Former owner says he is not liable for woman's fall at coffee shop

John Suayan, Galveston Bureau Oct. 10, 2011, 6:47am

GALVESTON - One of the defendants in a local woman's lawsuit stemming from a fall at a Dickinson establishment has filed a motion for summary judgment.

The Sept. 23 motion, filed in Galveston County Court at Law No. 2, asserts Patrick C. Restivo "is entitled to judgment because the uncontradicted summary judgment establishes as a matter of law that Restivo did not have control of the premises at which the plaintiff (Holly C. Roell) allegedly fell and allegedly injured herself."

Ruell's December 2010 lawsuit claims Restivo, Chuck Schmidt and Joseph Shipley bear responsibility for the incident, which occurred on Dec. 6, 2008, because the venue was owned or controlled by either individual.

Restivo was the past owner while Schmidt and Shipley are his successors, according to court documents filed at the time.

The original petition explains that Roell entered the premises to order a cup of coffee and fell as she attempted to take a seat.

According to the plaintiff, the place was dimly lit and the stool was too high.

Restivo argues "he had leased the property and did not retain any control over it" when Roell reportedly injured herself.

Moreover, the motion insists "an owner/lessor of property has no duty to his tenants or their invitees for any dangerous conditions on the leased premises."

"Even if the plaintiff/invitee were to establish everything alleged in her petition, Restivo, the owner/lessor, would not be liable to the plaintiff/invitee for the allegedly dangerous conditions on the leased premises because the owner/lessor had, in fact, relinquished possession of the premises to the lessee," it says.

Attorney Kenneth C. Kaye of League City is representing Restivo.

Cause No. 64,222

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