In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-20-00011-CV

___________________________

On Appeal from the 96th District Court

Tarrant County, Texas

Trial Court No. 096-300555-18

Before Sudderth, C.J.; Kerr and Birdwell, JJ.

Memorandum Opinion by Justice Kerr

LUELLA SHAW, Appellant

V.

WELLS FARGO BANK, Appellee
2

MEMORANDUM OPINION

Luella Shaw appeals from the trial court’s summary-judgment order in Wells 

Fargo N.A.’s favor on her premises-liability claim. Because Shaw did not produce 

more than a scintilla of evidence that the bank proximately caused her injuries, we will 

affirm the trial court’s judgment.

I. Background

In April 2018, Shaw visited one of the bank’s Fort Worth locations. Shaw, who 

was using a walker, walked up the handicap ramp to access the bank’s front entrance.

Upon leaving the bank, instead of going back down the handicap ramp, Shaw 

attempted to walk down the step located directly in front of the bank. She tripped and 

fell, sustaining a head laceration, a broken tibia, and a cervical sprain.

Shaw sued the bank for “premises liability, negligence, and/or negligence per

se,” alleging that a premises condition posed an unreasonable risk of harm, the bank 

knew or should have known of the danger, the bank breached a duty by either failing 

to warn patrons of the danger or by failing to make the premises safe, and the bank’s 

breaches proximately caused her injuries. She also retained an expert, civil/structural

engineer Norman Cooper, who inspected the bank’s premises.

After an adequate time for discovery had passed, the bank moved for noevidence summary judgment, alleging that Shaw had failed to produce any evidence 

on each of the four elements of her premises-liability claim. Shaw filed a response

supported by Cooper’s affidavit and expert report, her medical records, and the bank’s 
3

discovery responses. The trial court granted the bank’s motion without specifying the 

grounds for its ruling and rendered a take-nothing judgment against Shaw. Shaw has 

appealed, raising a single issue: the trial court erred by granting summary judgment

because she produced sufficient evidence to raise a genuine, material fact issue on 

every challenged element of her premises-liability claim.

II. Standard of Review

Under Rule 166a(i), after an adequate time for discovery, the party without the 

burden of proof may, without presenting evidence, move for summary judgment on 

the ground that no evidence supports an essential element of the nonmovant’s claim 

or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements for 

which no evidence exists. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 

2009). The trial court must grant the motion unless the nonmovant produces 

summary judgment evidence that raises a genuine, material fact issue. See Tex. R. Civ. 

P. 166a(i) & 1997 cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

We review a no-evidence summary judgment de novo. See Starwood Mgmt., LLC 

v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017). When reviewing a no-evidence summary 

judgment, we examine the entire record in the light most favorable to the nonmovant, 

indulging every reasonable inference and resolving any doubts against the motion. 

Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary 

judgment for evidence that would enable reasonable and fair-minded jurors to differ 

in their conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 
4

168 S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if 

reasonable jurors could, and we disregard evidence contrary to the nonmovant unless 

reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. 

Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant brings forward more than 

a scintilla of probative evidence that raises a genuine issue of material fact, then a noevidence summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417,

424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

III. Analysis

In support of her only issue, Shaw argues that viewing her summary-judgment 

evidence in a light most favorable to her, that evidence raised a genuine, material fact 

issue on each element of her premises-liability claim1

: (1) Wells Fargo had actual or 

constructive knowledge of a condition on the premises; (2) that condition posed an 

unreasonable risk of harm; (3) Wells Fargo did not exercise reasonable care to reduce 

or eliminate the risk of harm; and (4) Wells Fargo’s failure to use such care 

proximately caused Shaw’s injuries.2 See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 

1

“When the alleged injury is the result of the condition of the premises, the 

injured party can recover only under a premises[-]liability theory.” Wyckoff v. George C.

Fuller Contracting Co., 357 S.W.3d 157, 163 (Tex. App.—Dallas 2011, no pet.) (citing 

H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992)). Shaw pleaded a 

“cause of action for premises liability, negligence, and/or negligence per se” alleging 

that a premises condition caused her injuries. Shaw’s claim is thus a premises-liability 

claim. See id.

2

The bank concedes that it controlled the premises and that Shaw was an 

invitee.
5

99 (Tex. 2000); see also Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983).

