Court of Appeals of Texas, Dallas.

Rose M. WORTHAM, Appellant,

v.

OTIS ELEVATOR COMPANY, Appellee.

No. 05-99-00437-CV.

|

May 25, 2000.

Before Justices JAMES, WRIGHT and BRIDGES.

OPINION

JAMES.

*1 Appellant Rose M. Wortham appeals the trial court’s orders granting summary judgments in favor of appellee Otis Elevator Company (Otis). In two issues, Wortham generally contends the trial court erred in granting Otis’s motions for summary judgment on her negligence and negligence per se claims. We affirm.

Background

Wortham sued Otis alleging that, while she was an employee of Southwestern Bell Telephone Company, an elevator in her office building malfunctioned and closed on her. In her petition, Wortham alleges she was “struck in an extremely brutal fashion by the door mechanism of the elevator as it clapped down on [her] back, neck and wrists in a horrific manner.” She claims the elevator door would not open, and she was stuck for a period of time causing her physical pain, suffering and mental anguish. According to Wortham, Otis was responsible for the manufacture, operation and maintenance of the elevator.

Standard of Review

When a motion for summary judgment is presented under rule 166a(i) asserting there is no evidence of one or more essential elements of the non-movant’s claims upon which the nonmovant would have the burden of proof at trial, the movant does not bear the burden of establishing each element of its own claim. General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet. h.). Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard as we apply in reviewing a directed verdict. See Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex.App.-Austin 1998, no pet.). Thus, our task as an appellate court is to ascertain whether the non-movant produced any evidence of probative force to raise a fact issue on the material questions presented. Id. We consider all the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered and disregard all contrary evidence and inferences. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119 (1998). A no-evidence summary judgment is properly granted if the nonmovant fails to present more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. Fiesta Mart, 979 S.W.2d at 70-71. Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Havner, 953 S.W.2d at 711.

In reviewing a “traditional” summary judgment under rule 166a, we apply the following well-known standards: (1) the movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). When, as here, the defendant moves for summary judgment, the defendant must establish by summary judgment proof that, as a matter of law, there is no genuine issue of fact as to one or more of the elements essential to the plaintiff’s cause of action. See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991). After a defendant produces evidence entitling him to summary judgment, the burden shifts to the plaintiff to present evidence creating a fact issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). We affirm a summary judgment only if the summary judgment record establishes the right to summary judgment as a matter of law. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). We review summary judgments de novo to determine whether a party established its right to prevail as a matter of law. See Howard v. INA County Mut. Ins. Co., 933 S.W.2d 212, 216 (Tex.App.-Dallas 1996, writ denied).

*2 The decision to admit or exclude evidence is within the trial court’s sound discretion. See Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). On appeal, we review a trial court’s evidentiary decisions by an abuse of discretion standard. See Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983).

Discussion

Approximately one year after Wortham filed suit, Otis filed a no-evidence motion for summary judgment arguing there was no evidence (1) Otis owed any duty to Wortham, (2) Otis breached any duty of reasonable care it owed to Wortham, and (3) any breach by Otis proximately caused the elevator door to close on Wortham.

The only evidence Wortham produced in response to the motion for summary judgment was the written deposition responses of Paul Vetter, the custodian of Southwestern Bell’s property management records. The deposition by written questions contains a sworn statement in which Vetter acknowledged the “answers to the foregoing questions are true as stated.” Attached to Vetter’s deposition by written questions were documents he produced in response to a subpoena duces tecum. Vetter certified the attached records were exact duplicates of the originals. The attached documents consisted of a copy of a letter written by Howard Gardner to Southwestern Bell accompanied by an elevator inspection report. Gardner’s letter was dated approximately four weeks after the alleged incident occurred. The inspection report contains information that elevator twenty-one, which is the same elevator Wortham contends caused her injuries, was malfunctioning. Specifically, the report states the amount of force generated when the doors close exceeds the American Society of Mechanical Engineers Safety Code for Elevators and Escalators (ASME Code) recommended amount of force by three pounds.

Otis objected to Wortham’s summary judgment evidence on the grounds the documents constituted hearsay and were not properly authenticated. The trial court sustained the objection and granted Otis’s motion to strike the evidence.

