CORPUS CHRISTI - The 13th Court of Appeals recently reinstated a lawsuit claiming a Whataburger employee carrying a condiment tray collided with a woman and injured her.
The lawsuit was brought by Kathy McCarty, who claims she and her husband visited a Whataburger in Clyde on an extended road trip. After she finished filling her drinks at the soda fountain, she began to turn away when a Whataburger employee carrying a condiment tray collided into her.
McCarty alleged that the tray struck her left arm just above the elbow and, after returning to her vehicle, she realized her left arm was bleeding. Over the course of the next two weeks, McCarty experienced pain under her left arm, swollen lymph nodes, and extensive blisters covering her upper left arm, and was later diagnosed as cellulitis. McCarty also developed a heart condition.
Court records show Whataburger filed a combined traditional and no-evidence motion for summary judgment, arguing that it was entitled to summary judgment because “McCarty ha[d] failed to connect the dots between the incident, her infection, and her subsequent heart condition,” which it asserted required expert testimony.
Whataburger further argued that because McCarty had not identified any physician as an expert witness who could “link her infection to a Whataburger tray,” it was “entitled to summary judgment as a matter of law.”
The trial court granted Whataburger summary judgment, and on appeal McCarty argued the trial court erred by granting summary judgment in favor of Whataburger on the totality of McCarty’s negligence.
On June 6, the 13th Court reversed the trial court’s judgment and remanded the case for further proceedings.
“Accordingly, having concluded that McCarty produced sufficient evidence to create a genuine issue of material fact as to the challenged elements and that Whataburger never established the right to judgment as a matter of law on its traditional motion for summary judgment, we sustain McCarty’s first issue,” the opinion states.
Appeals case No. 13-23-00028-CV