Below please find a sample of this motion I use in court.
Please call my office at (817) 332 1522 if you have any questions regarding your car accident, on the job injury and other liability claim. My practice includes Tarrant County, Dallas county and any state court in Texas.
§ IN THE DISTRICT COURT
VS. § TARRANT COUNTY, TEXAS
§ JUDICIAL DISTRICT
PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT REGARDING NEGLIGENCE
Plaintiff, L S, hereafter referred to as “Plaintiff, requests the Court to grant a summary judgment pursuant to Texas Rules of Civil Procedure 166a regarding Plaintiff’s negligence claim against Defendant, .
In this motion, the Plaintiff is asking the court to rule as a matter of law that as negligent when he ran a red light proximately causing the accident made the basis of this lawsuit. If this motion is granted, the only issue remaining for the jury will be damages.
Plaintiff, , sued Defendant, , for injuries and damages arising from a motor vehicle accident that occurred on October 31, 2017, when Defendant, ran a red light causing Plaintiff’s injuries.
To support the facts in this motion, Plaintiff offers the following summary-judgment evidence attached to this motion and incorporates the evidence into this motion by reference.
Exhibit 1: Plaintiff’s Affidavit
Exhibit 2: Defendant’s Response to Request for Admissions.
To pursue a negligence claim, the Plaintiff has the burden to show that Defendant, negligence was a proximate cause of the collision made the basis of the lawsuit. Additionally, the Plaintiff has the burden to show that Defendant, negligence was the proximate cause of her damages.
III.Traditional Summary Judgment
Plaintiff ’s Cause of Action for negligence
To succeed on a traditional motion for summary judgment on its cause of action, the Plaintiff must show that there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. Tex. R. Civ. P. 166a(c); Denbury Green Pipeline-Tex., LLC v. Tex. Rice Land Partners, Ltd., 510 S.W.3d 909, ___ (Tex. 2017); Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). To meet this burden, the Plaintiff must conclusively prove all essential elements of its claim. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is conclusively established if reasonable people could not differ on the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the Plaintiff establishes its right to summary judgment as a matter of law, the burden shifts to the defendant to present evidence that raises a genuine issue of material fact. See State v. $90,235, 390 S.W.3d 289, 292 (Tex. 2013); Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989).
Plaintiff is entitled to summary judgment regarding negligence because the Plaintiff’s summary-judgment evidence conclusively establishes as a matter of law each essential element of negligence committed by . The essential elements of Plaintiff’s cause of action for negligence against are the following:
1) Duty owed by defendant to plaintiff;
2) breach of that duty;
3) damages proximately caused by defendant’s breach.
Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013).
It is Plaintiff’s position that Defendant, had a duty to exercise ordinary care while operating his motor vehicle, that he breached that duty when he ran a red light, failed to maintain a proper lookout and failed to apply his brakes timely to avoid crashing into Plaintiff’s vehicle. Finally, as a proximate cause of breaching that duty, Plaintiff suffered physical injury to her body.
The Plaintiff pled in her First Original Petition the following:
At the time and on the occasion in question, Defendant, while operating said vehicle failed to use ordinary care by various acts and omissions, including the following, each of which singularly or in combination with others, was a proximate cause of the occurrence in question:
A. In traveling at an excessive rate of speed;
B. In failing to keep a proper lookout;
C. In failing to make a timely application of his brakes;
D. In failing to turn his vehicle to the left/right in order to avoid the collision;
E. In failing to keep his vehicle under control.
A. Plaintiff’s Affidavit
Plaintiff has attached her sworn affidavit and Defendant’s Responses to Request for Admissions which she incorporates these exhibits by reference to support this motion.
