Julie McCurley and Randy McCurley, Individually and as Parents, Next Friends and Guardians of Stephen McCurley v. Texas Motor Speedway, Inc. ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00108-CV
___________________________
JULIE MCCURLEY AND RANDY MCCURLEY, INDIVIDUALLY AND AS
PARENTS, NEXT FRIENDS AND GUARDIANS OF STEPHEN MCCURLEY,
Appellants
V.
TEXAS MOTOR SPEEDWAY, INC., Appellee
On Appeal from the 393rd District Court
Denton County, Texas
Trial Court No. 17-3572-393
Before Sudderth, C.J.; Birdwell and Bassel, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellants Julie McCurley and Randy McCurley, individually and as parents,
next friends, and guardians of their son Stephen McCurley, sued Appellee Texas
Motor Speedway, Inc. for injuries Stephen sustained when, while attending a
NASCAR race, his wheelchair hit an uneven, elevated spot on a ramp in the
Speedway’s stands. The McCurleys alleged that because the ramp was “missing
necessary bolts or rivets to secure [it] to the base,” Stephen was flung from his
wheelchair and that the dangerous condition could have been prevented if the
Speedway had conducted a reasonable, proper, and complete inspection of the
premises prior to the race.
The Speedway filed a combined traditional and no-evidence motion for
summary judgment in which it set forth the following grounds: (1) there is no
evidence that a condition on the premises posed an unreasonable risk of harm; (2)
there is no evidence that the Speedway knew or should have known of any danger
posed by missing rivets on the ramp in question; (3) there is no evidence that the
Speedway breached a duty of ordinary care by failing to adequately warn the
McCurleys of the condition or by failing to make it reasonably safe; (4) there is no
evidence that any act or omission on the Speedway’s part was a proximate cause of
Stephen’s fall; and (5) the competent, uncontroverted evidence presented by the
Speedway conclusively shows that it did not know and reasonably should not have
known of the alleged danger before Stephen’s fall and did not breach its duty of
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ordinary care by failing to adequately warn him of the condition or by failing to make
the condition reasonably safe. The trial court granted summary judgment for the
Speedway.
On appeal, the McCurleys raise four issues: (1) whether issues of material fact
existed because of the Speedway’s creation of the dangerous condition and its
constructive knowledge of the condition; (2) whether Paragraphs 16 and 20 of the
affidavit of Kerry Lee, the McCurleys’ expert witness, were conclusory and were
properly stricken by the trial court; (3) whether the Speedway’s “lack of inspection of
the premises and lack of documentation creating the dangerous condition of the ramp
provide issues of fact on liability”; and (4) whether a question of fact exists on the
Speedway’s constructive knowledge of the unreasonable risk of harm. Within their
brief, they focus almost exclusively on the Speedway’s constructive knowledge,
arguing that the case was “decided summarily” on that issue and that the Speedway’s
motion “did not challenge the other elements of the cause of action.” However, as
set out above, the Speedway raised four no-evidence grounds and one traditional
ground, and the trial court’s judgment does not reflect the ground upon which it
granted the motion.
“When an argument is not made challenging every ground on which the
summary judgment could be based, we are required to affirm the summary judgment,
regardless of the merits of the unchallenged ground.” Rollins v. Denton Cty., No. 02-14-
00312-CV, 2015 WL 7817357, at *2 (Tex. App.—Fort Worth Dec. 3, 2015, no pet.)
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(mem. op.); see generally Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 120–21 (Tex. 1970)
(affirming summary judgment based on unchallenged ground of affirmative defense
of limitations but expressing “no opinion as to whether a grant of summary judgment
would be proper or erroneous” on that ground); Ramirez v. First Liberty Ins. Corp., 458
S.W.3d 568, 572 (Tex. App.—El Paso 2014, no pet.) (affirming summary judgment
based on grounds not challenged in brief on appeal without referencing merits of
those grounds). “We can affirm the trial court’s judgment on the basis of even one
unchallenged ground.” Mann v. Denton Cty., No. 02-16-00030-CV, 2017 WL 526309,
at *6 (Tex. App.—Fort Worth Feb. 9, 2017, pet. denied) (mem. op.).
The McCurleys challenge the constructive knowledge summary judgment
grounds in two of their issues, arguing that “an inference of constructive knowledge
inherently presents a fact question,” and they allude to the “creation of the dangerous
condition,” but they do not challenge the Speedway’s remaining summary judgment
grounds. Accordingly, we affirm the trial court’s judgment on the unchallenged
grounds without reaching the merits and overrule the McCurleys’ issues as moot.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: December 5, 2019
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