Opinion
No. 04-05-00561-CV
Delivered and Filed: April 26, 2006.
Appeal from the 37th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CI-04306, Honorable John D. Gabriel, Jr., Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Lisa Espinoza sued her former employer, Universal City Animal Hospital, Inc. (UCAH), for personal injuries sustained during the course and scope of her employment. On appeal Espinoza contends that the trial court erred in granting a take-nothing summary judgment in favor of UCAH. We affirm the trial court's judgment.
Background
Espinoza filed suit against UCAH on March 20, 2002 "to recover for personal injuries sustained by Plaintiff in an incident that occurred on Defendant's premises on or about March 1, 2000, and in other repetitious trauma events thereafter when Plaintiff returned to work and was required to lift in excess of her limitations." Espinoza, a veterinarian technician, claimed specifically that she was injured while assisting in the transport of a 133-pound animal, even though she had alerted her employer that she was not to lift, carry, push, or pull in excess of her limitations due to a 1997 back surgery. UCAH moved for summary judgment in a hybrid motion, maintaining that Espinoza's claim was barred by the two-year statute of limitations for personal injury actions and that there was no evidence to support the claim of "repetitious trauma" after March 1, 2000. Espinoza responded with a personal affidavit, in which she asserted that she suffered an injury in July of 2000 that was the result of the continuous and repetitious performance of her employment duties in excess of her limitations, and that in October of 2000 her doctor advised her to discontinue her current employment. UCAH objected to Espinoza's summary judgment evidence on the grounds that it was conclusory and contained inadmissible hearsay. The trial court sustained these objections and granted UCAH's motion for summary judgment. In its order, the trial court specified that Espinoza's claim was barred by the statute of limitations and that Espinoza failed to produce any evidence to support a potential negligence claim within the permitted limitations period.
Summary Judgment Standard of Review
We review a summary judgment ruling under a de novo standard of review. Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.). A traditional motion for summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law on a ground expressly set forth in the motion. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of a summary judgment, we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Nixon, 690 S.W.2d at 549. Additionally, we assume all evidence favorable to the non-movant as true. Id. at 548-49. A no-evidence summary judgment is improper if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). More than a scintilla of evidence exists if it would allow reasonable and fair-minded individuals to differ in their conclusions. Forbes, 124 S.W.3d at 172. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id.
Analysis
Espinoza sued UCAH for failing to provide a safe work environment. A suit for personal injury must be brought no later than two years after the day the cause of action accrues. See Tex. Civ. Prac. Rem. Code Ann. § 16.003(a) (Vernon 2002). Espinoza contends that summary judgment was improperly granted to UCAH because a genuine issue of fact exists as to when the statute of limitations began to run.
The statute of limitations begins to run when the cause of action accrues. See Waxler v. Household Credit Services, Inc., 106 S.W.3d. 277, 279 (Tex.App.-Dallas 2003, no pet.). The determination of when a cause of action accrues is a question of law. Id. at 279. As a rule, the Supreme Court of Texas has held that "a cause of action accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred." See S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). Accordingly, when the elements of duty, breach, and resulting injury are present, a tort action accrues. See Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 776 (Tex.App.-Dallas 2005, no pet.). At that time, the statute of limitations begins to run. Waxler, 106 S.W.3d at 280. If the act complained of constitutes a legal injury to the plaintiff, the wrong is "completed" and the cause of action accrues "from the time the act is committed, even where little, if any, actual damage occurs immediately on commission of the tort." Id. (citing Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex. 1967)).
A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense by proving when the cause of action accrued and negating the discovery rule, if it applies or has been pleaded. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). In this case, the discovery rule was not pled by Espinoza and it is not applicable because Espinoza was aware of her injury on the very day it occurred, March 1, 2000. See Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d 716, 721 (Tex.App.-San Antonio 1998, pet. denied) (holding that the discovery rule does not apply to situations in which the traumatic or injurious event causing personal injury is sudden and distinguishable, and the plaintiff knew that injury occurred at the time the event occurred, even if the plaintiff did not know the full extent of injury until much later).
