an
exp ert ’ s opinion may not be based upon the expert ’ s subjective interpretati on of the
facts

. Id. ( citing T XI Tran sp. Co. v. Hughe s , 306 S.W. 3d 230, 239 (Te x. 2010) )

. A party
need n ot object to the admi s sion of testimony to c omplai n that an expert ’ s concl usory opinions are legally insufficient e vidence

. 4 S ee i d. (citing Pollock , 284 S. W.3d at 816). Here, no fac ts e xist in the summary jud gment record that support Cooper ’ s

o pinions and conclusions that Shaw f e ll becau se of the non compliant handrails or the lack of yellow cautionary paint. See id. ; see also Marathon Corp. , 106 S. W.3 d at 72 8

– 29 (holding that co de vi ola tion, without more, did not prove that prem ises defe ct

cau s ed plaintiff ’ s fall) ; Aranda v. Wi l l ie Ltd. P ’ ship , No. 03

- 15

- 00670

- CV,

4 Wells Fargo ’ s only ob jection to Shaw ’ s summary

- judgment evide n ce was that Cooper ’ s expert repo rt was hear say.7 2016 W L 3136 884, at * 3 (Tex. App.

— Austin June 1, 2016, no pet.) (mem. op .) ( “ More importa ntly, t here is no eviden ce t hat t he expert witnessed the in cident and
his conclus ion that Aran d a ’ s fall was caused by the building

- code vio lations is not supported by any facts but is merely a conclusory statement

. ” )

. As a re sult , Cooper ’ s

con clusions

— whic h are b ased on mere speculat ion a nd conjecture

— cons titute n o evidence and cannot defeat summar y judgment. See Hanson , 317 S.W.3d at 8 54; see also
IH S Ced ars , 143 S .W.3d at 803

. Because Shaw ’ s summary

- judgment evidence failed to raise a material fa ct issue

on the challenged element of pro x ima te cause, the trial cou rt did not e rr by g ra nting
summary judgment for the bank

. S ee , e.g. , Carr v. B r asher , 776 S.W. 2d 567 , 569 (Tex.
19 89) ( “ When a tr ial court ’ s or der granting summary ju dgment does n ot specif y the
gro und or grounds relied on for it s rul ing, summary judgment w ill be affirmed on ap peal if any of the theories a d vanced a r e m erito rious. ” ). A ccordingly, we need not
address Shaw ’ s challenges to the other gro unds upon which the t rial court could have
g ranted s ummary judgment

. See Tex. R. App. P. 47.1

. We thus overrule Shaw ’ s sole
issue.
I V. Con clusion Having o verr uled Shaw ’ s only iss u e , we affir m the t rial court ’ s judgmen t.8 /s/ Elizabeth Kerr El izabeth Kerr Justi ce Delivered: September 3, 2020