BEAUMONT – The 9th District Court of Appeals affirmed a trial court's ruling over an injury allegedly sustained at a boat dock slip.
Appellant Jessie Charles Horton sought an appeal of the 284th District Court in Montgomery County's ruling granting summary judgment to Walden Marina.
"In three issues, Horton argues that the trial court erred in (1) striking Horton’s affidavit because it was competent summary judgment evidence; (2) granting summary judgment on Horton’s premises liability claim because a genuine issue of material fact exists as to each challenged element; and (3) granting summary judgment for the defendant on Horton’s breach of implied warranty of suitability claim because the claim was timely filed, the 'as is' provision in the contract does not waive the warranty, and the evidence raises a genuine issue of material fact as to each challenged element. We affirm," the court stated in its Sept. 28 opinion.
According to the opinion, Horton filed his first amended petition in 2013, two years after his 2011 fall off the dock at the Marina that he claimed was due to broken wooden board. Countering his claims, the Marina filed no-evidence motions for summary judgment regarding the liability and negligence against it.
On the first argument that Horton’s personal affidavit of injury was not competent, the appeals court considered Ford Motor Co. v. Ridgway 2004 and the reasoning that “the non-movant, here the plaintiff, must produce summary judgment evidence raising a genuine issue of material fact to defeat the summary judgment,” according to the opinion.
“In this case, the trial court granted Walden Marina’s summary judgments without specifying the grounds,” the appeals court ruled.
On the second issue in which Horton argued the trial court erred in granting summary judgment on his premises liability claim, the appeals court considered several precedent cases, specifically addressing that Horton did not produce evidence that it “controlled any portion of slip C-11 including the deck Horton rented and where his injuries allegedly occurred,” according to the opinion. The marina argued that Horton had not presented evidence that the marina had knowledge of the allegedly defective condition on the decking where the plaintiff claimed he fell.
“Even if the trial court erred in striking Horton’s affidavit, and even if Horton had created a fact issue on whether Walden Marina controlled the decking where Horton fell, we conclude that Horton failed to raise a genuine issue of material fact regarding whether Walden Marina had actual or constructive knowledge of the alleged premises defect on the C-11 decking where he fell,” the appeals court ruled, adding that the court did not err in granting Marin's summary judgment on Horton’s premises of liability, negligence and damages claims.
Lastly, Horton’s argument that the trial court was mistaken about the timeliness of his claim when it granted summary judgment for the Marina based on an “as is” provision that did not waive the warranty. Considering Gym-N-I Playgrounds Inc. v. Snider 2007, the appeals court found favor for the Marina.
“Even assuming without deciding that the breach of implied warranty of suitability applied to a non-commercial, personal injury premises liability claim, the 'as is' clause in the Slip Rental Agreement would bar this claim,” according to the opinion.