Because the fourth element is dispositive, we first address whether Shaw’s summaryjudgment evidence raised a genuine, material fact issue on proximate cause.

To create a material fact issue on proximate cause, Shaw relied on Cooper’s 

affidavit and expert report. In his affidavit, Cooper stated that, in addition to 

inspecting the premises, he reviewed the bank’s answers to Shaw’s interrogatories, 

requests for production, and requests for admissions. The bank had produced a 

surveillance video of the fall, but the video itself was not attached as summaryjudgment evidence.

3 Further, there is no affidavit or deposition from Shaw in which

she describes how her fall occurred, nor did Cooper indicate that he spoke to Shaw 

about how she fell.

Cooper concluded that the handrails alongside the step and the lack of an 

intermediate handrail violated the International Building Code and that, had the 

handrails been in compliance with the code, Shaw “would, more likely than not, not 

have fallen to the ground at all or would have impacted the ground with materially

reduced force.” He further concluded that the lack of yellow cautionary paint on the 

upper horizontal surface of the step “was also a proximate cause of Ms. Shaw’s fall 

and injury.”

3

Shaw included a photograph of a CD labelled “Surveillance,” but the 

surveillance video footage itself is nowhere in the record.
6

“An expert’s simple ipse dixit is insufficient to establish a matter; rather, the 

expert must explain the basis of his statements to link his conclusions to the facts.”

Hanson v. Greystar Dev. & Constr., LP, 317 S.W.3d 850, 853 (Tex. App.—Fort Worth

2010, pet. denied) (citing City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 

2009)); see also Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). An expert’s conclusory 

statements are not enough to raise a genuine issue of material fact and, therefore, 

cannot defeat summary judgment. Hanson, 317 S.W.3d at 854 (citing IHS Cedars 

Treatment Ctr. of Desoto, Inc. v. Mason, 143 S.W.3d 794, 803 (Tex. 2004)). An expert must 

support his opinions by facts in evidence, not mere speculation and conjecture. Id.

(citing Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003)). In other words, an 

expert’s opinion may not be based upon the expert’s subjective interpretation of the 

facts. Id. (citing TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010)). A party 

need not object to the admission of testimony to complain that an expert’s conclusory 

opinions are legally insufficient evidence.

4 See id. (citing Pollock, 284 S.W.3d at 816).

Here, no facts exist in the summary judgment record that support Cooper’s 

opinions and conclusions that Shaw fell because of the noncompliant handrails or the 

lack of yellow cautionary paint. See id.; see also Marathon Corp., 106 S.W.3d at 728–

29 (holding that code violation, without more, did not prove that premises defect 

caused plaintiff’s fall); Aranda v. Willie Ltd. P’ship, No. 03-15-00670-CV, 

4

Wells Fargo’s only objection to Shaw’s summary-judgment evidence was that 

Cooper’s expert report was hearsay.
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2016 WL 3136884, at *3 (Tex. App.—Austin June 1, 2016, no pet.) (mem. op.)

(“More importantly, there is no evidence that the expert witnessed the incident and 

his conclusion that Aranda’s fall was caused by the building-code violations is not

supported by any facts but is merely a conclusory statement.”). As a result, Cooper’s 

conclusions—which are based on mere speculation and conjecture—constitute no 

evidence and cannot defeat summary judgment. See Hanson, 317 S.W.3d at 854; see also

IHS Cedars, 143 S.W.3d at 803.

Because Shaw’s summary-judgment evidence failed to raise a material fact issue 

on the challenged element of proximate cause, the trial court did not err by granting

summary judgment for the bank. See, e.g., Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 

1989) (“When a trial court’s order granting summary judgment does not specify the 

ground or grounds relied on for its ruling, summary judgment will be affirmed on 

appeal if any of the theories advanced are meritorious.”). Accordingly, we need not 

address Shaw’s challenges to the other grounds upon which the trial court could have 

granted summary judgment. See Tex. R. App. P. 47.1. We thus overrule Shaw’s sole 

issue.

IV. Conclusion

Having overruled Shaw’s only issue, we affirm the trial court’s judgment.
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/s/ Elizabeth Kerr

Elizabeth Kerr

Justice

Delivered: September 3, 2020