A plaintiff who filed a slip-and-fall suit against the Medical Center of Southeast Texas one day after the statute of limitations lapsed is asking the Ninth Court of Appeals to reinstate his case.
Plaintiff Kevin Roach filed suit against the Medical Center on Aug. 1, 2012, in Jefferson County District Court.
Court records show that on Aug. 2, 2010, Roach had accompanied his father to the Medical Center's Port Arthur facility when he slipped and fell due to water on the floor in the lobby area, which allegedly caused him injury.
While Roach maintained the Medical Center negligently failed to protect him from a discoverable dangerous condition, the health care provider moved for summary judgment, arguing the claim was moot since he had not demonstrated due diligence in effecting service of process within the statute of limitations.
The first request that citation be served on the Medical Center was not until Aug. 24, 2012, court records show.
The trial court granted the motion on June 12, prompting Roach to file an appeal that same day.
On appeal, Roach argues the trial court erred in granting the motion for summary judgment as Medical Center failed to prove its affirmative defense.
“Roach served Medical Center through a professional civil process service company a mere 27 days after limitations expired during which time there were no unexplained delays in service,” Roach’s appellate brief states.
“The trial court reached a conclusion that there was no genuine issue of material fact as to the tolling of the statute of limitations. As a result, the trial court erred by granting the Traditional Motion for Summary Judgment.”
Conversely, the Medical Center contends “statutes of limitations were enacted for a reason” and getting “close” does “not and should not matter.”
The case was set for submission on briefs on Feb. 25.
Roach alleges the defendant should have warned him of the danger and taken measures to reduce the risk.
He is suing for his alleged past and future medical expenses, mental anguish, pain, impairment and lost wages, plus all court costs.
Houston attorney Jack Todd Ivey represents him.
The Medical Center is represented by Woodlands attorney Curry Cooksey of Cooksey & Marcin.
Judge Donald Floyd, 172nd District Court, is the trial court judge presiding over the case.
Case No. E192-762