Rule 901(a) provides “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Tex.R.Evid. 901(a). This evidence can consist of testimony by a witness that the evidence is what it is claimed to be. See Tex.R.Evid. 901(b)(1). A document can be considered authentic if a sponsoring witness vouches for its authenticity. In re G.F.O., 874 S.W.2d 729, 731 (Tex.App.-Houston [1st Dist.] 1994, no writ). Although Vetter certified the documents were exact copies of the originals, Vetter did not state he has personal knowledge of the facts in the documents, nor did he swear to the truth and accuracy of the documents’ contents. See Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 566-67 (Tex.App.-Houston [14th Dist.] 1997, pet. denied) (one individual’s affidavit insufficient to authenticate facts contained in another individual’s unauthenticated declaration). Additionally, Gardner’s unsworn letter does not lay the proper predicate for the admission of the report itself. Gardner does not state when the elevators were inspected, nor does he state who performed the inspection. We conclude Wortham did not lay a proper predicate for the admission of the documents. As such, the trial court did not abuse its discretion in sustaining Otis’s objection and striking the evidence.

*3 However, assuming arguendo, the trial court did err in striking the documents, the no-evidence summary judgment was still proper on Wortham’s common law negligence claim. In order to prevent summary judgment, Wortham was required to produce more than a scintilla of evidence on each of the three elements of her claim upon which Otis asserted there was no evidence. See Fiesta Mart, 979 S.W.2d at 70-71. Otis claimed there was no evidence Otis breached any duty it owed to Wortham and no evidence that any alleged breach proximately caused Wortham’s damages. In order to establish breach and proximate cause, Wortham was required to produce some evidence showing she was injured by the elevator. Because Wortham failed to produce any evidence in her response to establish the alleged incident even occurred, we conclude the trial court properly granted Otis’s no-evidence motion for summary judgment on Wortham’s negligence cause of action. We overrule Wortham’s first issue.

In its second motion for summary judgment, Otis argued, in part, it was entitled to summary judgment on Wortham’s negligence per se claim because, as a matter of law, Otis did not violate the Texas Health and Safety Code or the City of Dallas Uniform Building Code, as alleged by Wortham.¹ Attached to this motion was the affidavit of David W. Slauter, an Otis employee, who stated that Otis was not the owner of the building in which the elevator was located and Otis did not own the elevator on the date of the alleged incident.

Initially, Wortham complains the trial court erred in overruling her objection to Slauter’s affidavit as being fatally defective. Wortham contends the affidavit is defective because the notary’s acknowledgment does not state how the affiant was identified by the notary as required by section 121.005 and 121.007 of the Texas Civil Practice and Remedies Code. See Tex.Civ.Prac. & Rem.Code Ann. §§ 121.005, 121.007 (Vernon 1997). Having reviewed the notary’s acknowledgment on Slauter’s affidavit, we conclude the acknowledgment substantially complies with section 121.008 of the civil practice and remedies code as a permissible “short form” certificate of acknowledgment. See id. §§ 121.005(b), 121.008. Thus, the trial court did not abuse its discretion in overruling Wortham’s objection.

An unexcused violation of a statute setting an applicable standard of care constitutes negligence per se if the statute was designed to prevent injury to the class of persons to which the injured plaintiff belongs. See El Chico Corp. v. Poole, 732 S.W .2d 306, 312 (Tex.1987). There are several factors to be considered in determining whether it is appropriate to impose tort liability for violation of a particular statute, including: (1) whether the statute is the sole source of any tort duty from the defendant to the plaintiff or merely supplies a standard of conduct for an existing common law duty; (2) whether the statute puts the public on notice by clearly defining the required conduct; (3) whether the statute would impose liability without fault; (4) whether negligence per se would result in ruinous damages disproportionate to the seriousness of the statutory violation; and (5) whether the plaintiff’s injury is a direct or indirect result of the violation of the statute. See Perry v. S.N., 973 S.W.2d 301, 309 (Tex.1998) (op. on reh’g); Ordonez v. M.W. McCurdy & Co., Inc., 984 S.W.2d 264, 268 (Tex.App.-Houston [1st Dist.] 1998, no pet.). Although these factors are not exclusive, they serve as guidelines to assist courts in determining the ultimate question of whether imposing tort liability for violations of a statute is fair, workable, and wise. Ordonez, 984 S.W.2d at 268.

