Miguel Aleman v. Ben E. Keith Company ( 2007 )

Opinion issued April 5, 2007

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-06-00345-CV

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MIGUEL ALEMAN, Appellant

V.

BEN E. KEITH COMPANY, Appellee

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On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2005-11371

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CONCURRING OPINION

I join the majority opinion except in its discussion of the claim of appellant, Miguel Aleman, against appellee, the Ben E. Keith Company ("Keith"), for Keith's failure to properly maintain equipment. Relying on premises liability cases, the majority notes that Aleman produced no evidence that he was injured by the negligent activity of Keith's failure to maintain the trailer in question. However, as noted by Aleman, his claim against Keith is a straight-forward negligence claim, not a premises liability claim.

Aleman asserts that he produced more than a scintilla of evidence that Keith failed to maintain the refrigeration unit in its trailer. He testified that Keith did not perform its own required inspection of its trailers. Aleman also notes that the hose to the unit inside the pertinent trailer was improperly leaking water inside the trailer on the day of the incident. Moreover, the evaporator in the trailer had been fixed after the incident because it was not working properly.

However, the critical point is that Aleman presented no evidence establishing the condition of the evaporator before the incident or whether a condition, if any, of the evaporator should have been detected or repaired by Keith prior to the incident as part of its duty to maintain the trailer. See Simmons v. Briggs Equip. Trust, No. 01-05-00837-CV, 2006 WL 1766824, at *4 (Tex. App.--Houston [1st Dist.] June 29, 2006, no pet.). Thus, Aleman presented no evidence that Keith breached its duty to maintain the trailer. See id. It necessarily follows that he presented no evidence that any such breach proximately caused his injuries.

Accordingly, I agree with the majority that the trial court did not err in granting Keith's no evidence summary judgment motion on Aleman's claim that Keith failed to properly maintain its equipment.  

   Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Justice Jennings, concurring.