Plaintiff testified in her affidavit that:
” On October 31, 2017, I was driving eastbound on the I-30 service road in Fort Worth, Texas. As I approached the intersection of the eastbound I-30 service road and Southbound Summit Avenue, I saw that I had a green light and then proceeded through the intersection. At the moment I entered the intersection, I saw Defendant, was traveling left to right in front of me traveling southbound on Summit Ave. I attempted to brake but crashed into the passenger side door of his vehicle. The collision occurred within one to two seconds from the time I entered in the intersection. Attached as Exhibit A, B, and C are photographs of the scene of the accident. Exhibits A, B, and C fairly and accurately show what the scene of the intersection looked like at the time of the collision made the basis of this lawsuit. After the collision, I spoke to the Defendant, . The Defendant, , stated to me that he ran the red light.”
B. Defendant’s Responses to Request for Admissions
The Defendant admitted the following statements are TRUE in his Responses to
Plaintiff’s Request for Admissions (hereinafter referred to as RFA) to Defendant:
REQUEST FOR ADMISSION 47: In Defendant’s recorded statement to his insurance carrier identified as Exhibit “A” line 149 to line 167, Defendant gave the following answers regarding the traffic control light at the intersection where the collision occurred made the basis of this lawsuit:
Line 149 A: And so I went into the intersection. I did not look up at the light.
Line 151 Q: OK. So the light, was it, was it red at that time when you through it?
Line 153 A: I don’t know. I didn’t see it.
Line 159 Q: OK.
Line 161 A: … I should’ve had a green light.
Line 163 Q: OK. But you, but you’re not sure if you did?
Line 165 A: Um, I can’t state with any certainty.
Line 167 Q: OK.
REQUEST FOR ADMISSION 48: Defendant advised the police officer at the scene of the accident made the basis of this lawsuit that Defendant ran the red light.
B. Police Report
Please find attached as Exhibit “A” a copy of the police report for the accident made the basis of this lawsuit. In the police report the investigating office interviewed the parties and the scene of the intersection. The police officer recorded the admissions of the parties including the Defendant . The police officer recorded the admissions made by the Defendant , that he admitted that he ran the red light. The officer also stated in the report that Defendant, , contributed to the cause of the accident and reached the conclusion that he violated # 15 “ Disregard Stop and Go Signal”.
The Plaintiff argues that reasonable people could not differ on the conclusion to be drawn from the evidence above that the summary judgment evidence proves as a matter of law that Defendant owed a legal duty to Plaintiff to exercise ordinary care (maintain a proper lookout, to timely apply his brakes, and other obligations while driving), that Defendant breached that duty when he ran the red light and crashed into Plaintiff’s vehicle, and that this breach was the proximate cause Plaintiff’s bodily injuries and damages.
The damages for Plaintiff ’s cause of action are unliquidated. A plaintiff moving for summary judgment on its cause of action is not required to prove the amount of the unliquidated damages, only that damages were incurred. See Tex. R. Civ. P. 166a(a); Pinnacle Anesthesia Consultants, P.A. v. Fisher, 309 S.W.3d 93, 100 (Tex. App.—Dallas 2009, pet. denied). Because Plaintiff is entitled to summary judgment on liability and Plaintiff proved the existence of damages, the Court should grant Plaintiff’s Motion for Summary Judgement on liability and set the issue of damages for trial. See, e.g., City of Hous. v. Socony Mobil Oil Co., 421 S.W.2d 427, 429-30 (Tex. App.—Houston [1st Dist.] 1967, writ ref’d n.r.e.) (after court rendered partial summary judgment, issue of damages was tried to jury).
For these reasons, Plaintiff asks the Court to grant this motion and sign an order for partial summary judgement on negligence, set the issue of damages for trial, and all other relief the Plaintiff is entitled to.
THE REYES LAW FIRM, P.C.
1300 Summit Avenue, Suite 518
Fort Worth, Texas 76102
(817) 332-6224 fax
ERIC R. REYES
State Bar #16794350
CERTIFICATE OF SERVICE
This is to certify that on the ______ day of ______________________, 2018, a true and correct copy of the above and foregoing instrument has been forwarded to all attorneys of record via:
________ regular mail.
Eric R. Reyes
CERTIFICATE OF CONFERENCE
“A conference was held with the defense attorney on the merits of this motion and Defendant opposes this Motion. Consequently a hearing is requested.”
Eric R. Reyes