Espinoza has consistently stated, in her petition, in her affidavit, and in discovery responses, that she injured her back while lifting a heavy animal on March 1, 2000. In fact, Espinoza acknowledged at her own deposition, while referring to the March 1, 2000 incident, that "I told [the veterinarian on duty] at the time [of the lifting of the animal] that I knew my back was starting to hurt." By her own admission, Espinoza's initial injury occurred on March 1, 2000. She immediately knew that she was injured and knew the cause of her injury, which was sufficient to commence the accrual of her cause of action. UCAH met its burden by proving that Espinoza's cause of action accrued on March 1, 2000, more than two years before suit was filed on March 20, 2002. Accordingly, the trial court properly granted UCAH's traditional motion for summary judgment based on limitations.
With regard to Espinoza's claim that she suffered a separate injury in July of 2000 as a result of "repetitious trauma," UCAH moved for a no-evidence summary judgment asserting that Espinoza had failed to produce any evidence of causation to support such a claim. A cause of action for negligence must produce evidence of a duty, a breach of that duty, proximate cause, and damages. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995); Avalos v. Brown Auto. Ctr., Inc., 63 S.W.3d 42, 47 (Tex.App.-San Antonio 2001, no pet.). A plaintiff must plead and prove that the defendant's negligence is the proximate cause of her injury. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).
Espinoza's response to the motion for summary judgment consisted of her one-page personal affidavit. It states, in pertinent part:
On March 1, 2000, I was lifting a pig that weighed in excess of my restrictions and injured my back. I took two days off from work to rest and returned after that. My employer continuously and repeatedly made me work in excess of my limitations and restrictions. In July of 2000 I re-injured my back as a result of the continued lifting and finally in October of 2000 I was seen by a medical provider and advised that I could not work in my current employment.
UCAH argues that the affidavit is conclusory. Conclusory statements of fact are not proper summary judgment evidence. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). A conclusory statement is one that does not provide the underlying facts to support the conclusion. Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.App.-Texarkana 2000, no pet.). To serve as competent summary judgment proof, an affidavit must be clear, positive, direct, credible, free from contradiction, and susceptible of being readily controverted. See Tex. R. Civ. P. 166a(c); Haynes, 35 S.W.3d at 178. An affidavit that makes "self-serving, conclusory statements without any underlying factual detail" fails that requirement. Haynes, 35 S.W.3d at 178.
Espinoza has not provided evidence of the factual details regarding the July 2000 incident or of the "repetitious trauma." We do not know what she lifted, how heavy it was, if she was lifting by herself, what her restrictions or limitations were, or if she was forced by UCAH to do the lifting. Accordingly, Espinoza's affidavit was impermissibly conclusory. Furthermore, Espinoza's affidavit contains prohibited hearsay. The statement "in October of 2000 I was seen by a medical provider and advised that I could not work in my current employment" was used to prove the truth of the matter asserted. See Tex. R. Evid. 801(d). Merely stating that the affidavit is based on personal knowledge is not sufficient to save the affidavit from a valid hearsay objection. See Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 468 (Tex.App.-San Antonio 1988, no writ) (holding that statement in affidavit stating that "we were advised" as to certain matters was incompetent as summary judgment evidence). In addition, Espinoza did not present any medical evidence to prove that her injury was proximately caused by the negligence of her employer. See Collins v. Baptist Hosp. of Southeast Tex., No. 09-98-069-CV, 2000 WL 84881, at * 2-3 (Tex.App.-Beaumont Jan. 27, 2000, no pet.) (holding that nurse who claimed to have injured her back while working at hospital was required to present medical evidence or expert testimony linking the alleged negligence to her injury).
Conclusion
The judgment of the trial court is affirmed.