Opinion issued April 5, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00345-CV
____________
MIGUEL ALEMAN, Appellant
V.
BEN E. KEITH COMPANY, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 2005-11371
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.