*4 Under her negligence per se theory of liability, Wortham alleged Otis failed to comply with sections 754.011, 754.014, and 754.018 of the Texas Health and Safety Code, as well as sections 5101-5114 of the City of Dallas Uniform Building Code. See Act of May 2, 1993, 73rd Leg., R.S., ch. 65, 1993 Tex.Gen. Laws 148-52 (current version at Tex.Health & Safety Code Ann. §§ 754.011, 754.014, 754.018 (Vernon Supp.2000)); Dallas, Tex., Uniform Building Code §§ 5101-14 (1993). Chapter 754 of the Texas Health and Safety Code deals with the inspection and certification of elevators. The statute provides for the appointment of a nine-member “elevator advisory board” and a commissioner who are responsible for “the adoption of appropriate standards for the installation, alteration, and operation of elevators.” See Tex.Health & Safety Code Ann. §§ 754.012, 754.013 (Vernon Supp.2000). The statute further provides for the certification of elevator inspectors. See id. § 754.017. Other than the duties imposed on the commissioner and board members, the only other duties under the statute are imposed on real property owners to have the elevators on their property inspected and certified. See id § 754.019. If real property owners do not comply with the standards adopted by the board, the commissioner can give notice of noncompliance and take further judicial action as necessary to force compliance. See id. §§ 754.022-754.024.

Slauter’s affidavit established Otis was not the owner of the building on the date of the alleged incident; therefore, we conclude Otis did not violate the statute. Because, as a matter of law, Otis did not violate the stated provisions of the health and safety code, it is not liable for negligence per se under this theory.

Additionally, we have reviewed sections 5101-5114 of the Dallas Uniform Building Code. This ordinance applies to the “design, construction, installation, operation, alteration and repair of elevators” and requires that all new elevators and any installation or major alteration of an elevator conform to the ASME Code. See Dallas, Tex., Uniform Building Code §§ 5101-14 (1993). The ordinance further requires the issuance of a building permit before any new elevator installation and requires certificates of inspection. See id. § 5110. The ordinance imposes a duty on an elevator owner for an elevator’s “safe operation and maintenance” of any elevator. See id. §§ 5112-5113.

Slauter’s affidavit established Otis was not the owner of the elevator in question on the date of the alleged incident. Further, Wortham has not alleged Otis was the owner of the elevator. Because Otis was not the owner of the elevator at the time of the incident, Otis did not violate the municipal ordinance.

Wortham further contends Otis is liable for negligence per se as a third-party tortfeasor under the Texas Workers’ Compensation Act based on Southwestern Bell’s liability as owner of the building and the elevator. See Tex.Lab.Code Ann. § 417.001 (Vernon 1996) (an employee or legal beneficiary may seek damages from a third party who is or becomes liable to pay damages for a compensable injury or death). Wortham seems to argue that if Southwestern Bell violated the statute or ordinance, Southwestern Bell’s liability is imputed to Otis because Otis was under contract with Southwestern Bell to perform the maintenance of the elevators. Although Wortham makes this assertion, she does not cite to any authority to support her proposition that the alleged negligence per se on the part of Southwestern Bell is imputed to Otis. Because her brief does contain a clear and concise argument for these contentions with appropriate citations to authorities and to the record, Wortham has waived this argument. See Tex.R.App.P. 38(h); Keever v. Finlan, 988 S.W.2d 300, 314 (Tex.App.-Dallas 1999, pet. denied). In addition, we find no authority to support Wortham’s argument that any alleged negligence per se by Southwestern Bell is imputed to Otis via the statute.

*5 Without a violation by Otis of any applicable statute or ordinance, Wortham’s negligence per se claim fails as a matter of law. Accordingly we overrule Wortham’s second issue.

We affirm the judgment of the trial court.

	Footnotes
1		Otis’s first motion for summary judgment only argued Wortham had no evidence of the required elements of her common law negligence claim. The second motion was brought addressing Wortham’s claim of negligence per se.